Monopolies and Restrictive Trade Practices Commission
Director General (Investigation And ... vs Holy Angels School on 15 May, 1998
ORDER
A.N. Divecha, J. (Chairman)
1. This Full-Bench is constituted in view of the order passed by a Division Bench of this Commission on September 3, 1997, in this proceeding.
2. It would be quite proper to look at the facts of this case in a nutshell. A notice of enquiry came to be issued by this Commission on February 1, 1993 against the respondent under Section 10(a)(iv) and Section 37 of the Monopolies and Restrictive Trade Practices Act, 1969 (the "MRTP Act" for brief), charging the respondent with adoption of and indulgence in certain restrictive trade practices falling within the purview of Section 2(o)(ii) thereof. It appears that the Division Bench which passed the order on September 3, 1997 was faced with the question as to whether or not "education" is a "trade" and/or "service" for the purposes of the Monopolies and Restrictive Trade Practices Act. A ruling of the Supreme Court in the case of Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178 was cited before it. A ruling of the High Court of Karnataka in the case of NITTE Education Trust v. Union of India [1997] 89 Comp Cas 390 was also cited taking the view that "education" is neither a "trade" nor "service" for the purposes of the Monopolies and Restrictive Trade Practices Act. In the context of the aforesaid two rulings, the Division Bench thought that the matter should be referred to a larger Bench, inter alia, for deciding the question as to how far the aforesaid two rulings would govern the case. That is how this Full Bench has come to be constituted.
3. In fact, the Division Bench by its aforesaid order passed on September 3, 1997 appears to have referred the entire matter to the Full Bench for its disposal. We have, however, thought it fit to confine our attention only to the question as to whether or not a ruling of a High Court is binding on this Commission and, if it is so, how far it is binding.
4. So far as the ruling of the Supreme Court is concerned, it is binding on all courts by virtue of Article 141 of the Constitution of India. Article 144 thereof enjoins a duty on all authorities, civil and judicial, in the territory of India to act in aid of the Supreme Court.
5. It cannot be gainsaid that this Commission is invested with the power to decide cases of monopolistic, restrictive and/or unfair trade practices according to law. Under Section 12 of the Monopolies and Restrictive Trade Practices Act, for the purposes of any enquiry thereunder, the Commission has been invested with, in respect of certain matters enumerated therein, the same powers as are invested in a civil court under the Code of Civil Procedure, 1908 (the "CPC" for brief), while trying a suit. In subsection (2) thereof, it is provided that any proceeding before this Commission shall be deemed to be a judicial proceeding. Under Sub-section (3) thereof the Commission has been clothed with powers to get produced documents in the custody or under the control of any person and he may be required to be examined. Thereunder the Commission may also require any person to furnish certain information with respect to certain trade practices for the purposes thereof.
6. Under Section 12A thereof the Commission has been empowered to grant temporary injunctions. It has been provided therein for applicability of the provisions of rules 2A and 5 (both inclusive) of Order XXXIX of the First Schedule to the Civil Procedure Code. The Commission has also been clothed with the power to award compensation under Section 12B of the Act. In Section 12C, thereof it has been provided that every order made by the Commission under Section 12A granting a temporary injunction or under Section 12B awarding compensation may be enforced by the Commission in the same manner as if it were a decree or order made by a court in a suit proceeding. Section 13B thereof empowers this Commission to impose punishment for its contempt. In Section 17 thereof it has been provided that the hearing of proceedings before the Commission shall be public. It thus becomes clear from the aforesaid provisions contained in the Monopolies and Restricitive Trade Practices Act that the proceedings before this Commission are as good as judicial proceedings and the Commission is as good as a court. In that view of the matter, this Commission can be said to be a court for the purposes of Article 141 of "the Constitution of India. Any and every ruling of the Supreme Court would, therefore, be binding on this Commission.
7. Assuming for the sake of argument that we are not right in our aforesaid conclusion, there is no room for doubt that this Commission will have to be treated as an authority for the purposes of Article 144 of the Constitution of India. A duty is enjoined upon this Commission as an authority to act in aid of the Supreme Court. It thus becomes clear that the ruling of the Supreme Court has to be held binding on this Commission as an authority in view of Article 144 of the Constitution of India if this Commission is not to be treated as a court for the purposes of Article 141 thereof.
8. That brings us to the question whether or not a ruling of a High Court is binding on this Commission and, if so, how far it is binding in the case of a conflict between two rulings of two different High Courts. At this stage it would be quite worthwhile to look at Article 226 of the Constitution of India. Thereunder, every High Court has been invested with powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of the rights conferred by Part III and for any other purpose. It has further been provided that these powers can be exercised with respect to the cause of action arising wholly or in part within the territories in relation to which it exercises jurisdiction irrespective of the fact that the seat of such Government or authority or the residence of such person is not within those territories.
9. The seat of this Commission is in Delhi. The jurisdiction of this Commission is throughout the whole of India. If the order of this Commission affects a party residing anywhere in India, such party can invoke the jurisdiction of the High Court exercising jurisdiction over that area with respect to the order of this Commission though the seat of this Commission is in Delhi. It is thus clear that this Commission is subject to the writ jurisdiction of every High Court in this country.
10. As pointed out hereinabove, this Commission is as good as a court and proceedings before it are as good as judicial proceedings. By virtue of Article 227 of the Constitution of India, every High Court is empowered to exercise its superintending jurisdiction over all courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. In that view of the matter, there is no escape from the conclusion that every High Court has power of superintendence over the orders of this Commission though this Commission may not be under any administrative control of any High Court.
11. Simply because a High Court might refuse to exercise its jurisdiction under Article 226 and/or 227 of the Constitution of India in view of the alternative remedy of appeal available under Section 55 of the Monopolies and Restrictive Trade Practices Act, it cannot be said that the High Court has no jurisdiction under Article 226 and/or 227 of the Constitution of India to examine the legality and validity of orders of this Commission.
12. In the Administrative Tribunals Act, 1985 (the "A.T." Act for brief), the jurisdiction of the High Court under Article 226 and/or 227 of the Constitution of India was sought to be excluded. In the Monopolies and Restrictive Trade Practices Act there is no such corresponding provision. The exclusion of jurisdiction of the High Court in the Administrative Tribunals Act was based on the relevant provisions contained in Articles 323A and 323B of the Constitution of India. In its ruling in the case of Chandra Kumar (L.) v. Union of India, AIR 1997 SC 1125, the Supreme Court has struck down the constitutional provision barring the jurisdiction of the High Court under Article 226 and/or 227 of the Constitution of India and consequently the provision for exclusion of the jurisdiction of the High Court under Article 226 and/or 227 of the Constitution of India in the Administrative Tribunals Act, 1985. If that be so, there is all the more reason to come to the conclusion that this Commission is amenable to the writ and/or the superintending jurisdiction of every High Court in this country under Articles 226 and/or 227 of the Constitution of India .
13. At this stage it would be proper to look at the binding ruling of the Supreme Court in the case of East India Commercial Co. Ltd. v. Collector of Customs, AIR 1962 SC 1893. It has been held therein (page 1895) "an administrative Tribunal cannot ignore the law declared by the highest court in the State. Taking into consideration the provisions of Articles 215, 226 and 227 of the Constitution of India, it would be anomalous to suggest that a Tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of the Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working: Otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer."
14. The aforesaid dictum of law pronounced by the Supreme Court in its aforesaid ruling is obviously binding on this Commission in view of what is pointed out hereinabove. It leaves no room for doubt that a ruling of a High Court is also binding on this Commission.
15. The question would, however, arise as to which ruling this Commission will follow in the case of a conflict between two rulings of two different High Courts. We think that the answer to this question may be given in the following manner :
(1) If the order of this Commission affects or is likely to affect a party in, say State A, and if there is a ruling of that High Court on the point involved in the matter, this Commission will be bound by that ruling of the said High Court.
(2) If the order of this Commission affects or is likely to affect a party in State A and there is no ruling of the High Court of that State on the point involved in the matter but there is a ruling of the High Court of State B on that point, this Commission will be bound by the ruling of the High Court of State B on that point.
(3) If the order of this Commission affects or is likely to affect a party in State A and there is a ruling of the High Court of State A on the point involved in the matter and that ruling of the High Court of State A is in conflict with the ruling of any other High Court whether of a single Bench, an equal Bench or a larger Bench, the ruling of the High Court of State A will be binding on this Commission.
(4) If the order of this Commission affects or is likely to affect a party in State A and there is no ruling of the High Court of State A on the point involved in the matter and there are conflicting rulings of two or. more different High Courts on that point, the Commission will be free to accept the ruling of either or any High Court for the purpose of deciding the case.
(5) If the order of the Commission affecting a party in State A is based on the ruling of the High Court in any other State on the point involved in the matter in the absence of any ruling on that point by the High Court of State A and subsequently the High Court of State A gives a ruling on that point which might be in conflict with the decision of the High Court which was earlier followed by the Commission, in a subsequent case of a party who might be affected in State A, the subsequent ruling of the High Court of State A will be binding on this Commission.
(6) If the order of this Commission is likely to affect two different parties in two different States A and B and the High Court of either State has decided the point involved therein, the decision of that High Court will be binding on this Commission. If the High Court of States A and B have decided the point separately and their rulings are in conflict with each other, the Commission will be free to follow the ruling of either High Court.
(7) If any ruling of a High Court is in conflict with any ruling of the Supreme Court, the ruling of the Supreme Court is always binding on this Commission.
(8) In the case of conflict of rulings of the same High Courts on a point of law which is involved in a case before this Commission, the one which is given by a larger Bench will be binding on this Commission. If the conflicting rulings of the same High Court are by co-ordinate Benches, ordinarily the ruling which is later in point of time will be binding on this Commission.
16. I think that we have given our decision on one of the questions arising for consideration before this Commission. We think that the main matter should now go back to the Division Bench for its decision according to law in the light of this Full Bench ruling on the binding effect of a ruling of a High Court.
17. This matter may be placed before an appropriate Bench on May 18, 1998 for directions.
18. Pronounced in open court on this the May 15, 1998.