A person, association or enterprise having sufficient interest in a competition law case can be allowed to participate in the proceedings before the Competition Commission of India (CCI) if such participation would aid the CCI and further public interest, the Delhi High Court has held [Ultratech Cement Vs CCI].
A Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia made the observation while dismissing an appeal by UltraTech Cement against the CCI’s decision to make the Builders’ Association of India (BAI) a party to the proceedings concerning alleged cartelisation by cement manufacturers.
The Court said the case initiated by the CCI was primarily intended to achieve public interest by checking anti-competitive practices and protecting consumers.
"If in a given case certain investigation/inquiry is conducted by the Commission against certain entities in respect of allegations of their indulgence in anti-competition practices, any party or person or entity or an enterprise having sufficient interest in the matter can be impleaded (made party) in the proceedings of the Commission, which in our opinion will be only to farther the public interest," Court held.
It added that impleadment does not determine the rights of either the party under investigation or the party being impleaded. Its purpose is to assist the CCI in reaching a proper conclusion on alleged violations of competition law.
The case arose from a suo motu investigation initiated by the CCI in 2019 after receiving complaints alleging cartelisation by grey cement manufacturers and abnormal increases in cement prices. BAI was among those that had complained to the regulator.
After the Director General completed the investigation and submitted its report in July 2022, BAI sought permission to participate in the proceedings.
In July 2023, the CCI allowed the request under Regulation 25 of the Competition Commission of India (General) Regulations, 2009. It found that BAI had substantial interest in the outcome and permitted it to inspect non-confidential records and file its opinion on the investigation report.
UltraTech challenged the decision. It argued that the order was unreasoned and had been passed without giving UltraTech an opportunity of hearing. He also contended that since BAI’s earlier application for impleadment had been rejected, allowing a fresh application amounted to an impermissible review.
The High Court rejected both arguments.
The Bench held that a party facing proceedings before the CCI cannot claim the position of dominus litis, or insist that it alone can determine who may participate in the proceedings.
Significantly, the Court also held that allowing a person to participate in CCI proceedings does not, by itself, determine any right or obligation of either the person under investigation or the person being impleaded.
Such participation merely assists the regulator in reaching an informed decision on whether competition law has been violated.
It also held that impleadment before the CCI cannot be treated as a conclusive determination of rights. Rather, it is a procedural measure enabling the regulator to obtain material and viewpoints necessary to decide whether there has been a violation of the Competition Act.
It held that the two applications by BAI had been made at materially different stages. The first was rejected while the Director General’s investigation was underway. The subsequent application was made after the investigation had concluded and the report had been submitted to the CCI.
Hence, allowing the later application did not amount to reviewing the earlier order.
The Court consequently dismissed UltraTech’s appeal .
UltraTech was represented by Senior Advocate Abhishek Manu Singhvi along with advocates Nisha Kaur Oberoi, Shambhavi Sinha, Sarthak Pande, Shivangi Chawla, Afreen Abbassi, Mehar Singh Dang, Sudhanshu Prakash Singh and Uday Bhatia from JSA Advocates & Solicitors.
The CCI was represented by Advocate Aakanksha Kaul.
BAI was represented by Senior Advocate Percival Billimoria along with advocates Anu Monga, Rahul Goel, Aditi Sharma, Palak Nigam, Rachita Sood and Anandi Katiyar.
[Read Judgment]