compat bhargava order

COMPETITION APPELLATE TRIBUNAL

Appeal No. 44 of 2013

[Under Section 53B of the Competition Act, 2002 against the order dated 23.6.2011 passed by the Competition Commission of India in case no. 13/2009]

With

I.A. Nos. 81& 82 of 2013, I.A. Nos. 12 & 17 of 2014

CORAM

Hon’ble Mr. Justice V.S. Sirpurkar Chairman

Hon’ble Shri Rahul Sarin Member

Hon’ble Smt. Pravin Tripathi Member

In the matter of:

Jitender Bhargava …Appellant

Vs.

Competition Commission of India …Respondent No. 1

Jet Airways (India) Ltd. …Respondent No. 2

Ethiad Airways PJSC ...Respondent No. 3

Appearances: Shri Ramji Srinivasan, Sr. Advocate with Shri Srinivas Kotni, Shri Mukul Chandra, Shri Ajay Yadav and Shri Pradeep, Advocates for the Appellant. Shri Balbir Singh & Ms. Monica Benjamin, advocates with Dr. Shabistan Aquil & Sriraj for Respondent No. 1 / CCI. Shri U.A. Rana with Ms. Mrinal Mazumdar and Mr. Raghav Shankar, Advocate for Respondent No. 2 / Jet Airways. Shri Rajshekhar Rao, Ms. Nisha Uberoi, Mr. Abir Roy, Ms. Shruti Aji Murali, Advocates for Respondent No. 3 / Ethiad Airways PJSC.

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ORDER

27th March, 2014

This appeal is filed by one Shri Jitender Bhargava (the Appellant)

against the Order passed by the Competition Commission of India

(hereinafter called CCI) under Section 31(1) of the Competition Act 2002

(the Act) permitting the Combination of two airlines namely Etihad Airways

PJSC and Jet Airways (India) Ltd. In their majority order, the CCI have

permitted and have expressed in para 57 of the Order that in pursuance of

the notice given by these two airlines under Section 2(6) of the Act and

after considering the relevant factors mentioned in sub section (4) of

Section 20 of the Act, the CCI is of the opinion that the proposed

combination is not likely to have appreciable adverse effect on competition

in India and therefore, the CCI accords its approval under provisions of sub

section (1) of Section 31 of the Act. In para 58 the CCI has further clarified

that this approval should not be construed as immunity in any manner for

subsequent proceedings before the CCI for violations of other provisions of

the Act. It is also expressed that it is incumbent upon the parties to ensure

that this ex ante approval does not lead to ex post violation of the

provisions of the Act.

2. The Appellant Shri Jitender Bhargava contends in para 2 of the

Appeal Memo that the Appellant is a public spirited person who has been

intrinsically connected with the Indian aviation industry by virtue of his

position as former executive director of Air India. It is also claimed that

since his retirement from his 20 years of association with Air India, the

Appellant has taken up the cause of troubled national carrier and has

publicly voiced his concerns in relation to the policies adopted by the

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Government which has adversely affected the national carrier and thereby

its passengers. It is also claimed that the Appellant has penned his

concerns in relation to the policies adopted by the Central Government in

the administration of national carrier in his book titled as “Descent of Air

India”. This is all that the Appellant has to say in the memo of appeal about

his locus standi.

3. As per the Appellant, the proposed combination which has been

approved by the CCI, between Etihad Airlines and Jet Airways seeks to

eliminate the competition in the market for international air passengers

which would not only impact the operations of Air India and other domestic

airlines but ultimately the consumers who would be left without any choice.

The Appellant also asserts that by the approval of the proposed

Combination the CCI has defeated the very object of Competition Act which

is to promote and sustain competition in markets and protect the interest of

consumers and ensure freedom of trade carried on by other participants in

the markets. It is his complaint that the CCI failed to take note of

representations made by the Appellant at the time of assessing the

proposed transaction, evidenced by the fact that there has been no

mention of it in the impugned order. The Appellant adds, moreover even

the concerns expressed by Air India have not been appreciated by

Respondent no. 1 (CCI) in passing its impugned order.

4. When specific query was made by this Hon’ble Tribunal to the

learned Senior Counsel appearing on behalf of Respondent No. 1 Shri

Ramji Srinivasan, he was candid enough to state that no specific

representation was ever made to the CCI by the appellant. We could have

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proceeded to reject the Appeal only on this ground of misrepresentation

but we do not propose to do so in view of the lengthy arguments which

went on before us at the time of motion hearing.

5. In short, the contention raised is, that this Combination which has

been approved of, has not been given by following due procedure of law as

contemplated in Sections 5, 6, 29, 30 and 31 of the Act.

6. The learned Senior Counsel initially concentrated on the route taken

by the CCI of Section 31 and a serious contention was raised that the route

via Section 31 (2) was not liable to be taken in this case as it would have

been more appropriate on the part of CCI to take the route of Section 29

which would have enabled the CCI to take into consideration the views of

general public and also other stake holders interested in the matter.

7. Objection was taken to the tenability of Appeal by the other side on the

ground of locus standi. According to Shri Harish Salve as well as Shri Balbir

Singh appearing on behalf of the Airlines and CCI respectively, there was a

total and complete lack of locus standi in the Appellant. The Respondents

went on to argue, merely because the Appellant was a former Executive

Director of Air India, the competitor Airline, it did not provide any locus standi

to the Appellant as he was no more connected with Air India. The learned

counsel also reiterated the fact that Air India which was heard in the matter

had not come up with the Appeal. The learned counsel therefore argued the

fact that the Appellant was claiming locus standi through its nexus with Air

India, which was non-existent then. It would have been appropriate for Air

India to come in appeal and once Air India did not challenge the

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Order, there was obvious and complete absence of the locus standi in the

Appellant.

8. We do not want to go into the procedural aspect which was also

argued in great detail before us since we do not want to entertain this

Appeal on the sole ground of total and complete lack of locus standi on the

part of the Appellant.

9. The power of the CCI emanates from Sections 5 and 6 to approve the

Combination of companies of a certain standard. It must be realized that

this Combination has not been objected to by any shareholder or any office

bearer such as Director or otherwise by any other competitor companies.

Instead it is being opposed by complainant in his private capacity. Further,

Air India which would have been the most affected person by this

Combination has also not chosen to file any appeal against the Order. This

is apart from the fact that the Combination appears to have been

thoroughly examined by the CCI under Section 31 of the Act.

10. Since we are not expressing any opinion on the correctness or

otherwise of either procedure taken or the reasoning by the CCI we desist

from expressing anything on those aspects.. However, in our opinion there

was no locus standi whatsoever in the Appellant for the following reasons:-

Section 53(B) is in the following terms:-

(1) The Central Government or the State Government or a local

authority or enterprise or any person aggrieved by any direction,

decision or order referred to in clause (a) of Section 53(A) may prefer

an appeal to the Appellate Tribunal.

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Section 53A provides for establishment of an Appellant Tribunal, sub

clause (1) runs as under:-

a) to hear and dispose of appeals against any direction issued or

decision made or order passed by the Commission under sub

sections (2) and (6) of section 26, section 27, section 28,

section 31, section 32, section 33, section 38, section 39,

section 43, section 43A, section 44, section 45 or section 46 of

this Act.

b) to adjudicate on claim for compensation that may arise from the

findings of the Commission or the orders of the Appellate

Tribunal etc.

11. It is therefore axiomatic that in order to be able to file an appeal by

any person he has to be an aggrieved person. Inspite of lengthy arguments

we are not convinced that Shri Jitender Bhargava, the Appellant can be in

any manner be an aggrieved person, particularly, by the approval of the

Combination.

12. Learned Senior Counsel very seriously argued that as the

Combination has been approved of on an incorrect appreciation of facts

and law, the Appellant feels aggrieved. We do not see any reason firstly to

discuss the merit or demerits of the logic and rational in the Order of CCI,

particularly because that could have been questioned by the person really

aggrieved. Since we do not see the Appellant as an aggrieved person we

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do not wish to go into that aspect. Shri Ramji Srinivasan also did not press

this point further.

13. The further reason according to the learned Senior Counsel was, that

there would be a likelihood of increase in fares because of two powerful

airlines coming together and thereby putting an end to the competition.

14. We are afraid the contention is pre mature. That has not happened

and if at all it happens it will always be proper for an aggrieved person to

come before the appropriate authority for redressal of the grievance. We

hasten to add that in its Order, CCI has specifically so mentioned.

15. Next submission of the learned counsel was, that the Appellant in his

personal capacity could have been a passenger and therefore could have

challenged. We hasten to add that a distant uncertain step of an increase in

fares would not clothe any so called passenger with a locus standi to

challenge the CCI Order. That is also not claimed to be a reason in the

appeal memo.

16. During pendency of Appeal one association called Air Passengers

Association of India sought to join this by an impleadment application. It is

an admitted position that the present Appellant or the so called Air

Passengers Association were not there before the CCI. This is apart from

the fact if the Appeal as filed was without any locus standi, it amounted to

no appeal in law at all. If it is so, nobody could have joined the Appeal as

an Appellant. We however, express specifically that if such an association

thinks of filing any proceeding before an appropriate forum, it is free to do

so.

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17. In short, we find that there is no locus standi in the Appellant and on

that count alone we dismiss the Appeal but without any cost.

[Justice V.S. Sirpurkar] Chairman

[Rahul Sarin] Member

[Pravin Tripathi] Member



[Under Section 53B of the Competition Act, 2002 against theCase No. 3/2001 dated 6.2.2014 passed by the Competition Commission]

With

I.A. 18 of 2014

CORAM




In the matter of:

Sarthak Industries Ltd. …Appellant

Vs.

Competition Commission of India …Respondent

Appearances: Mr. Jagjit Singh, advocate for the Appellant.

ORDER 27th March, 2014

Learned counsel Mr. Jagjit Singh seeks to withdraw this appeal in

view of the order passed by Hon’ble Supreme Court. Appeal is allowed to

be withdrawn and be treated as disposed of.



[Pravin Tripathi]

Member



[Under Section 53B of the Competition Act, 2002 against the Case No. 16/2011 dated 9.8.2012 passed by the Competition Commission of India]

With

I.A. 37 of 2013

CORAM




In the matter of:

Coordination Committee of Artist & Technicians of West Bengal Film & Television Industry …Appellant

Vs.

Sajjan Khaitan & Ors. …Respondent

Appearances: Mr. Arijit Bhattacharjee and Mrs. Sarbani Kar, advocates for the Appellant.

Ms. Anju Jain, advocate for CCI.

ORDER 27th March, 2014

Matter closed. Judgement reserved.



[Pravin Tripathi]

Member

compat bhargava order

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