w w w . L a w y e r S e r v i c e s . i n



M/s. Jindal Steel & Power Ltd. & Another v/s Competition Commission of India & Others


Company & Directors' Information:- JINDAL POWER LIMITED [Active] CIN = U04010CT1995PLC008985

Company & Directors' Information:- JINDAL STEEL AND POWER LIMITED [Active] CIN = L27105HR1979PLC009913

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- S. G. POWER AND STEEL PRIVATE LIMITED [Active] CIN = U14290DL2012PTC240718

Company & Directors' Information:- R. S. STEEL AND POWER PRIVATE LIMITED [Active] CIN = U70100CT2009PTC021362

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

    Appeal No. 45, 118 of 2012 with I.A. No. 210 of 2012

    Decided On, 03 April 2013

    At, Competition Appellate Tribunal

    By, THE HONOURABLE MR. JUSTICE V.S. SIRPURKAR (CHAIRMAN)
    By, THE HONOURABLE MR. RAHUL SARIN
    By, (MEMBER) & THE HONOURABLE MRS. PRAVIN TRIPATHI
    By, (MEMBER)

    For the Appearing Parties: Percival Billimoria with S. Thakur, Sidhartha Barua, A. Roy Chowdhary, Abhishek Raj, Varun Arora, Abishek Yadav with Mayank Bansal, Shabistan Aquil, Dy. Director (Law) of CCI, A. N. Haksar, Kalyan Banerjee, Sr. Advocates with G.R.Bhatia, Kanika Chaudhary Nayar, Nidhi Singh, Chitra, Dr. Ashwani Bhardwaj, Sunil Kr. Jain, Sachin Sharma, Sanjay Sehgal, Krishnan Venugopal, Senior Advocate with Durga Bose, Gaurav Ray, Arjun Krishnan, Shabistan Aquil, DD (Law) CCI, Advocates.



Judgment Text

V.S. Sirpurkar, Chairman.

1. This judgment will dispose of Appeal No. 45 of 2012 filed by Jindal Steel and Power Limited and Appeal No. 118 of 2012 filed by M/s. Prints India Limited. The common feature in these appeals is that their tenability is questioned before us by all the contesting respondents therein on the ground that there could be no appeal in cases where the Director General has found violation of the Competition Act, 2002 ('Act' for short) or any provision thereof like Section 3 or Section 4 of the Act, yet the Competition Commission of India (hereinafter referred to as the "Commission" or 'CCI' as the case may be) has chosen not to proceed on the ground that there did not appear to be any violation on the part of the parties against whom the information was filed. The objection raised is predominantly on the ground that the order exonerating the parties cannot be viewed as an order under Section 27 of the Act and as such there can be no appeal against any such order. The contesting respondents have raised a question that the only appeal under such circumstances could be against the order passed under Section 26(2) or Section 26(6) of the Act, as it is specifically made available under Section 53A(l)(a). It is also argued by the respondents that there can be an appeal only against the orders specified under Section 53A(l)(a) and (b) of the Act. The respondents argued that the orders in this case cannot be viewed as having been passed under Section 26(2) and 26(6), Section 27, Section 28, Section 31, Section 32, Section 33, Section 38, Section 39, Section 43, Section 43(a), Section 44, Section 45 or Section 46 of the Act. The respondents, for this proposition have relied on the judgment of the Hon'ble Supreme Court in the matter of Competition Commission of India vs. Steel Authority of India Ltd. and Anr. in Civil Appeal No. 7779 of 2010 reported in (2010) 10 SCC 744. In particular the respondents relied on the observations in paragraphs 62, 63, 64 and 65 of that judgment.

2. Since the aforementioned judgment was passed on the information provided by Jindal Steel & Power Ltd. (hereinafter called the appellant) we will take the facts in that case for consideration. We shall also advert to the other appeal wherever those facts are necessary. Before we advert to those facts, we must note that in Appeal No. 118 of 2012 by Prints India, the CCI had passed the order by majority as there was a dissent by the two Members namely Shri R. Prasad and Justice S.N. Dhingra who had held that there was a contravention on part of the respondents of the provisions of the Act and had recommended penalty. Thus, there is a common feature in these appeals that while the Director General found the contravention of the act in all the matters investigated by him, the CCI, however, by its majority order differed with the findings of the DG and chose to exonerate the parties completely. At the same time, in these appeals the Hon'ble Members in minority, however, termed the order passed under Section 27 of the Act and chose to inflict the penalties against whom the information was led by the informants. In that view, there would be no necessity for us to go into the facts of the individual cases but to consider that the judgment of the Hon'ble Supreme Court which was based on the order of this Tribunal which emanated from the order passed by the CCI on the basis of the information led by Jindal Steel & Power Ltd. We would refer to the facts in Appeal No. 45 of 2012 filed by Jindal Steel & Power Ltd. (hereinafter called the 'appellant' or 'JSPL' as the case may be).

3. The appellant has come up in this appeal challenging the order passed by the CCI by its majority order, exonerating the respondents herein Steel Authority of India and Indian Railways holding that they have not contravened Section 3 or Section 4 of the Act. The Commission in its conclusions has also come to the conclusion that there is no competition in the market of railway service and consequently competition for the market where Indian Railway is a purchaser gets distorted. It, therefore, observed that the Government of India, Ministry of Railway and Indian Railway should remain highly sensitive to this fact and try to keep their procurement procedure as competitive as possible wherever Indian Railway is the dominant purchaser, so that competition for that relevant market is not distorted unintentionally. It also made the recommendation in the context of the case that Ministry of Railway and Indian Railway should carry out a comprehensive review of the Memorandum of Understanding (MOU) in the light of the fact that today there are other producers that are also capable of and willing to supply rails to Indian Railways. Similarly an observation is made that they can examine whether RDSO specifications can be broadened to include other technologies which would result in greater efficiencies for the Indian Railway and would eventually lead to greater good of the Indian economy.

4. Shri R. Prasad, in his minority order, however, has held that by entering into Memorandum of Understanding, Indian Railways and SAIL foreclosed the market for any other entrant in the market of rails. The learned Member has, therefore, come to the conclusion that the said Memorandum of Understanding between SAIL and Indian Railways would be void in accordance with Section 3(2) of the Act w.e.f. 1.4.2012 and that it would be necessary for the Indian Railways to call tenders for supply of rails which would result in Indian Railways getting better price for its procurement of RDSO compliant rails. The learned Member has also held that any MOU / agreement for a period exceeding five years would be anti-competitive as it would result in foreclosure of the market and therefore Indian Railways and SAIL should cease and desist from enforcing the MOU after 1.4.2012. These were viewed by the learned Member as the directions issued under Section 27 of the Act.

5. In short, the Commission has exonerated the SAIL and Indian Railways by its majority order.

6. This appeal is objected to on its maintainability by the CCI as well as the SAIL. As mentioned in the earlier paragraphs, the other appeal is also objected to on its maintainability. Before we proceed to consider the issue of tenability, it would be better to see few necessary facts in the appeal of Jindal Steel and Power Limited.

7. Information was received by the CCI from Jindal Steel and Power Limited on 16.10.2009 under Section 19(1) of the Act. This information was filed against the SAIL. We need not go into the details of this information at this stage. Suffice it to say, that upon consideration of the information filed by JSPL, the Commission passed an order on 8.12.2009 under Section 26(1) of the Act holding that, prima facie, there existed a case for referring the matter to the office of the Director General for conducting an investigation into the matter. An appeal was preferred to this Tribunal under Section 53B of the Act whereby initially the Tribunal stayed the proceedings and remitted the case back to the Commission for a fresh hearing. In its order the Tribunal had come to the three conclusions:-

(a) The application of the Commission for impleadment was dismissed, as in the opinion of the Tribunal the Commission was neither a necessary nor a proper party in the appellate proceedings before the Tribunal, resultantly, the application for vacation of stay also came to be dismissed.

(b) It was held that giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review. Thus, the Commission was directed to give reasons while passing any order, direction or taking any decision.

(c) The appeal against the order dated 8th December, 2009 was held to be maintainable in terms of Section 53A of the Act. While setting aside the said order of the Commission and recording a finding that there was violation of principles of natural justice, the Tribunal granted further time to SAIL to file reply by 22nd February, 2010 in addition to the reply already filed by SAIL.

In pursuance of those directions, the CCI proceeded to re-consider the matter and passed another order dated 29.6.2010 reiterating its direction to refer the matter to the D.G. to conduct investigation into the matter. Accordingly, the D.G. went into the investigation and submitted his report on 11.1.2011. In his report, the Director 

General came to the conclusion that there was a contravention of Section 3 and Section 4 read with Section 3(1) of the Act on the part of the SAIL and Indian Railways. The Director General also reported that MOU between the Indian Railways on one hand and the SAIL on the other was in contravention of the provision of the Act.

8. The order by the Tribunal dated 15.02.2010 was, however, challenged by the CCI impleading therein SAIL and Ministry of Railways as well as the present appellant before the Apex Court.

9. The Hon'ble Supreme Court allowed the appeal filed by the CCI. In paragraph 65 of the judgment, it was held that "no appeal would lie from any decision, order or direction of the Commission which is not made specifically appealable under Section 53A(l)(a) of the Act and thus the appeal preferred by SAIL ought to have been dismissed by the Tribunal as not maintainable." The Hon'ble Supreme Court then proceeded to issue certain directions in paragraph 96 of the judgment.

10. In pursuance of those directions the CCI proceeded to consider the D.G.'s report dated 11.01.2011 and ultimately came to the conclusion which we have already indicated above exonerating the Indian railways and SAIL by its majority order. It is against this order the present appeal is directed, the tenability of which is objected to. Similarly the other appeal is also objected to on the identical grounds. 

11. The learned counsel appearing on behalf of the CCI as also on behalf of the respondents in these appeals have first taken us through the express language of Sections 53A and 53B of the Act. They pointed out that under the express language of Section 53B, the appeal can be filed only against the direction, decision or order referred to in clause (a) of Section 53A(1). Section 53A(l)(a) is 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 43 A, section 44, section 45 or section 46 of this Act;

12. The learned counsel, therefore, pointed out that appeals to this Tribunal which are governed by Section 53B make a reference to the above quoted clause (a) of Section 53A(1) of the Act and therefore, there would be no question of entertaining any appeal particularly in view of the observations made by the Hon'ble Supreme Court in the aforementioned judgment Competition Commission of India vs. Steel Authority of India Ltd. and anr. reported in (2010) 10 SCC 744. Our attention was then drawn to paragraph 56 and 57, which are as under :-

56. "Thus, the Court can safely apply rule of plain construction and legislative intent in light of the object sought to be achieved by the enactment. While interpreting the provisions of the Act, it is not necessary for the Court to implant, or to exclude the words, or over emphasize language of the provision where it is plain and simple. The provisions of the Act should be permitted to have their full operation rather than causing any impediment in their application by unnecessarily expanding the scope of the provisions by implication."

57. "We are unable to persuade ourselves to agree with the reasoning given and view taken by the Tribunal in this regard, in the impugned order. Even though the Tribunal referred to the dictum of the Court in the case of Tek Chand Bhatia (supra), it still concluded that the use of the words 'any' and 'or' were the expressions of wide magnitude and that 'any' being an adjective qualifies the nouns under the relevant provisions, i.e. directions, decisions and orders, all were appealable without exception."

Further our attention was drawn to paragraph 60 and 74, which are reproduced as under

60. "Expressum facit cessare taciturn - Express mention of one thing implies the exclusion of other. (Expression precludes implication). This doctrine has been applied by this Court in various cases to enunciate the principle that expression precludes implication. Union of India v. Tulsiram Patel AIR 1985 SC 1416. It is always safer to apply plain and primary rule of construction. The first and primary rule of construction is that intention of the legislature is to be found in the words used by the legislature itself. The true or legal meaning of an enactment is derived by construing the meaning of the word in the light of the discernible purpose or object which comprehends the mischief and its remedy to which an enactment is directed. [State of Himachal Pradesh v. Kailash Chand Mahajan AIR 1992 SC 1277 and Padma Sundara Rao v. State of T.N. AIR 2002 SC 1334]." 

74. " The notices are to be served in terms of Regulation 22 which specifies the mode of service of summons upon the concerned persons and the manner in which such service should be effected. The expression 'such other person', obviously, would include all persons, such as experts, as stated in Regulation 52 of the Regulations. There is no scope for the Court to arrive at the conclusion that such other person would exclude anybody including the informant or the affected parties, summoning of which or notice to whom, is considered to be appropriate by the Commission."

Lastly, the learned counsel invited our attention to paragraph 78 which is as under

78. "Cumulative reading of these provisions, in conjunction with the scheme of the Act and the object sought to be achieved, suggests that it will not be in consonance with the settled rules of interpretation that a statutory notice or an absolute right to claim notice and hearing can be read into the provisions of Section 26(1) of the Act. Discretion to invite, has been vested in the Commission, by virtue of the Regulations, which must be construed in their plain language and without giving it undue expansion."

Where the Hon'ble Supreme Court in the clearest of terms held and observed that no other direction, decision or order of the Commission is appealable except those expressly stated in Section 53A(l)(a) of the Act. The learned counsel also took us through paragraphs 62, 63 and 65. They pointed out that in paragraph 65 a specific observation is made as under

65. "For these reasons, we have no hesitation in holding that no appeal will lie from any decision, order or direction of the Commission which is not made specifically appealable under Section 53A(l)(a) of the Act. Thus, the appeal preferred by SAIL ought to have been dismissed by the Tribunal as not maintainable."

The learned counsel further asserted that the imperative language of the above paragraph, which is in negative terms, would clearly seal the fate of these appeals insofar as its tenability is concerned. In short, the learned counsel suggest that since the instant appeals do not arise out of the orders passed under any of the sections listed in Section 53A(l)(a) of the Act, the appellants in both these appeals would not have the locus standi to prefer the appeal.

13. As against this, the learned counsel appearing on behalf of the appellants, in these appeals, firstly submit that the aforementioned decision in SAIL is distinguishable. They also submit that the decision is not applicable to the facts of the present cases and, therefore, the extreme observations in the Supreme Court order more particularly in paragraph 65 should not be held as barring the present appeals. The learned counsel also contend that the Hon'ble Supreme Court in the aforementioned judgment restricted the right of appeal only to the final orders and in fact in all these appeals the CCI has passed final orders by ordering the closure of the enquiry and therefore by necessary logic the appeals should be held maintainable. Shri Billimoria and the other learned counsel pointed out further that if the extreme observations in paragraph 65 quoted above, are considered as binding then the appellants would be left with no remedy which could not be the import of the section. The learned counsel also urged that such situation has not been tackled in the Supreme Court judgment and therefore the judgment was distinguishable. The learned counsel further urged that we should give a purposive interpretation to Section 53A(1) and 53B so as to make available the remedy of the appeal to the parties like the appellants who had no remedy left after the CCI ordered the closure of the enquiry. The learned counsel also heavily relied on the minority judgments in the three appeals and urged that in fact minority judgments had been passed under the provisions of Section 27 wherein the penalties were also inflicted in terms of Section 27(b). They contended that the impugned majority judgment of the CCI was also liable to be held as having been passed under Section 27 of the Act.

14. During the debate we were also taken through the language of Section 26 and Section 27 besides Section 53A and Section 53B of the Act. Some learned counsel also referred to the Regulations passed under the Act and urged that it will not be feasible to dismiss these appeals on the ground of tenability.

15. During the debate, Shri Billimoria appearing for JSPL relied on (1975) 4 SCC 298 in the matter of Shri Mandir Sita Ramji vs. Lt. Governor of Delhi to suggest that where the words used in the statutory provision are vague and ambiguous or where the plain and normal meaning of its words or grammatical construction thereof would lead to confusion, absurdity, repugnancy with other provision, the Courts may, instead of adopting the plain and grammatical construction, use the interpretative tools to set right the situation, by adding or omitting or substituting the words in the Statute. In short, Shri Billimoria urged that the principle of casus omissus should be made applicable while interpreting Section 53A(l)(a) and 53B. Shri Billimoria also urged that sub-section (g) of Section 27 empowered the CCI to pass such other orders or issue such directions as it may deem fit and therefore the order passed by the CCI in this case should be treated to have been passed under Section 27(g) of the Act and the appeal against the same should be held maintainable. It was also urged that in the opening words of Section 27 the "comma" in between the phrases "is in contravention of Section 3 or Section 4 or as the case may be", should be read as "or" for the proper reading of the section.

16. Alternatively, it is argued that Section 53B should be read as providing an appeal against any direction or decision or orders. In short, the term 'or' should be interpreted as disjunctive and therefore it not only refers to the orders under clause (a) of Section 53A(1) but any direction or any decision passed by the CCI should be held appealable. The learned counsel Shri Billimoria also relied on the English legal tradition which authorizes a judge to correct blatant errors in a text of law. He also relied on Bennion to the effect that a judge may give a text "a rectifying construction" in the following five circumstances. They being :-

1. the garbled text (which is grammatically incomplete or otherwise corrupt);

2. the text containing an error of meaning;

3. the text containing a casus omissus;

4. the text containing a casus male inclusus; and

5. the case where there is textual conflict.

The learned counsel heavily relied on factor three stated above and says that it is clear casus omissus and therefore this Tribunal shall broadly interpret the provision.

17. Considering the rival submissions, it becomes clear that the verdict in these appeals would essentially depend upon the ratio of the aforementioned Supreme Court judgment in SAIL's case. If there is a direct and authoritative pronouncement of law by the Apex Court, there would be no question of looking hither and thither for arriving at the conclusion regarding the tenability of these appeals. In our considered opinion, the question of tenability is concluded by this judgment. We first take the stock of this judgment as it was haltingly argued that firstly this judgment does not apply to the facts involved in these appeals and secondly the judgment is distinguishable on facts as well as on law.

18. The factual back-drop of this judgment has been described in the opening paragraphs of the judgment. JSPL had invoked the provisions of Section 19 read with Section 26(1) of the Act by providing information to the Commission alleging that Steel Authority of India Ltd. CSAIL' for short) had entered into an exclusive supply agreement with Indian Railways for supply of rails and thus it had abused its dominant position in the market and deprived others of the fair competition and, therefore, had acted contrary to Section 3(4) and Section 4(1) of the Act. The Commission had directed the informant to file an affidavit with respect to the information furnished by it. The Commission also invited SAIL to submit its comments in respect of the information received by the Commission. The informant filed its affidavit in terms of the earlier order of the Commission. However, on that date SAIL requested for extension of six weeks' time to file its comments. This prayer was declined by the Commission and it went on to pass an order on 8th December, 2009 holding therein that prima facie case existed against SAIL and directed the Director General to make investigation into the matter in terms of Section 26(1) of the Act. It granted a liberty to SAIL to file its views and comments before the Director General during the course of investigation. Yet, SAIL filed an interim reply before the Commission along with an application that it may be heard before any interim order is passed by the Commission in the proceedings. By its subsequent order the Commission reiterated its earlier directions made to the Director General for investigation and granted liberty to SAIL to file its reply before the Director General. SAIL then challenged the order dated 8th December, 2009 before this Tribunal. The Commission also filed an application before this Tribunal seeking impleadment in the appeal filed by SAIL and also filed an application for vacation of interim orders which had been issued by the Tribunal staying further proceedings before the Director General which was commenced in furtherance of the directions of the Commission vide its order dated 8th December, 2009. This Tribunal vide its order dated 15th February, 2010 held as under:-

(a) The application of the Commission for impleadment was dismissed, as the Commission was not viewed either a necessary or a proper party in the appellate proceedings before the Tribunal.

(b) The Commission was directed to give reasons while passing any order, direction or taking any decision.

(c) The appeal against the order dated 8th December, 2009 was held to be maintainable in terms of Section 53A of the Act. While setting aside that order of the Commission it was held that order of the Commission was in violation of principles of natural justice.

This order of the Tribunal was challenged before the Hon'ble Supreme Court by the CCI. This is a broad factual background in the aforementioned Supreme Court case. The Hon'ble Supreme Court then took stock of Section 26 sub-section (1), (2), (3), (6) and (7) of the Act. The Hon'ble Supreme Court also noted that under Section 36(1), CCI is entitled to evolve its own procedure.

19. The basic contention of the Commission was that the directions passed in order dated 8th December, 2009 under Section 26(1) were not appealable and that there was no requirement in law to afford an opportunity of hearing to the parties at the stage of formulating an opinion as to the existence of a prima facie case. It also alleged that in the appeal before the Tribunal it was the necessary party. According to SAIL, however, the principles of natural justice were violated by the Commission while declining to grant extension of time to file its reply. In one paragraph the Hon'ble Supreme Court observed that the learned counsel appearing before the Court had addressed on certain allied issues which may not have strictly arisen from the memorandum of appeal but the questions raised were of public importance and were bound to arise before the Commission as well as before the Tribunal in all matters and in which the proceedings were initiated before the Commission. Basically, the Supreme Court formulated six points for determination. They were

(1) Whether the directions passed by the Commission in exercise of its powers under Section 26(1) of the Act forming a prima facie opinion would be appealable in terms of Section 53A(1) of the Act?

(2) What is the ambit and scope of power vested with the Commission under Section 26(1) of the Act and whether the parties, including the informant or the affected party, are entitled to notice or hearing, as a matter of right, at the preliminary stage of formulating an opinion as to the existence of the prima facie case?

(3) Whether the Commission would be a necessary, or at least a proper, party in the proceedings before the Tribunal in an appeal preferred by any party? 

(4) At what stage and in what manner the Commission can exercise powers vested in it under Section 33 of the Act to pass temporary restraint orders?

(5) Whether it is obligatory for the Commission to record reasons for formation of a prima facie opinion in terms of Section 26(1) of the Act?

(6) What directions, if any, need to be issued by the Court to ensure proper compliance in regard to procedural requirements while keeping in mind the scheme of the Act and the legislative intent? Also to ensure that the procedural intricacies do not hamper in achieving the object of the Act, i.e., free market and competition.

20. According to us it's only the first point amongst these six points which is relevant for our consideration. On the first question the Hon'ble Supreme Court categorically held as under

"(1) In terms of Section 53A(l)(a) of the Act appeal shall lie only against such directions, decisions or orders passed by the Commission before the Tribunal which have been specifically stated under the provisions of Section 53A(l)(a). The orders, which have not been specifically made appealable, cannot be treated appealable by implication. For example taking a prima facie view and issuing a direction to the Director General for investigation would not be an order appealable under Section 53A."

The Supreme Court thereafter while discussing its findings in relation to point No. 1 the answer of which was given at the beginning of the discussion itself took stock of Sections 19 and 26 as also Sections 53A and 53B of the Act. The Hon'ble Supreme Court then observed that order under Section 26(2) is a final order as it puts an end to the proceedings initiated upon receiving the information. Section 26(1) cannot be treated to be a final order and it is merely an administrative direction to one of its own wings. Hon'ble Supreme Court further held that it was like an appeal in the departmental proceedings which does not entail to the consequences. It then went on to hold that the language of Section 26 and Section 53A clearly depicted the legislative intent that the legislature never desired that all the orders, directions and decisions should be appealable to the Tribunal. It then rejected the argument that the expression "any direction issued" should be read disjunctive and that gives a complete right to a party to prefer an appeal under Section 53A, against any direction for investigation, as that itself is an appealable right independent of any decision or order which may be made or passed by the Commission. It held that a very limited right of appeal was provided by the legislature. It then went on to take the stock of Section 26(1) and (2) and has also made a specific observation that "thus, it specifically excludes the opinion/decision of the authority under Section 26(1) and even an order passed under Section 26(7) directing further inquiry, from being appealable before the Tribunal. Therefore, it would neither be permissible nor advisable to make these provisions appealable against the legislative mandate." Lastly after taking the stock of the case law on the subject it observed "Applying these principles to the provisions of Section 53A(l)(a), we are of the considered view that the appropriate interpretation of this provision would be that no other direction, decision or order of the Commission is appealable except those expressly stated in Section 53A(l)(a)". It again said "Section 53B(1) itself is an indicator to the restricted scope of appeals and that shall be maintainable before the Tribunal; it provides that the aggrieved party has a right of appeal against any direction, decision or order referred to in Section 53A(l)(a). If the legislature intended to enlarge the scope and make orders, other than those specified in Section 53A(l)(a) then the language of Section 53B(1) ought to have been quite distinctive from the one used by the legislature." Ultimately by way of an answer to question No. 1, the Supreme Court went on to hold "for these reasons, we have no hesitation in holding that no appeal will lie from any decision, order or direction of the Commission which is not made specifically appealable under Section 53A(l)(a) of the Act. Thus, the appeal preferred by SAIL ought to have been dismissed by the Tribunal as not maintainable."

21. In fact there could not be a clearer verdict of the Apex Court insofar as the present question is concerned. The negative language of the Apex Court in the above mentioned paragraphs, which we have quoted, makes it very clear that the only orders which are appealable are those mentioned in Section 53A(l)(a) of the Act. Admittedly, the present order cannot be viewed to be under Section 26(2) or Section 26(6) of the Act. Section 26(2) is only meant where the Commission does not find a prima facie case. Thus there is no question of any report by the Director General as the Commission does not find a prima facie case at all on the information supplied. 

While Section 26(6) pertains to a situation where the Commission had directed the Director General to enquire into the matter and the Director General gives a report that there is 'no contravention' of the provisions of the Act. Once such report is received, the Commission has to invite the objections and suggestions from the concerned parties and after the consideration of the objections and suggestions as referred to in sub-section (5) if the Commission agrees with the recommendation of the DG, it orders for closure of the matter. This situation is also not available in the present case as the Director General has sent a recommendation that there was a contravention of some of the provisions of this Act. All that the Commission was empowered to do under such situation was to proceed under Section 26(8) of the Act for inquiring into such contravention in accordance with the provisions of the Act. In the present case, it went on to inquire under that provision and came to the conclusion that there was no contravention. Again an order is passed under Section 26(8) of the Act which is specifically excluded in Section 53A(l)(a). With the law having been stated in the clearest possible terms by the Apex Court, we cannot persuade ourselves to hold that these appeals are maintainable in law.

22. It was tried to be argued that the factual situation was different as the Hon'ble Supreme Court was only enquiring into the order passed by the Commission under the provision of Section 26(1) of the Act and, therefore, the statement of law which we have quoted above should be limited only to the orders under Sec

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tion 26(1). In the wake of the clearest possible language that too in the negative tone, we cannot persuade ourselves to accept the contention. The Supreme Court in view of the importance of these provisions had specifically declared the law. Some learned counsel haltingly tried to argue that this is nothing but the obiter and not the ratio decidendi. We do not agree. In fact the Hon'ble Supreme Court has in the clearest possible terms declared the ratio decidendi. While considering the appealability of the order passed under Section 26(1) the Hon'ble Supreme Court has gone to interpret Section 53A(l)(a) and 53B. That interpretation was a must and the Apex Court has in unmistakable terms interpreted the same and has refused to give a broader scope to these two sections governing the appeal to this Tribunal. In our opinion, this cannot be wished away as obiter and for the sake of arguments even if it is held to be obiter, it is binding on us. 23. It was then argued that the Hon'ble Supreme Court justified its ratio on the ground that the orders named under Section 53A(l)(a) were of final nature and as such they were made appealable by the legislature. It was pointed out more particularly by Shri Billimoria that in these cases also the orders had reached the finality in the sense that the enquiry instituted on the information was actually ordered to be closed. That may be so. However, we cannot presume that the Apex Court was not aware of Section 26(8). The clearest possible law laid down cannot be ignored on such presumptuous argument that the Apex Court ignored Section 26(8) of the Act. 24. We are, therefore, of the clear opinion that the ratio in the aforementioned judgment of SAIL applied on all fours to the present situation and the argument that the judgment is not applicable to the present appeals is clearly incorrect and hence rejected. 25. Besides these contentions some other arguments were advanced before us were, that we must give the purposive interpretation to Section 53A(l)(a) making it possible to file appeals against all directions, decisions etc. by the CCI. We are afraid that question is already concluded finally by the Supreme Court and in our opinion, there would be no occasion for us to give any different interpretation then the one given by the Apex Court. 26. Shri Billimoria argued in terms of the doctrine of casus omissus. According to him, there was a need for supplying the casus omissus particularly in Section 53A(l)(a). We do not agree. It is a time tested law that the courts are reluctant to supply the words to the legal provisions. That can be done only in few exceptional circumstances like the legal provision being rendered absurd or being rendered meaningless in the absence of the words which is sought to be added. We do not think that there is such a situation in the present appeals. We have pointed out that the Apex Court has closed the issue on that count and we cannot therefore venture to supply some different interpretation or supply any word to the aforementioned provision. 27. It was tried to be argued by Shri Billimoria that he will be left with no remedy and therefore such strict interpretation should not be adhered to. If the legislature intended that no remedy should be available there would be no question of this Tribunal creating a remedy much less contrary to the interpretation given by the Apex Court. The argument is, therefore, rejected. In short, we are of the clear opinion that both the Appeals must be dismissed as not tenable. 28. We hold accordingly and dispose of both the Appeals.
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