M.L. Tayal, Member (Supplementary) - The present information has been filed under Section 19(1)(a) of the Competition Act, 2002 (the Act) on 06.09.2011 by Pitambra Books Private Limited, Delhi (Informant) against Primary Education Department, Office of the Director, Andhra Pradesh Open School, Andhra Pradesh (Opposite Party-1), Sh. S.V Prasad, Chief Secretary and Chairman, Andhra Pradesh Open School, Govt. of Andhra Pradesh, Hyderabad (Opposite Party-2) and Dr. D. Sambasiva Rao, Principal Secretary and Vice Chairman, Andhra Pradesh Open School, Govt. of Andhra Pradesh, Hyderabad (Opposite Party-3) (collectively called as Opposite Parties) alleging that the conduct of the Opposite Parties is in violation of Section 3 and Section 4 of the Act.

2. The Commission has passed an order under section 26(2) of the Act in respect of the above information and I am in overall agreement with the reasoning given and conclusions drawn therein that there does not exist a prima facie case for making a reference to the Director General for conducting investigation into the matter and accordingly, the proceedings related to this matter are closed forthwith under section 26(2) of the Act.

3. However, with regard to the observations of the Commission in the abovementioned order at para 12, I hold a different opinion. Contrary to what has been said in the aforesaid para, I am of the considered view that none of the opposite parties named in instant matter falls within the definition of 'enterprises' as envisaged in section 2(h) of the Act. The observations of the Commission in the aforesaid para are as under;

"The Commission observes that as per the information in the instant matter the Opposite Parties named in the allegation are associated with the invitation of tender for procuring the services of printing, supply and distribution of text books. With regard to this activity of inviting tender for procurement of services of printing, supply and distribution of text books, they would fall under the definition of 'enterprise' within the meaning of Section 2(h) of the Act and their conduct is therefore liable for examination under Section 4 of the Act."

4. Before proceeding further it would be pertinent to have a look at the definition of 'enterprise' which also finds mention in the order of the Commission. Section 2(h) of the Competition Act, 2002 defines an 'enterprise' as under;

"Enterprise means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.

Explanation. - For the purposes of this clause,"