Delhi High Court: In a petition filed by Alliance of Digital India Foundation (petitioner) seeking direction from the Court that the Competition Commission of India (CCI) (respondent) can validly invoke the doctrine of necessity for initiating non-compliance proceedings against Google and issue an appropriate order/ direction to Respondent 1 for timely adjudication of the interim relief application and the application under Section 42 of the Competition Act, 2002 regarding non-effective compliance by Google of the CCI’s final order directing to keep UCB’s implementation in abeyance till the adjudication by the CCI. Tushar Rao Gedela, J., held that there is no impediment, legal or otherwise, in directing the CCI to take up the applications under Section 42 of the Act, as filed by the petitioner, for hearing and considering the same in accordance with law on or before 26-04-2023.
Various start-up companies have collectively challenged before the Competition Commission of India against Google seeking to restrain it from implementing its Payments Policy under Section 33 of the Act. The applications filed under Section 42 of the Act have been necessitated since the directions passed by the CCI vide the Final Order dated 25-10-2022 has been contravened in a veiled manner, wherein, the directions of the CCI to respondent 2 to 5 (collectively called Google) to not create and launch an alternate billing system to the already existing billing system i.e. Google Pay, so as to ensure that the consumers and digital app developers like the petitioners have alternate methods of payment system, is being violated.
The petitioner submitted that Google is about to launch the User Choice Billing System (“UCB System”), however, the said alternate bill-paying system is a sham and Google has not materially altered the original commission system, which was found to be discriminatory, keeping in view the finding that Google was in a dominant position in the arena of Android ecosystem. Thus, the proposed official launch of the UCB System will render the Final Order dated 25-10-2022 otiose.
Issue 1: Whether the CCI is validly constituted presently with two members to continue its adjudicatory roles and what will be the effect of Section 15 of the Act?
The Court noted that a plain reading of Section 15 of the Competition Act makes it clear that when an enactment uses the word “or”, it clearly indicates that the same ought to be read disjunctively, meaning thereby, that the saving clause of the section 15 would equally apply to adjudicatory/judicial powers of the CCI. Thus, the intention of the Legislature is to ensure that the adjudicatory functions of the CCI does not get impeded by defect arising out of vacancy or constitution arising out of vacancy.
The Court further noted that any adjudicatory process wherein there is a vacancy or any defect in the constitution of the Commission would not invalidate the proceedings of CCI. The aims and objects of a particular enactment ought to be interpreted in a manner to ensure that the object desired to be fulfilled by the legislature by such promulgation is taken to its logical conclusion. Thus, merely because of a defect or a vacancy in the constitution of the CCI, the CCI cannot be considered a statutory authority not having jurisdiction to adjudicate the complaints or other proceedings pending before it. Any interpretation, other than the aforesaid, would render the provisions of Section 15 otiose and which could not possibly be the intention of the Legislature either.
The Court held that the provisions of Section 15 act as a saving clause about a situation where a vacancy or a defect in the constitution of the CCI would arise and any such vacancy or defect in the constitution would not invalidate any proceedings so far as the adjudicatory powers of the CCI is concerned.
Issue 2: Can the principles of the doctrine of necessity apply at all in the present case?
Placing reliance on J. Mohapatra and Co. v. State of Orissa, (1984) 4 SCC 103, the Court opined that it is only when an adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent Tribunal can be constituted, that the doctrine of necessity may become applicable.
The present case involves an issue regarding the lack of a quorum due to the vacancy of a member constituting the quorum. Thus, it was only if the quorum or constitution comprising of three members was holding proceedings at present, with any of such members earning disqualification, that the doctrine of necessity could be invoked the doctrine of necessity would clearly not be invocable in a case where the CCI comprises of members less than three. Also, the doctrine of necessity is in respect of an institution and not a particular case.
The Court made it clear that CCI is constituted in accordance with the provisions of the Competition Act, 2002, and is very much functional and simultaneously carrying out adjudicatory functions. It further held that there is no impediment, legal or otherwise, in directing the CCI to take up the applications under Section 42 of the Act, as filed by the petitioner, for hearing and considering the same in accordance with the law on or before 26-04-2023.
[Alliance of Digital India Foundation v Competition Commission of India, 2023 SCC OnLine Del 2330, decided on 24-04-2023]
Advocates who appeared in this case:
Mr. Abir Roy, Mr. T Sundar Ramanathan, Mr. Vivek Pandey, Mr. Aman Shankar & Ms. Sukanya Viswanathan, Advocates for the Petitioner;
Mr. N. Venkataraman, ASG with Ms. Aakanksha Kaul and Ms. Versha Singh, Advocates for the R-1;
Mr. Sajan Poovayya, Sr. Advocate with Mr. Karan Singh Chandhiok, Ms. Avaantika Kakkar, Ms. Deeksha Manchanda, Mr. Kaustav Kundu, Ms. Ruchi Verma, Mr. Tarun Donadi, Ms. Bhavika Chabbra, Ms. Raksha Agarwal, Mr. Vijayendra Pratap Singh, Ms. Sayobani Basu & Mr. Abhisar Vidyarthi, Advocates for the R-2 to 5;
Mr. Jayant Mehta, Sr. Advocate with Ms. Sonam Mathur, Ms. Dinoo Muthappa, Mr. Abir Roy, Mr. Dhruv Dikshit, Mr. Vivek Pandey, Mr. Anchit Nayyar, Mr. Aman Shankar and Ms. Sukanya Viswanathan, Advocates for the R-6 [Match Group Inc.].
