| Headnote |
Competition Law: Competition Act, 2002 – ss. 2(h), 19(4)(g)and 28 – “Enterprise” – Applicability of the Act – CompetitionAppellate Tribunal affirmed the findings recorded by the CompetitionCommission of India on various facets of abuse of dominant positionagainst the Coal India Limited and its subsidiary company – Whetherthe Competition Act, 2002 applies to the appellants or not – Held:The appellants are Government Companies – They were created totake the place of the Central Government in the matter of supervisingcontrol and managing the affairs of the mines – The “Sovereignfunction” of the Government has been excluded from the ambit ofs.2(h) – Carrying on business in mining, cannot be described as asovereign function – Hence, the appellant is a person within themeaning of s.2(h) , therefore comes under the preview of“enterprise” – The appellants being State, have a duty to keepuppermost, in their minds, the goal in Art.39(b) – There is nothingin the definition which excludes a State monopoly which is even setup to achieve the goals in Art.39(b) – When Parliament enacts laws,it is deemed to be aware of all the existing laws – Parliament wasaware of the Nationalisation Act – Therefore the express referencein s.19(4)(g) of the Act to monopolies created under Statutes asalso Government Companies and Public Sector Units for determiningexistence of dominant position indicates the intention of Parliamentto bring State Monopolies, Government Companies and PublicSector units within the purview of the Act – No reason to hold thata State Monopoly being run through the medium of a GovernmentCompany, even for attaining the goals in the Directive Principles,will go outside the purview of the Act – As a matter of fact there maybe forums other than the CCI whereunder redress may be soughtagainst action of the appellants – But that by itself cannot result indenial of access to a party complaining of contravention of a law which is otherwise applicable – The appellants cannot resist theimposit ion of standards of fairness and the duty to avoiddiscriminatory practices when a specialized forum has been createdby Parliament under the Act – No merit in the contention of theappellants that the Act will not apply to the appellants for the reasonthat the appellants are governed by the Nationalisation Act andthat Nationalisation Act cannot be reconciled with the CompetitionAct – The Coal Mines (Nationalisation) Act, 1973 – ss. 5, 11, 28and 32 – Constitution of India – Art. 39 (b).Competition Act, 2002 – s.28 – The Coal Mines(Nationalisation) Act, 1973 – s.32 – Conflict between s.28 of theCompetition Act, and s.32 of the Coal Mines (Nationalisation) Act– Under s.32 of the Nationalisation Act, the mining companiescannot be wound up – This stands in contrast to s.28 of the Actwhich empowers the CCI to divide enterprises abusing dominantposition including adjustment of contracts, formation of windingup of enterprises among other things – Held: Parliament hasauthored both the Act – There is no question of lack of legislativecompetence – The words of s.28 of the Competition Act do not admitof reading down the same – If s.28 of the Competition Act is evokedand a direction is given to order division, it would be inconsistentwith the provisions of the Coal Mines (Nationalisation) Act – It ismade apparent by way of abundant caution in s.28(1), that all thatthe CCI could order would be notwithstanding anything containedin any other law for the time being in force – Parliament hasintended, in order to ensure the proper implementation of the Act,confer power to order division of an enterprise enjoying dominantpower – This would include the appellants as well.Competition Act, 2002: ss. 2(r), 2(s), 2(t), 3, 4, 19 – AntiCompetitive Agreements – Abuse of Dominant Position – HistoricalBackground of the Act – Scheme and Provisions of the Act –Discussed.Competition Act, 2002: ss. 18, 26, 27, 33, 36 and 41 –Competition Commission of India – Director General – Power andDuties – Discussed.The Coal Mines (Nationalisation) Act, 1973 – ss. 3, 4, 5 and11 –Preamble and Object – Discussed. Word and Phrases: Constitution of India – Art.39 (b) –“Common Good” – The expression ‘common good’ in Art.39(b) in aBenthamite sense involves achieving the highest good of themaximum number of people – The meaning of the words ‘commongood’ may depend upon the times, the felt necessities, the directionthat the Nation wishes to take in the future, the socio-economiccondition of the different classes, the legal and Fundamental Rightsand also the Directive Principles themselves.Report/Recommendation – Competition policy – RaghavanCommittee Report – Discussed. |
