COMMON ORDER 1. Since all these Writ Petitions involve one and the same issue, they are being disposed of in common. 2. Before going into the common question that arises for consideration in the above cases, the facts and circumstances leading to the filing of the Writ Petitions shall be discussed separately. 3. W.P. No. 26488 of 2013 is filed by one NISSAN Motors India Private Limited (hereinafter referred to as “Nissan Motors”). It is a fully owned subsidiary company of Nissan International Holdings, Netherlands, incorporated in the year 2005 in India; and it was only in 2010, it commenced commercial production of engines and vehicles from Oragadam Plant, Tamilnadu. It sold the first Indian manufactured car on July 23, 2010. It is a new entrant in the Indian car market. 4. One Mr. Shamsher Kataria (Informant), who is impleaded as the 3rd respondent in the above Writ Petition appeared to have filed information under Section 19 of the Competition Act, 2002 (hereinafter referred to as ‘the Act’) on January 17, 2011 and further supplemented on January 27, 2011 against only three car companies, viz., (1) Honda Siel Cars India Ltd. (2) Volkswagen India Ltd. And (3) Fiat India Automobiles Ltd., alleging anti-competitive methods/agreements and abuse of dominant position by the said three car manufacturers, which is an infraction of Sections 3 and 4 of the Act. After receiving the above said Information from the Informant, the Competition Commission of India (CCI), the 1st respondent herein, on the basis of the merits of the said complaint, passed an order under Section 26(1) of the Act in its meeting held on February 24, 2011 forming an opinion on the existence of prima facie case as detailed in the information as against the said three car manufacturers. A copy of the said order was communicated to the Director General, the 2nd respondent herein, vide letter dated March 8, 2011 along with a copy of the Information and in the said order passed by the 1st respondent, it was further directed that the 2nd respondent ought to submit its investigation report (DG Report) within a period of 60 days from the date of communication of the said order. Pursuant thereto, the 2nd respondent applied for extension on several occasions for submission of the Report. Pursuant thereto, the 2nd respondent applied for extension on several occasions for submission of the Report. Further, the 1st respondent ought to have, in considering the above said requests for extension, considered the sufficiency of the reasons for extension and permitted it by such period as it considered reasonable. When the Act read with the Regulations lay down that the Report ought to be submitted within a period of 60 days, the 1st respondent was not justified in granting nine extensions due to which the Report was submitted after a fifteen month delay. The 2nd respondent filed the undated report on July 31, 2012 or thereafter. On the DG Report, a conclusion is arrived that the petitioner had contravened the provisions of the Act. 5. According to the petitioner/Nissan Motors, the 2nd respondent is bound to submit his Report within a period of 60 days from the date of communication of the prima facie order and such period may not be ordinarily extendable. Further, the 1st respondent’s order, dated April 26, 2011 referring to the 2nd respondent’s note, dated April 19, 2011 requesting widening of the scope of investigation to include other manufacturers, is completely silent on the reasoning for including other car manufacturers. The said note of the 2nd respondent was not served upon the petitioner nor was it made a part of the record of the case. It is further contended by the petitioner that the 1st respondent in its order dated April 26,2011 has gone to the extent of observing in its order that the 2nd respondent’s investigation in any case need not be confined to the parties mentioned in the Information and that there was no need for the 2nd respondent to obtain orders of the 1st respondent on each individual case. Such widening of the powers of the 2nd respondent as observed by the 1st respondent above is not envisaged by the Legislature in the scheme of the Act. 6. The petitioner would specifically state that no case could ever be made out and/or any investigation undertaken against their Company as it, unlike the other named manufacturers started manufacturing its cars in India in 2010 and sold the first indigenously manufactured car on July 23, 2010, which is just six months prior to the filing of the Information in this Writ Petition. The 1st respondent, without independent application of mind and without any additional material, granted permission to the 2nd respondent to investigate all other unnamed car manufacturers as per its order dated April 26, 2011 based on the suggestion by the latter, vide his note dated April 19, 2011. 7. It is further submitted by the petitioner that on January 10, 2013, the 1st respondent considered in the impugned proceedings, an application on behalf of Carnation Auto India Private Limited (in short ‘Carnation’), which is India’s largest multi-brand auto solutions provider, for impleadment in the impugned proceedings before the 1st respondent which was allowed without giving the petitioner any opportunity to oppose or present arguments in relation to the same. The petitioner was not given notice of the said application filed by Carnation, but only a copy of the same was served on the petitioner. Further, it was learnt by the petitioner, upon perusal of the order dated January 10, 2013, that the 1st respondent had considered the above application of Carnation which was not disclosed to the petitioner or any other car manufacturers. Thus, the 1st respondent on the date of hearing where all the car manufacturers including the petitioner were present, considered the above application without giving notice of or disclosing the same and hence, the petitioner was not even aware that such an application existed and that the same was considered by the 1st respondent at the time of hearing on January 10, 2013. The above conduct of the 1st respondent has caused grave prejudice to the petitioner, since the 1st respondent clearly holds that the submissions of Carnation would be considered by it. 8. Contrary to the directions of the 1st respondent, Carnation along with the Informant jointly filed common written arguments and responses on March 21, 2013 to the queries raised by the 1st respondent. The 1st respondent considered the objections of the petitioner with respect to joint filing of written arguments and response by the Informant and Carnation and noted that Carnation had not been given the liberty to file objections to the DG Report and if any response had been filed by it, the same shall not form a part of the record vide order dated April 16, 2013. 9. 9. The petitioner filed an application under Section 36(1) of the Act on July 10, 2013 before the 1st respondent seeking inter alia, an opportunity for oral hearing. The 1st respondent heard the arguments on behalf of the Informant and Carnation on March 5, 2013. The petitioner presented its arguments on an earlier date, i.e. February 4, 2013. Therefore, the 1st respondent vide its order dated March 5, 2013 fixed the matter on April 25, 2013 at 10.30 a.m. for oral hearing. Carnation and the Informant vide their joint written arguments/submissions dated March 21, 2013 had made certain submissions which had not been agitated earlier and would have caused grave prejudice to the petitioner. The petitioner objected to the same vide its application dated April 3, 2013 and also in its written submissions dated April 19, 2013. However, a separate oral hearing in respect of the same was not sought since the matter was ostensibly fixed for oral hearing in terms of the order of the 1st respondent dated March 5, 2013. 10. Though the petitioner was prepared for oral hearing on April 25, 2013 and had briefed the Senior Counsel also, two days before the said hearing, the 1st respondent vide e-mail dated April 23, 2013, informed the petitioner that the hearing scheduled on April 25, 2013 had been postponed to May 9, 2013. Subsequently, the 1st respondent vide its order dated April 23, 2013 informed the petitioner that the hearing is postponed to 09.05.2013. On the said date of hearing, the 1st respondent made it clear to the parties that no oral hearing was to take place in the matter. Instead of passing an order on the adjournment application filed by the petitioner and some other car manufacturers, the 1st respondent refused to hear even those parties who were present at the time of hearing. The 1st respondent in the said order dated May 9, 2013, inter alia observed as under: “4. It was made clear to the parties that the oral arguments/submissions by the parties have been concluded and no further oral hearing shall be made. However, in case the Commission have any query, the party/parties concerned may be directed to answer the queries of the Commission in writing within the time granted to it.” 11. It was made clear to the parties that the oral arguments/submissions by the parties have been concluded and no further oral hearing shall be made. However, in case the Commission have any query, the party/parties concerned may be directed to answer the queries of the Commission in writing within the time granted to it.” 11. The CCI, vide order dated May 28, 2013 of its own directed the opposite parties including the petitioner except Premier Ltd. and Hyundai Motors to file the additional information as mentioned in the said order by June 30, 2013. The petitioner filed the requisite additional information on June 27, 2013 and requested that an opportunity for oral hearing may be granted to explain the same. However, the petitioner was not granted an oral hearing. Initially, the Informant did not wish to file reply/objections to the Report of the Director General in the matter as informed by the counsel for the Informant vide its letter dated October 09, 2012 and therefore, the petitioner was not even aware of the stand of the Informant when the matter was argued by the petitioner on February 4, 2013 before the 1st respondent. In this regard, the petitioner would contend that written arguments are no substitute for oral hearing, as oral hearing enables the relevant authority to clear its doubts, if any, during the course of arguments and justice should not only be done but should manifestly and undoubtedly be seen to be done. Challenging the impugned proceedings dated 26.04.2011 of the 1st respondent, the petitioner/Nissan Motors is before this Court with the said Writ Petition. 12. Hyundai Motor India Limited (HMIL), (hereinafter referred to as ‘Hyundai Motor’) has filed two Writ Petitions one in W.P. No. 31808 of 2012 seeking to restrain the 1st respondent/CCI from continuing the impugned proceedings in Case No. 03/2011 in File No. 1(3)/2011-Sectt, dated 26.04.2011 as against the petitioner and to quash the same as it is without jurisdiction, without authority of law, illegal, unconstitutional and in violation of the principles of natural justice and the other in W.P. No. 31809 of 2012 challenging the impugned notice of the 3rd respondent/Additional Director General, CCI, dated 04.05.2011. 13. The petitioner, Hyundai Motor, presently the second largest passenger car manufacturer in India has an installed capacity of 6,30,000 cars per annum and an annual turnover of approximately Rs. 22,500 Crores. 13. The petitioner, Hyundai Motor, presently the second largest passenger car manufacturer in India has an installed capacity of 6,30,000 cars per annum and an annual turnover of approximately Rs. 22,500 Crores. Its automotive investment in the State of Tamil Nadu is approximately Rs. 9000 Crores. It has been one of the largest Central Excise Duty contributors for a period of eight years from 1998 onwards and also one of the highest tax payers of income tax in the Indian automobile sector. 14. In the year 1998, the petitioner started the manufacture of popular brand car named Santro with the new multi injunctioon fuel system as against the old carburetor technology existing in Indian market and was considered to be the most fuel economy car. The successful launch of Santro was followed with Santro Zip, Accent, Verna and Elantra models with gradual development in quality control measures. All these passenger cars were well received in India and the petitioner had huge service network with 90% of the parts being indigenously manufactured and procurable both at consumer/retail level as well as the manufacturer level anywhere in India. Hyundai Motor has approximately 652 authorized dealers/Workshops and around 205 authorized service centres spread over India. The Authorized Dealers are selling the Cars manufactured by Hyundai Motors, providing free and paid car service to the customers and further selling genuine spare parts to the customers. 15. The 3rd respondent, i.e. the Additional Director General caused a notice vide F. No. DG/CCI/IW/1/74/2011 dated 04.05.2011, under Section 36(2) read with Section 41(2) of the Act, to Mr. H.W. Park, Managing Director of Hyundai Motor by fax from the office of the Competition Commission of India. The head note of the notice mentions that “an investigation being conducted by this office into certain anti-competitive practices alleged to be prevalent in the sale, maintenance, service and repair market of the cars manufactured in India.” In the penultimate paragraph, it has been directed by the 3rd respondent that in case, information is not submitted by the due date, the petitioner may be liable for penal provisions udner Section 43 of the Act. In the last paragraph of the said notice, it has been directed that in case the information furnished is found to be false or suppressed in any manner, the petitioner may also be liable for penal provisions under Section 45 of the Act. 16. In the last paragraph of the said notice, it has been directed that in case the information furnished is found to be false or suppressed in any manner, the petitioner may also be liable for penal provisions under Section 45 of the Act. 16. According to Hyundai Motor, nowhere in the notice, it has been mentioned as to how the 3rd respondent got jurisdiction to cause an investigation in accordance with the provisions of the Act. Thus, the notice is a product of non-application of mind, illegal and in excess of jurisdiction. What cannot be done directly by the 3rd respondent is sought to be done indirectly by the 3rd respondent by usurping the powers not conferred upon him under the provisions of the Act. Further, no material documents were enclosed along with the notice and the satisfaction arrived at by the competent authority to issue notice under the Act was nowhere reflected in the notice. In view of the threat of penal consequences emanating in the notice, the petitioner filed a response to the notice without prejudice to its rights and contentions. 17. Thereafter, Hyundai Motor filed a request letter dated 09.07.2012 with the prescribed fee of Rs. 1000/- to the 1st respondent under Regulation 50(1) of Competition Commission of India (General) Regulations, 2009, (in short ‘‘Regulations”) to grant permission to inspect the records, various submissions and related documents to them. On 14.09.2012, the 3rd respondent sent a softcopy in Compact Disc to the petitioner through courier. Except the communications between the petitioner and the respondents and the documents filed by the petitioner, other supporting documents have not been made available to the petitioner prior to issuance of Investigation Report. 18. Hyundai Motor came to know that one Mr. Shamsher Kataria appeared to have filed complaints dated 17.01.2011 and 27.01.2011 under Section 19 of the Act against (1) Honda Siel Cars India Ltd. (2) Volkswagen India Ltd. And (3) Fiat India Automobiles Ltd., alleging anti-corruptive methods, agreements and abuse of dominant position by the said three car manufacturers, which is an irregularity under Sections 3 and 4 of the Act. After receiving the complaints dated 17.01.2011 and 27.01.2011 from the said complainant, the 1st respondent on the basis of the merits of the said complaint passed an order under Section 26(1) of the Act in the meeting held on 24.02.2011 forming an opinion on the existence of prima facie case in the complaint as against the said three car manufacturers. The initiation of proceedings under Section 26 in respect of complaints dated 17.01.2011 and 27.01.2011 does not conform to Regulation 16(3). 19. The documents forming part of the softcopy provided in Compact Disc by the 3rd respondent further established that the said order dated 24.02.2011 u/s 26(1) of the Act passed by the 1st respondent as to the existence of the prima facie case as against the said three car manufacturers was communicated to the 3rd respondent vide letter dated 08.03.2011 along with a copy of the complaint received from the informant, Mr. Shamsher Kataria and in the said order passed by the 1st respondent, it was further directed that the 3rd respondent has to submit the Report within a period of 60 days from the date of communication of the said order. However, no report was submitted by the 3rd respondent within the said stipulated period of 60 days as mandated by Regulation 18(1) of the Regulations. Thus, the law laid down by the Supreme Court in the case of Competition Commission of India v. Steel Authority of India (2010) 10 SCC 744 : LNIND 2010 SC 850 : (2011) 2 MLJ 271 has not been duly complied with by the 1st, 2nd and 3rd respondents. 20. From the soft copy of the documents provided by the 3rd respondent, it is clear that the 1st respondent, in the impugned proceedings dated 26.04.2011, without independant application of mind and without any additional material, on the basis of the complaints dated 17.01.2011 and 27.01.2011 of the Informant without the prima facie satisfaction, granted permission to the 2nd and 3rd respondents to investigate against all other unamed car manufacturers, as suggested by the 3rd respondent vide his Note on 19.04.2011 to the 1st respondent, in which the Director General had requested for a direction to initiate investigation against other car manufacturers. It is the mandatory requirement of the 1st respondent under the Competition Act, 2002 to independently form and record a prima facie view to order investigation under the provisions of Chapter VI of the Act. 21. It is the case of Hyundai Motor that the 1st respondent failed to form mandatory prima facie opinion on the existence of the alleged case as against them and all other car manufacturers. On the basis of the allged complaint by the informant and the presumptive note suggested by the 3rd respondent, the 1st respondent blindly accorded its permission to the 3rd respondent conferring him jurisdiction on the alleged issue, in which the 3rd respondent has already come to an opinion to conduct the investigation against all other car manufacturers. From the provisions of the Act, it is clear that the 3rd respondent had no authority/rights under the Act to recommend investigation against all other car manufacturers nor the said unilateral presumption of the 3rd respondent need to be enforced by due process of law under Section 26(1) of the Act. 22. It is the further submission of Hyundai Motor that the time limit of 60 days to file the Report by the 3rd respondent as directed by the 1st respondent in proceedings dated 24.02.2011 was not adhered to and hence, the power to investigate and file the report even on the basis of the original complaint received from the informant has lapsed. Further, the proceedings dated 26.04.2011 passed by the 1st respondent directing investigation by the 3rd respondent and to file a Report does nowhere contemplate extension of time limit beyond 60 days from 08.03.2011. Thus, the proceedings to file report passed by order dated 26.04.2011 in respect of all other car manufacturers does not confirm to Regulation 18. Hence, the challenge to the same by Hyundai Motor. 23. Respondents have filed a counter affidavit, stating as under: 23.1. The Commission is a statutory body, established under the Competition Act,2002, “in short, the Act” with a legislative mandate inter alia to prevent the practices having adverse effect on competition, to promote and sustain competition in the markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in the markets in India. To perform the said functions, under the scheme of the Act, the Commission is vested with inquisitorial, investigative, regulatory, adjudicatory and advisory jurisdictions. To perform the said functions, under the scheme of the Act, the Commission is vested with inquisitorial, investigative, regulatory, adjudicatory and advisory jurisdictions. The Commission is entitled to evolve its own procedure under Section 36 (1) of the Act for conducting inquiry. The Act, a socio-economic legislation, prohibits anti-competitive agreements which have appreciable adverse effect on competition in India and abuse of dominant position and such anti-competitive agreements or abuse of dominant position are to be inquired into by the Commission on receipt of information or suo-motu. The said inquiry is set into motion in accordance with the provisions of Section 19 of the Act, which is to be conducted by the Commission as per the procedure provided under Section 26 of the Act. Under Section 26 (1) of the Act, the Commission has to form only a prima facie opinion as to the existence of contraventions of certain provisions of the Act and pass a direction to the Director General, the investigative wing of the Commission, to cause an investigation to be made into the matter and submit its report. The direction under Section 26 (1) is an administrative direction to the Director General for investigation of contravention of provisions of the Act, without entering upon any adjudicatory or determinative process. It does not effectively determine or affect rights or obligation of the parties. In case of informations, though the name of alleged violators is given, if during investigation more violations are found, DG has power to investigate their role as well. 23.2. In the present case (Case No. 03/2011 before the Commission), an information was filed under Section 19 of the Act on 18.01.2011 by one Mr. Shamsher Kataria (informant) against Honda Siel Cars India Ltd., Volkswagen India Pvt.Ltd. and Fiat India Automobiles Ltd. All the respondents in the information were companies involved in manufacture, sale, distribution and servicing motor vehicles manufactured by them, and the informant alleged certain conduct of the vehicle manufacturing companies to be in violation of the provisions of the Act. 23.3. Shamsher Kataria (informant) against Honda Siel Cars India Ltd., Volkswagen India Pvt.Ltd. and Fiat India Automobiles Ltd. All the respondents in the information were companies involved in manufacture, sale, distribution and servicing motor vehicles manufactured by them, and the informant alleged certain conduct of the vehicle manufacturing companies to be in violation of the provisions of the Act. 23.3. The relief claimed by the informant before the Commission was to hold an enquiry into the trade practices of the respondents and/or any other vehicle manufacturer and their authorised dealers/service centres indulging in similar activities as detailed in the petition and give a finding that such parties have committed restrictive and/or unfair trade practices in contravention of the Act; to pass appropriate orders directing the respondents 1 to 3 and other contravening vehicle manufacturers and their authorised dealers/service centres to provide spare parts, technical information, diagnostic tools, software and any other information and goods required for the repair, maintenance and servicing of the vehicles to independent repair workshops and also make the same freely available in the open Indian automotive market and also to pass appropriate orders directing the respondents and other contravening vehicle manufacturers to provide the relevant spare parts, diagnostic tools, technological information, technical training and equipment for repair. 23.4. The informant filed supplementary information on 27.01.2011, alleging certain restrictive practices by the respondents in the information and other vehicle manufacturers and alleging them to be in violation of the provisions of the Act. 23.5. The Commission, on consideration of the facts of the case and averments made in the information, expressed its prima facie opinion under Section 26 (1) of the Act and gave directions, dated 24.02.2011, to the DG to investigate into the matter. The direction of the Commission was with respect to alleged anti-competitive conduct by the said industries in general and not specifically qua the respondents named in the information, which is apparent from the order of the Commission, dated 26.04.2011, under challenge in the writ petitions. Therefore, the DG had requested for directions from the Commission for clarifying the scope of investigation so as to make investigation against other car manufacturers. DG made no discrimination among different car manufacturers. 23.6. The Commission, which performs regulatory functions, had issued directions in the present case to investigate contravention of provisions of the Act, in view of prevalent conduct of the players in the Indian automobile industry. DG made no discrimination among different car manufacturers. 23.6. The Commission, which performs regulatory functions, had issued directions in the present case to investigate contravention of provisions of the Act, in view of prevalent conduct of the players in the Indian automobile industry. While asking the DG to investigate against those car manufacturers who were not specifically named in the information, the Commission treated all car manufacturerss equally and told the DG that it was free to investigate the matter against not only the named car manufacturers but against other car manufacturers. 23.7. As per the scheme of the Act, DG cannot initiate investigation on its own, but, simply helps the Commission in inquiry after reference of a matter to it under Section 26 (1) of the Act. The issue regarding enlargement of scope of investigation was simply reported by DG to the Commission and, thereafter, exercising its power under Section 26 (1) , the Commission allowed the same so as to achieve the objectives of the Act mentioned in the preamble and is discharging its functions under Section 18. The Commission and the DG have not committed any illegality by seeking concurrence of DG for enlarlgement of scope of investigation and allowing the same by the Commission, as mandated under the Act, for achieving its objectives. 23.8. The petitioners did not raise any objection either before the Commission or the DG against the proceedings in Case No. 03/2011, which is under challenge in these writ petitions. The DG investigated the matter not only against the petitioner but also against all other car manufacturers, even though their names were not reflected specifically in the information. The DG, on completion of investigation, submitted its investigation report along with 17 sub-reports in the matter, vide its office memorandum, dated 27.08.2012, and the Commission, vide its order, dated 04.09.2012, decided, inter alia, to send a soft copy of the same to the petitioners and all other car manufacturing companies, giving them opportunity to file their reply/objections to the said report. The Commission also directed the car manufacturing companies to appear before it to make oral submissions/representation, on the notified dates. It was only after the findings and recommendations of the DG, the petitioners have filed these writ petitions, which are totally misconceived. 24. The first and foremost contention of Mr. P.S. Raman, learned Senior Counsel appearing for Mr. The Commission also directed the car manufacturing companies to appear before it to make oral submissions/representation, on the notified dates. It was only after the findings and recommendations of the DG, the petitioners have filed these writ petitions, which are totally misconceived. 24. The first and foremost contention of Mr. P.S. Raman, learned Senior Counsel appearing for Mr. Anirudh Krishnan, learned counsel appearing for the petitioner, i.e. Nissan Motors in W.P. No. 26488 of 2012 is that Nissan Motors, having started commercial sale of cars in India in July 2010, which was just 6 months before the filing of the Information by the Informant and having a negligible share of 0.52% in 2010-11 in passenger car segment in India, cannot be said to be enjoying dominant position. Secondly, he would contend that the 1st respondent has not provided adequate opportunities of oral hearing to Nissan Motors during the adjudicatory proceedings in Case No. 03/2011, which is in violation of the principles of natural justice. It is his further contention that there was no continuity in the Quorum of the 1st respondent, who heard the arguments of the petitioner on February 4, 2013 in the adjudicatory proceedings in Case No. 03/2011. He would rely upon the following decisions: (i) Surendra Singh and Others v. State of Uttar Pradesh, AIR 1954 SC 194 : LNIND 1953 SC 99 : (1954) 1 MLJ 50: “10. In our opinion, a judgment within the meaning of these sections is the final decision of the court intimated to the parties and to the world at large by formal “pronouncement” or “delivery” in open court. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there: that can neither be bluffed nor left to inference and conjecture nor can it be vague. All the rest the manner in which it is to be recorded, the way in which it is to be aut.henticated the signing and the sealing, all the rules designed to secure certainty about its content and matter can be cured; but not the hard core, namely the formal intimation of the decision and its contents formally declared in a judicial way in open court. The exact way in which this is clone does not matter. The exact way in which this is clone does not matter. In some courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection. 11. An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open court. But, however, it is done it must be an expression of the mind of the court at the time of delivery. We say this because that is the first judicial act touching the judgment which the court performs after the hearing. Everything else up till then is done out of court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court. That is what constitutes the “judgment”. 12. Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of locus paniteniea, and indeed last minute alterations sometimes do occur. Therefore, however, much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the court. Only then does it crystallise into a full fledged judgment and become operative. It follows that the Judge who “delivers” the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. It follows that the Judge who “delivers” the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but takes no steps to arrest delivery. But one cannot assume that he would not have changed his mind if he is no longer in a position to do so. A Judge’s responsibility is heavy and when a man’s life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture; also, a question of public. policy is involved. As we have indicated, it is frequently the practice to send a draft, sometimes a signed draft, to a brother Judge who also heard the case. This may be merely for his information, or for consideration and criticism. The mere signing of the draft does not necessarily indicate a closed mind. We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a Judge was indended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light dawn upon him before the delivery of judgment. 13. Views similar to this were expressed by a Full Bench of the Calcutta High Court consisting of nine Judges in the year 1867 in Mahomed Akil v. Asadunnissa Bibee. In that case, three of the seven Judges who constituted the Bench handed in signed judgments to the Registrar of the court. Before the judgment could be delivered, two of them retired and one died. In that case, three of the seven Judges who constituted the Bench handed in signed judgments to the Registrar of the court. Before the judgment could be delivered, two of them retired and one died. A Full Bench of nine Judges was convened to consider whether the drafts of those three Judges could be accepted as judgments of the court. Seton-Kerr J., who had heard the case along with them, said-- “Certainly as far as I can recollect, they appeared to have fully made up their minds on a subject which they had very seriously considered, and on which they had abundant opportunities of forming a final determination. I am, however. not prepared to say that they might not on further consideration have changed their opinions...” Despite this, all nine Judges were unanimous in holding that those three opinions could not be regarded as judgments in the formal sense of the term. In our opinion, Jackson J. expressed the law aright in these words: “I have however always understood that it was necessary in strict practice that judgments should be delivered and pronounced in open court. Clearly, we are met today for the first and only time to give judgment in these appeals; and it appears to me, beyond question, that Judges who have died or have retired from the court cannot join in the (1) 9 W.R.I. (F.B.) judgment which is to be delivered today, and express their dissent from it.” (p. 5). Peacock C.J. pointed out at page 30: “The mere arguments and expressions of opinion of individual Judges, who compose a court, are not judgments. A judgment in the eye of the law is the final decision of the whole court. It is not because there are nine Judges that there are nine judgments. When each of the several Judges of whom a simple court is composed separately expresses his opinion when they are all assembled, there is still but one judgment, which is the foundation for one decree. It is not because there are nine Judges that there are nine judgments. When each of the several Judges of whom a simple court is composed separately expresses his opinion when they are all assembled, there is still but one judgment, which is the foundation for one decree. If it were otherwise, and if each of the memoranda sent in on the present occasion were a judgment, there would be nine judgments in one case, some deciding one thing and some another, and each Judge would have to review his own judgment separately, if a review should be applied for.” We do not agree with everything which fell from the learned Chief Justice and the other Judges in that case but, in our opinion, the passages given above embody the true rule and succinctly explain the reasons for it. 14. As soon as the judgment is delivered, that becomes the operative pronouncement of the court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication. 15. After the judgment has been delivered provision is made for review. One provision is that it can be freely altered or amended or even changed completely without further formality, except notice to the parties and a rehearing on the point of change should that be necessary, provided it has not been signed. Another is that after signature L/B(D)2SCI-8 a review properly so called would lie in civil cases but none in criminal; but the review, when it lies, is only permitted on very narrow grounds. But in this case the mere fact that a Judge is dead and so cannot review his judgment does not affect the validity of the judgment which has already been delivered and has become effective. For this reason there is a distinction between judgments which have not been delivered and so have not become operative and those which have. But in this case the mere fact that a Judge is dead and so cannot review his judgment does not affect the validity of the judgment which has already been delivered and has become effective. For this reason there is a distinction between judgments which have not been delivered and so have not become operative and those which have. In the former case, the alteration is out of court. It is not a judicial act. It is only part of a process of reaching a final conclusion; also there is no formal public declaration of the Judges’ mind in open court and consequently there is no “judgment’ which can be acted upon. But after delivery the alteration cannot be made without notice to the parties and the proceeding must take place in open court, and if there is no alteration there is something which is final and conclusive and which can at once be acted upon. The difference is this. In the one case, one cannot know, and it would be against public policy to enquire, whether the draft of a judgment is the final conclusion of the Judge or is only a tentative opinion subject to alteration and change. In the second case, the Judge has publicly declared his mind and cannot therefore change it without notice to the parties and without hearing them afresh when that is necessary; and if there is no change the judgment continues in force. By change we mean an alteration of the decision and not merely the addition or subtraction of part of the reasoning. 16. Our conclusion is that the judgment which Kidwa,i J. purported to deliver on 5th January, 1953, was not a valid judgment because the other member of the Bench died before it could be delivered. 17. The appeal is allowed and the order of the High Court which purports to be its judgment is set aside. As it is no longer possible for the Bench which heard the appeal and the confirmation proceedings to deliver a valid judgment. We send the case back to the High Court for re-hearing and delivery of a proper judgment.” (ii) Gullapalli Nageswara Rao and Others v. Andhra Pradesh State Road Transport Corporation and Another, AIR 1958 SC 308 : LNIND 1958 SC 139 : (1959) 2 MLJ 156: “31. We send the case back to the High Court for re-hearing and delivery of a proper judgment.” (ii) Gullapalli Nageswara Rao and Others v. Andhra Pradesh State Road Transport Corporation and Another, AIR 1958 SC 308 : LNIND 1958 SC 139 : (1959) 2 MLJ 156: “31. The second objection is that while the Act and the’ Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of the arguments, and the party- appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.” (iii) Travancore Rayon Ltd. v. Union of India (1969) 3 SCC 868 : LNIND 1969 SC 439: “7. The question raised before the Collector of Customs was of a complicated nature and for its proper appreciation required familiarity with the chemical composition and physical properties of nitro-cellulose lacquer and of the substance produced by the appellant Company. The Collector in deciding the appeal wrote an order running into 18 typed pages. There were before the Collector conflicting opinions of the Chemical Examiner and the Silk Mills Research Association, Bombay. The Collector gave two personal hearings to the appellant Company. No personal hearing was given by the Government of India to the appellant Company even though the matter raised complex questions. It is true that the rules do not require that personal hearing shall be given, but if in appropriate cases where complex and difficult questions requiring familiarity with technical problems are raised, personal hearing is given, it would conduce to better administration and more satisfactory disposal of the grievances of citizens. It is true that the rules do not require that personal hearing shall be given, but if in appropriate cases where complex and difficult questions requiring familiarity with technical problems are raised, personal hearing is given, it would conduce to better administration and more satisfactory disposal of the grievances of citizens. The order does not disclose the name or designation of the authority of the Government of India who considered “the points made by the applicants”, and it is impossible to say whether the officer was amiliar with the subject-matter so that he could decide the dispute without elucidation a.-id merely on a perusal of the papers. The form in which the order was communicated is apparently a printed form. There is a bare assertion by the Joint Secretary to the Government of India in his communication that the Government of India had “carefully considered the points made by the applicant(s)”. ‘there is no evidence as to who considered the “points” and what was considered. The Central Government is by s.36 invested with the judicial power of the State Orders involving important disputes are brought before the Government. The orders made by the Central Government are subject to appeal to this Court under Art. 136 of the Constitution. It would be impossible for this Court, exercising jurisdiction under Art. 136, to decide the dispute without a speaking order of the authority,. setting out the nature of the dispute the arguments in support thereof raised by the aggrieved party and reasonably disclosing. that the matter received due consideration by the authority competent to decide the dispute. Exercise of the right to appeal to this Court would be futile, if the authority chooses not be disclose the reasons in support of the decision reached by it. A party who at broaches the Government in exercise of a statutory right for Adjudication of a dispute is entitled to know at least the official designation of the person who has considered the matter, what was considered by him, and the reasons’ for recording a decision against him. To enable the High Court or this Court to exercise its constitutional powers, not only the decision, but an adequate disclosure of materials justifying an inference that there has been a judicial consideration of the dispute, by an authority competent in that behalf in the light of the claim made by the aggrieved party, is necessary. To enable the High Court or this Court to exercise its constitutional powers, not only the decision, but an adequate disclosure of materials justifying an inference that there has been a judicial consideration of the dispute, by an authority competent in that behalf in the light of the claim made by the aggrieved party, is necessary. If the Officer acting on behalf of the Government chooses to give no reasons, the right of appeal will be devoid of any substance. 11. In this case the communication from the Central Government gave no reasons in support of the order: the appellant Company is merely intimated thereby that the Government of India did not see any reasons to interfere “with the order in appeal”. The communication does not disclose the “points” which were considered, and the reasons for rejecting them. This is a totally unsatisfactory method of disposal of a case in exercise of the judicial power vested in the ,Central Government. Necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached, in cases where a non-judicial authority exercises judicial functions, is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, this Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. The Court insists upon disclosure of reasons in support of the order on two grounds: one, that the party aggrieved in a proceeding before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were ,erroneous: the other,, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the, executive authority invested with the judicial power.” (iv) Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others, AIR 1999 SC 22 : (1998) 8 SCC 1 : LNIND 1998 SC 970: “72. In the instant case, it has already been indicated above that when the Assistant Registrar of Trade Marks dismissed appellant’s opposition to the registration of respondent’s Trade Mark by its order dated 12.8.1992, it filed an appeal in the Delhi High Court, which was admitted on 1.2.1993 and has since been registered as C.M.(Main) 414 of 1992. In the instant case, it has already been indicated above that when the Assistant Registrar of Trade Marks dismissed appellant’s opposition to the registration of respondent’s Trade Mark by its order dated 12.8.1992, it filed an appeal in the Delhi High Court, which was admitted on 1.2.1993 and has since been registered as C.M.(Main) 414 of 1992. Thereafter, on 4.8.1993, the appellant filed a rectification petition under Sections 45 and 46 of the Act for removing the entry relating to the Trade Mark for which Registration Certificate was granted to the respondents on 30.11.1992. The appellant has also filed a suit for passing-off (Suit No. 1705 of 1994) in the Delhi High Court against the respondents in which an order of temporary injunction has been granted in favour of the appellant which has been upheld by the Division Bench of the High Court as also by this Court. In that suit, an amendment application has also been filed so as to include the ground of infringement of the appellant’s Trade Mark but that application has not yet been disposed of. It is, however, obvious that if the application is allowed, the amendments will relate back to the date of the application, if not to the date of plaint. In view of the pendency of these proceedings in the High Court and specially in view of Section 107 of the Act, the Registrar could not legally issue any suo motu notice to the appellant under Section 56(4) of the Act for cancellation of the Certificate of Registration/Renewal already granted. The appeal is consequently allowed and the show-cause notice issued by the Deputy Registrar (respondent No. 2) on 26th of Sept. 1997 under Section 56(4) of the Act is hereby quashed. The appellants shall be entitled to their costs.” (v) Union of India and Another v. E.K. Andrew 1999 (95) Comp. Cases 537 : “23. Now let us broadly examine whether exhibit P-8 order will conform to the general principles of natural justice or to the specific rule “the one who decides must hear”. If exhibit P-8 does not conform to the latter it ipso facto contravenes the former. The examination of the entire question therefore involves simultaneous consideration. Exhibit P-8 order has been passed by Sri K.J. Reddy, Additional Secretary and he is the officer who decided the appeal on June 13, 1991. If exhibit P-8 does not conform to the latter it ipso facto contravenes the former. The examination of the entire question therefore involves simultaneous consideration. Exhibit P-8 order has been passed by Sri K.J. Reddy, Additional Secretary and he is the officer who decided the appeal on June 13, 1991. Admittedly he did not hear the respondent and he is thus a totally unknown person to him. His name was not disclosed earlier at any point of time. However, in paragraph 17 of the impugned order it is stated ; “In his submissions in the course of oral hearing the appellant has argued . . .” This statement appears to be a misleading statement in view of the fact that the respondent was not heard by Sri K.J. Reddy. He did not further explain the background of the said statement. Pursuant to exhibit P-3 notice the respondent appeared before Sri V.P. Sawhney, Additional Secretary and argued his case on July 19, 1989. Again he appeared before Sri D.R. Mehta, Additional Secretary, on June 25, 1990, Though these two officers heard the respondent personally no decision was taken by them. These facts are undisputed. If any one of them had passed order, he maintains, it would have been definitely in his favour inasmuch as they had fully grasped the real issue during the personal hearing. There is no application of mind by Sri K.J. Reddy, after personally hearing the respondent. Elaborate consideration of contentions is never a substitute for personal hearing. When this court gives a mandate it cannot be bypassed or defeated, directly or indirectly by adopting a devious method. This court will always disdain such practice. This is a case where the personal hearing ordered by this court has become an empty formality. Every citizen is entitled to know as to by whom and how the dispute is going to be adjudicated. The authority designated to decide the dispute shall not remain anonymous. It must be certain and definite. Such authority cannot be changed frequently according to the whims and fancies of the superior authorities under the guise of institutional hearing. The sense of natural justice requires that the citizen must be told that the dispute would be finally dealt with by a specified authority before whom he has a right to appear and plead. This can be dispensed with if there is prescribed procedure or rules of practice. The sense of natural justice requires that the citizen must be told that the dispute would be finally dealt with by a specified authority before whom he has a right to appear and plead. This can be dispensed with if there is prescribed procedure or rules of practice. “It is a cardinal principle of our judicial system that a case should be decided by the authority hearing the arguments and that a successor cannot decide a case without hearing the arguments afresh on the ground that arguments have already been advanced before his predecessor who left the case without deciding it himself.” This is the view taken by a Division Bench of the Punjab High Court in Amir Singh v. Government of India, AIR 1965 Punjab 84. A learned single judge of this court (T. L. Viswanatha Iyer J.) expressed the view in Bhattathiripad v. Tahsildar (1994) 1 KLT 790 , 793 thus: “Even in the first instance, I may state that the order exhibit P-7 is void as one passed in violation of the principles of natural justice as it has been passed by an officer who did not hear the revision petition. It is clear from exhibit P-7 itself that the hearing was done by the then incumbent in office on August 14, 1991, but the order exhibit P-7 was passed by the successor on September 17, 1991. The person who heard the revision on August 14, 1991, has not passed the order, though from what appears in exhibit P-7, he had made some notes of hearing in the note file. These notes were utilised by the successor and made into an order which he pronounced as exhibit P-7. Admittedly there was no further hearing of the matter. In the circumstances the order passed by a person who did not hear the matter and who did not have any opportunity to come to grips with the issues arising for consideration, is violative of the principles of natural justice and is liable to be quashed on this ground itself.” 24. We agree with the view expressed in the aforesaid decisions. 25. Finally, it cannot be said that this is a case where no prejudice is caused to the respondent. We agree with the view expressed in the aforesaid decisions. 25. Finally, it cannot be said that this is a case where no prejudice is caused to the respondent. Serious prejudice is caused to him due to the failure to grant personal hearing by the officer who passed exhibit P-8 rejecting the appeal against the order removing him from service. The learned single judge has exercised his discretionary power under Article 226 and quashed exhibit P-8 order for the reasons recorded therein. For the reasons discussed hereinabove, we do not propose to upset the said decision in this appeal. The appeal is accordingly dismissed.” (vi) Mahavir Mirror Industries, Rep. By its Proprietor and Another v. The Designated Authority Director General of Anti Dumping and Allied Duties, Ministry of Commerce and Industry, Government of India, New Delhi and two Others, 2003 (2) CTC 333 : LNIND 2003 MAD 464 : (2003) 2 MLJ 250 : “15. It is well settled law that the principles of natural justice, are not embodied rules and the nature and extent of compliance within the principles of natural justice would always depend upon facts and circusmtances of a given case, as well as the interpretation of the various rules. It is, of course, true that a matter of normal principle, the principles of natural justice should be read into the provisions of the statute, unless applicability of such principles of natural justice is expressly or impliedly excluded. It is to be noticed that in rules 6(vi) the rule making authority has merely used the expression that such authority “may allow” the interested party or its representative “to present the information relevant to the investigation orally” and there is no mandatory direction that the designated authority is bound to allow such an opportunity. On the other hand, the language used in under Rules 6(2)(3) and (5) of the Rules, appears to be mandatory in nature. More over under rule 6(6) the oral information shall be taken into consideration by the designated authority, only if subsequently such information is reproduced in writing. It is not the case of the petitioners that they were prevented from furnishing any relevant informations in writing.” (vii) Reliance Industries Ltd., v. Designated Authority and Others, (2006) 10 SCC 368 : LNIND 2006 SC 709: “26. It is not the case of the petitioners that they were prevented from furnishing any relevant informations in writing.” (vii) Reliance Industries Ltd., v. Designated Authority and Others, (2006) 10 SCC 368 : LNIND 2006 SC 709: “26. In our opinion, the DA has clearly erred in law because the Authority was required to carry out the determination of injury and computation of NIP for the domestic industry as a whole, and not in respect of any particular company or enterprise. The above is apparent from the definition of “domestic industry” under Rule 2(b) of the Anti Dumping Rules. Rule 2(b) states: “2(b) “domestic industry” means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in which case such producers shall be deemed not to form part of domestic industry; Provided that in exceptional circumstances referred to in sub-rule (3) of rule 11, the domestic industry in relation to the article in question shall be deemed to comprise two or more competitive markets and the procedures within each of such market a separate industry, if- (i) the producers within such a market sell all or almost all of their production of the article in question in the market, and (ii) the deemed in the market is not in any substantial degree supplied by producers of the said article located elsewhere in the territory;” 27. The provisions relating to injury analysis in Annexure II to the Anti-dumping Rules are also clear that the injury determination is always for the domestic industry as a whole and not for individual companies. 28. In our opinion, since the NIP is for the industry as a whole, it is immaterial if a particular company produces some of its inputs captively. In our opinion, for the purpose of determination of NIP, the DA is always required to take into consideration the transfer price (market value) of the inputs and not their actual cost of captive production. In our opinion, for the purpose of determination of NIP, the DA is always required to take into consideration the transfer price (market value) of the inputs and not their actual cost of captive production. This is because the entire investigation, analysis, recommendation and imposition are for the product under consideration for the whole domestic industry and not for the individual companies and inputs captively manufactured which may be involved in the production and sales of the goods. 29. The approach adopted by the DA, in our opinion, will lead to a situation where an artificial discrimination will be created between the integrated and non-integrated companies to the peril of the smaller plants with no backward integration (backward integration means a factory which also produces its own raw materials etc.). In such situations, the result will be that the companies with no backward integration will suffer adversely. In our opinion, this was neither envisaged under the law nor can be considered as a desired result. The Anti-dumping legislation is meant for protection of the domestic industries as a whole against unfair practice of dumping, irrespective of whether they are backwardly integrated or not. 30. In our opinion there has to be a single NIP for a product as envisaged by the Rules, and not several NIPs for the same product. The approach adopted by the DA and the Tribunal would, however, result in several NIPs for the same product, because if actual cost of the input is seen for individual units it will differ between units captively producing their inputs and those buying it from the market. This is clearly untenable. 31. In the present case, the DA has recorded a finding that the normal value is exporter specific. In our opinion this is contrary to the Supreme Court judgment in Designated Authority (Anti-Dumping Directorate v. Haldor Topsoe A/S., (2000) 6 SCC 626 . In page 635 of the said judgment, this Court observed: “With respect, we are unable to accept this finding of the Tribunal. From a careful reading of Section 9-A of the Tariff Act and Rule 6 of the Rules, it is clear that the statute has nowhere put such a restriction on the investigating authority. In page 635 of the said judgment, this Court observed: “With respect, we are unable to accept this finding of the Tribunal. From a careful reading of Section 9-A of the Tariff Act and Rule 6 of the Rules, it is clear that the statute has nowhere put such a restriction on the investigating authority. On the contrary, a perusal of the said provisions clearly shows that the “normal value” will have to be determined with reference to comparable price, the words “comparable price” in the context can only be with reference to the price of similar articles sold under similar circumstances irrespective of the manufacturer. By holding anti-dumping duty to be export-specific, the Tribunal could not have restricted the scope of the investigation only to materials to be produced by a party against whom an investigation is being conducted. Such an interpretation of the statute is wholly contrary to the very scheme of the statute”. 32. In our opinion, both normal value and NIP are not exporter or domestic industry specific respectively but exporting country specific and importing country specific (India). Once dumping of specific goods from a country is established, dumping duty can be imposed on all exports of those goods from that country to India under Section 9A, irrespective of the exporter. The rate of duty may vary from exporter to exporter depending upon the export price. Similarly, as regards the matter of NIP it is the reasonable price which the subject goods can be produced by the domestic industry as a whole in India that is relevant. Special advantages and disadvantages that one or more domestic producers may have, as a result of manufacture of raw material or utilities that are going into the production of the commodity under investigation, should, in our opinion, be ignored for determination of the NIP for the domestic industry as a whole. 33. The purpose of imposition of duty is both to redress injury and to prevent material retardation of the establishment or growth of that industry (vide S. 9B(1) (b)(ii), rules 11, 17(a)(ii) and Annexure II). 33. The purpose of imposition of duty is both to redress injury and to prevent material retardation of the establishment or growth of that industry (vide S. 9B(1) (b)(ii), rules 11, 17(a)(ii) and Annexure II). In the present case by fixing an NIP based upon specific advantages in the matter of electricity that the appellant company processed, and permitting dumping of the PTA into India, the DA has ensured that no other company can set up PTA manufacturing facilities without also being in a position to generate its own electricity at a price less than the price of electricity generally available in the domestic market. This, in our opinion, is surely not tenable, as it will result in discrimination. 34. In our opinion the DA has clearly ignored the purpose for which the NIP is computed. The DA has failed to appreciate that once dumping and injury is established, the existence of an unfair trade practice by the exporters is undisputed and a restrictive view in computing an unduly low NIP would lead to granting a premium to the erring exporters at the cost of the domestic industry, which is suffering injury. 35. In our opinion, the DA’s determination of NIP was arbitrary and misguided, as the DA has not considered the actual production achieved by the domestic industry for the purpose of apportionment of fixed costs. On the contrary, it was revealed during the hearing that the DA computes the NIP on the basis of the best capacity utilization achieved in the preceding three years. In fact, there is no established practice of the DA in this regard, and the level of capacity utilization taken into account by the DA varies from case to case leading to total arbitrariness and unguided use of power. In our opinion, there is no basis to adopt the best capacity utilization achieved in the past period as the industry is generally bound to achieve higher capacity utilization if it is not affected by injurious dumping. The apportionment of the fixed costs has to be necessarily done on the basis of actual production during the period of investigation and not an assumed level of capacity utilization to avoid all arbitrariness. The apportionment of the fixed costs has to be necessarily done on the basis of actual production during the period of investigation and not an assumed level of capacity utilization to avoid all arbitrariness. Thus, in our opinion, the DA’s approach is clearly incorrect inasmuch as it is not the determination of optimum capacity utilization of the domestic industry, but the actual capacity utilization which would be the correct approach. Even as a matter of principle the use of capacity or capacity utilization level in computing the cost of production is unworkable for another reason. The capacity of a particular plant is wholly dependent upon the product mix. For example, the production of a fabric plant in square meters or tonnage basis will be less if the design is intricate. On the other hand, if the fabric is plain, the production expressed in square meters or tonnage basis would be much higher. If the approach of the DA is accepted, it would in our opinion lead to a strange situation where the capacity utilization of the same plant would vary from month to month and from batch to batch of production. In other words, the capacity itself would be indeterminate for plants where the product mix itself is variable. It is for this reason that in our opinion the actual production would be the only and the most appropriate method for arriving at the cost of production. 36. For the purpose of computing the NIP, the DA appears to have taken the best capacity utilization (which is in excess of 100%) over the past three years for the purpose of apportionment of the fixed expenses in preference to the actual capacity utilization during the period of investigation. In our opinion, this has led to an unusual reduction in the fixed expenses per unit and a consequent reduction in the NIP. This again is clearly untenable. 37. In our opinion, the NIP needs to be revised by taking the market price of electricity and the actual capacity utilization during the period of investigation. Further, the DA should be directed not to misuse Rule 7, by keeping confidential its findings and that too from the person who has supplied the information to it. 38. 37. In our opinion, the NIP needs to be revised by taking the market price of electricity and the actual capacity utilization during the period of investigation. Further, the DA should be directed not to misuse Rule 7, by keeping confidential its findings and that too from the person who has supplied the information to it. 38. We are of the opinion that the nature of the proceedings before the DA are quasi-judicial, and it is well-settled that a quasi-judicial decision, or even an administrative decision which has civil consequences, must be in accordance with the principles of natural justice, and hence reasons have to be disclosed by the authority in that decision vide S.N. Mukherjee v. Union of India. 39. We do not agree with the Tribunal that the notification of the Central Government under Section 9A is a legislative Act. In our opinion, it is clearly quasi-judicial. The proceedings before the DA is to determine the lis between the domestic industry on the one hand and the importer of foreign goods from the foreign supplier on the other. The determination of the recommendation of the DA and the Government notification on its basis is subject to an appeal before the CESTAT. This also makes it clear that the proceedings before the DA are quasi-judicial. 40. In the present case, the NIP computed by the DA was much lower than that computed by the appellant, and the reasons for such variance and detailed calculations were not disclosed by the DA to the appellant. No good reasons were given for reducing the cost price of electricity supplied by the appellant produced in its captive power plant. This was clearly illegal. 41. The DA claimed confidentiality from the appellant about its finding on the data supplied by the appellant itself. In our opinion, there was nothing confidential in the matter, and hence reasons for not accepting the appellant’s version should have been stated in the order of the DA. 42. Learned counsel for the respondent has relied on Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, which states as under: “7. 42. Learned counsel for the respondent has relied on Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, which states as under: “7. Confidential informations (1) Notwithstanding anything contained in sub-rules (2), (3) and (7) of rule 6, sub-rule (2) of rule 12, sub-rule (4) of rule 15 and sub-rule (4) of rule 17, the copies of applications received under sub-rule (1) of rule 5, or any other information provided to the designated authority on a confidential basis by any party in the course of investigation, shall, upon the designated authority being satisfied as to its confidentiality, be treated as such by it and no such information shall be disclosed to any other party without specific authorization of the party providing such information. (2) The designated authority may require the parties providing information on confidential basis to furnish non confidential summary thereof and if, in the opinion of a party providing such information, such information is not susceptible of summary, such party may, submit to the designated authority a statement of reasons why summarization is not possible. (3) Notwithstanding anything contained in sub-rule (2), if the designated authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosure in a generalized or summary from, it may disregard such information”. 43. In our opinion, Rule 7 does not contemplate any right in the DA to claim confidentiality. Rule 7 specifically provides that the right of confidentiality is restricted to the party who has supplied the information, and that party has also to satisfy the DA that the matter is really confidential. Nowhere in the rule has it been provided that the DA has the right to claim confidentiality, particularly regarding information which pertains to the party which has supplied the same. In the present case, the DA failed to provide the detailed costing information to the appellant on the basis of which it computed the NIP, even though the appellant was the sole producer of the product under consideration, in the country. In our opinion this was clearly illegal, and not contemplated by Rule 7. 44. In the present case, the DA failed to provide the detailed costing information to the appellant on the basis of which it computed the NIP, even though the appellant was the sole producer of the product under consideration, in the country. In our opinion this was clearly illegal, and not contemplated by Rule 7. 44. In this connection, this Court in Sterlite Industries (India) Ltd. v. Designated Authority, (2003) 158 ELT 673 observed thus: “In our view, it is not necessary for us to go into the merits of this matter as we propose to send the matter back to CEGAT after laying down certain guidelines. From what has been argued before us, it appears that in pursuance of Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 the Designated Authority is treating all material submitted to it as confidential merely on a party asking that it be treated confidential. In our view, that is not the purport of Rule 7. Under Rule 7, the Designated Authority has to be satisfied as to the confidentiality of that material. Even if the material is confidential the Designated Authority has to ask the parties providing information, on confidential basis, to furnish a non- confidential summary thereof. If such a statement is not being furnished then that party should submit to the Designated Authority a statement of reasons why summarization is not possible. In any event, under Rule 7(3) the Designated Authority can come to the conclusion that confidentiality is not warranted and it may, in certain cases, disregard that information. It must be remembered that not making relevant material available to the other side affects the other side, as they get handicapped in filing an effective appeal. Therefore, confidentiality under Rule 7 is not something, which must be automatically assumed. Of course, in such cases there is need for confidentiality, as otherwise trade competitors would obtain confidential information, which they cannot otherwise get. But whether information supplied is required to be kept confidential has to be considered on a case-to-case basis. It is for the Designated Authority to decide whether a particular material is required to be kept confidential. Even where confidentiality is required, it will always be open for the appellate authority, namely, CEGAT to look into the relevant files”. (emphasis supplied) 45. It is for the Designated Authority to decide whether a particular material is required to be kept confidential. Even where confidentiality is required, it will always be open for the appellate authority, namely, CEGAT to look into the relevant files”. (emphasis supplied) 45. In our opinion, excessive and unwarranted claim of confidentiality defeats the right to appeal. In the absence of knowledge of the consequences, grounds, reasoning and methodology by which the DA has arrived at its decision and made its recommendation, the parties to the proceedings cannot effectively exercise their right to appeal either before the Tribunal or this Court. This is contrary to the view taken by the Constitution Bench of this Court in S.N. Mukherjee v. Union of India case (supra). 46. Although this judgment may not benefit the appellant for the past period, we have thought it necessary to lay down the law in this connection since the Anti Dumping Law operates continuously and on a day-to-day basis and hence its principles have to be clarified. The Anti Dumping Law is extremely important for the country’s industrial progress and hence there should be total transparency and fairness in its implementation. 47. Before parting with this case, we would like to state that our national aim must be to create India as a modern, highly industrialized, powerful state. The real world today is cruel and harsh. It respects power, not poverty or weakness, and power comes from a high level of industrialization. Hence, if we wish to get respect in the comity of nations, we must make India a modern, powerful, highly industrialized state. The truth is that today India is poor. As Rajni Palme Dutt wrote in his book ‘India’, ‘India is a rich country with poor people’. We are rich in raw materials, rich in industrial skills, we have outstanding scientists, engineers, technicians and managers. Despite all this we are a poor nation. Hence, if we want to command respect in the comity of nations, we must rapidly industrialize and make India a powerful, modern, highly industrialized nation. It is industrialization alone which can generate the wealth which we require for the welfare of our people and for progress. Hence our national aim must be rapid industrialization as that is the solution to our country’s problems. It is industrialization alone which can generate the wealth which we require for the welfare of our people and for progress. Hence our national aim must be rapid industrialization as that is the solution to our country’s problems. Industrialization will also provide large scale employment to our people, and will help the growth of science and technology, which is absolutely essential to our progress. 48. The Anti Dumping Law is, therefore, a salutary measure which prevents destruction of our industries which were built up after independence under the guidance of our patriotic, modern minded leaders at that time and it is the task of everyone today to see to it that there is further rapid industrialization in our country, to make India a modern, powerful, highly industrialized nation.” (viii) Bhikhubhai Vithlabhai Patel and Others v. State of Gujarat and Another, AIR 2008 SC 1771 : (2008) 4 SCC 144 : LNIND 2008 SC 713: “17. Whether the action of the State Government in issuing preliminary notification and the final notification designating the said lands for educational use is valid? Whether the action is ultra vires? 18. Before we address ourselves to the questions for their determination it would be appropriate to notice Sections 17 and 21 which are as under : ‘17. Whether the action of the State Government in issuing preliminary notification and the final notification designating the said lands for educational use is valid? Whether the action is ultra vires? 18. Before we address ourselves to the questions for their determination it would be appropriate to notice Sections 17 and 21 which are as under : ‘17. Power of State Government to sasnction draft development plan – (1) (a) On receipt of the draft development plan under Section 16, the State Government may, by notification, (i) sanction the draft development plan and the regulation so received, within the prescribed period, for the whole of the area covered by the plan or separately for any part thereof, either without modification, or subject to such modification, as it may consider proper; or (ii) return the draft development plan and the regulations to the area development authority or, as the case may be, to the authorized officer, for modifying the plan and the regulations in such manner as it may direct: Provided that, where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary, the State Government may, instead of returning them to the area development authority, as the case may be, the authorised officer under this sub-clause, publish the modifications so considered necessary in the Official Gazette alongwith a notice in the prescribed manner inviting suggestions or objections from any person with respect to the proposed modifications within a period of two months from the date of publication of such notice; or. 28. In the case in hand, was there any material before the State Government for its consideration that it had become necessary to make substantial modifications to the draft development plan? The emphatic answer is, none. The record does not reveal that there has been any consideration by the State Government that necessity had arisen to make substantial modifications to the draft development plan. We are of the view that there has been no formation of the opinion by the State Government which is a condition precedent for exercising the power under the proviso to Section 17 (1) (a) (ii) of the Act. 29. We are of the view that there has been no formation of the opinion by the State Government which is a condition precedent for exercising the power under the proviso to Section 17 (1) (a) (ii) of the Act. 29. In Barium Chemicals Ltd. v. Company Law Board this Court pointed out, on consideration of several English and Indian authorities that the expressions is satisfied, is of the opinion and has reason to believe are indicative of subjective satisfaction, though it is true that the nature of the power has to be determined on a totality of consideration of all the relevant provisions. This Court while construing Section 237 of the Companies Act, 1956 held: (AIR p.325, para 64) “64. The object of Section 237 is to safeguard the interests of those dealing with a company by providing for an investigation where the management is so conducted as to jeopardize those interests or where a company is floated for a fraudulent or an unlawful object. Clause (a) does not create any difficulty as investigation is instituted either at the wishes of the company itself expressed through a special resolution or through an order of the court where a judicial process intervenes. Clause (b), on the other hand, leaves directing an investigation to the subjective opinion of the government or the Board. Since the legislature enacted s. 637 (i) (a) it knew that government would entrust to the Board its power under s. 237 (b). Could the legislature have left without any restraints or limitations the entire power of ordering an investigation to the subjective decision of the Government or the Board? There is no doubt that the formation of opinion by the Central Government is a purely subjective process. There can also be no doubt that since the legislature has provided for the opinion of the government and not of the court such an opinion is not subject to a challenge on the ground of propriety, reasonableness or sufficiency. But the Authority is required to arrive at such an opinion from circumstances suggesting what is set out in sub-clauses (i), (ii) or (iii). If these circumstances were not to exist, can the government still say that in its opinion they exist or can the Government say the same thing where the circumstances relevant to the clause do not exist? The legislature no doubt has used the expression “circumstances suggesting”. If these circumstances were not to exist, can the government still say that in its opinion they exist or can the Government say the same thing where the circumstances relevant to the clause do not exist? The legislature no doubt has used the expression “circumstances suggesting”. But that expression means that the circumstances need not be such as would conclusively establish an intent to defraud or a fraudulent or illegal purpose. The proof of such an intent or purpose is still to be adduced through an investigation. But the expression “circumstances suggesting” cannot support the construction that even the existence of circumstances is a matter of subjective opinion. That expression points out that there must exist circumstances from which the Authority forms an opinion that they are suggestive of the crucial matters set out in the three sub-clauses. It is hard to contemplate that the legislature could have left to the subjective process both the formation of opinion and also the existence of circumstances on which it is to be founded. It is also not reasonable to say that the clause permitted the Authority to say that it has formed the opinion on circumstances which in its opinion exist and which in its opinion suggest an intent to defraud or a fraudulent or unlawful purpose. It is equally unreasonable to think that the legislature could have abandoned even the small safeguard of requiring the opinion to be founded on existent circumstances which suggest the things for which an investigation can be ordered and left the opinion and even the existence of circumstances from which it is to be formed to a subjective process. These analysis finds support in Gower’s Modern Company Law (2nd Ed.) p. 547 where the learned author, while dealing with s. 165(b) of the English Act observes that “the Board of Trade will always exercise its discretionary power in the light of specified grounds for an appointment on their own motion” and that “they may be trusted not to appoint unless the circumstances warrant it but they will test the need on the basis of public and commercial morality.” There must therefore exist circumstances which in the opinion of the Authority suggest what has been set out in sub- clauses (i), (ii) or (iii). If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute. 30. This Court while expressly referring to the expressions such as “reason to believe”, “in the opinion of” observed: (AIR p.324, para 63) “63.... Therefore, the words, reason to believe or in the opinion of do not always lead to the construction that the process of entertaining reason to believe or the opinion is an altogether subjective to process not lending itself even to a limited scrutiny by the court that such a reason to believe or opinion was not formed on relevant facts or within the limits or as Lord Radcliffe and Lord Reid called the restraints of the statute as an alternative safeguard to rules of natural justice where the function is administrative.” 31. In ITO v. Lakhmani Mewal Das, this court construed the expressions reason to believe employed in Section 147 of the Income-tax Act, 1961 and observed: the reasons for the formation of the belief must have a rational connection with or relevant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income-tax Officer and the formation of his belief that there has been escapement of the income of the assessee from assessment in the particular year because of his failure to disclose fully or truly all material facts. It is not any or every material, howsoever vague and indefinite or distant which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. The reason for the formation of the belief must be held in good faith and should not be a mere pretence. 32. We are of the view that the construction placed on the expression reason to believe will equally be applicable to the expression is of opinion employed in the proviso to Section 17 (1) (a) (ii) of the Act. The reason for the formation of the belief must be held in good faith and should not be a mere pretence. 32. We are of the view that the construction placed on the expression reason to believe will equally be applicable to the expression is of opinion employed in the proviso to Section 17 (1) (a) (ii) of the Act. The expression is of opinion, that substantial modifications in the draft development plan and regulations, are necessary, in our considered opinion, does not confer any unlimited discretion on the Government. The discretion, if any, conferred upon the State Government to make substantial modifications in the draft development plan is not unfettered. There is nothing like absolute or unfettered discretion and at any rate in the case of statutory powers. The basic principles in this regard are clearly expressed and explained by Prof. Sir William Wade in Administrative law (Ninth Edn.) in the chapter entitled abuse of discretion and under the general heading the principle of reasonableness which read as under: “The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crowns lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal line is to be drawn. For this purpose everything depends upon the true intent and meaning of the empowering Act. The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependents, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do none of these things it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good. There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed.” 33. The Court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The Court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute.” (ix) Competition Commission of India v. Steel Authority of India Ltd. (supra): “93. We may also usefully note that the functions performed by the Commission under Section 26(1) of the Act are in the nature of preparatory measures in contrast to the decision making process. That is the precise reason that the legislature has used the word “direction” to be issued to the Director General for investigation in that provision and not that the Commission shall take a decision or pass an order directing inquiry into the allegations made in the reference to the Commission. 94. The Tribunal, in the impugned judgment, has taken the view that there is a requirement to record reasons which can be express, or, in any case, followed by necessary implication and therefore, the authority is required to record reasons for coming to the conclusion. 94. The Tribunal, in the impugned judgment, has taken the view that there is a requirement to record reasons which can be express, or, in any case, followed by necessary implication and therefore, the authority is required to record reasons for coming to the conclusion. The proposition of law whether an administrative or quasi judicial body, particularly judicial courts, should record reasons in support of their decisions or orders is no more res integra and has been settled by a recent judgment of this Court in CCT v. Shukla & Bros., wherein this Court was primarily concerned with the High Court dismissing the appeals without recording any reasons. The Court also examined the practice and requirement of providing reasons for conclusions, orders and directions given by the quasi-judicial and administrative bodies. 95. The Court examined various judgments of this Court in relation to its application to administrative law and held as under: “11. The Supreme Court in S.N. Mukherjee v. Union of India, while referring to the practice adopted and insistence placed by the Courts in United States, emphasized the importance of recording of reasons for decisions by the administrative authorities and tribunals. It said “administrative process will best be vindicated by clarity in its exercise”. To enable the Courts to exercise the power of review in consonance with settled principles, the authorities are advised of the considerations underlining the action under review. This Court with approval stated: “11.... “the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.” 13. At the cost of repetition, we may notice, that this Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the Court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the Court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher Court in the event of challenge to that judgment... 14. The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with higher degree of satisfaction. The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between passing of an order by an administrative or quasi-judicial authority has practically extinguished and both are required to pass reasoned orders...” In this very judgment, the Court while referring to other decisions of the Court held that it is essential that administrative authorities and tribunals should accord fair and proper hearing to the affected persons and record explicit reasons in support of the order made by them. 96. Even in cases of supersession, it was held in Gurdial Singh Fijji v. State of Punjab that reasons for supersession should be essentially provided in the order of the authority. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge- made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge- made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision. Reference can be made to Alexander Machinery (Dudley) Ltd. v. Crabtree in this regard. 97. The above reasoning and the principles enunciated, which are consistent with the settled canons of law, we would adopt even in this case. In the backdrop of these determinants, we may refer to the provisions of the Act. Section 26, under its different sub-sections, requires the Commission to issue various directions, take decisions and pass orders, some of which are even appealable before the Tribunal. Even if it is a direction under any of the provisions and not a decision, conclusion or order passed on merits by the Commission, it is expected that the same would be supported by some reasoning. At the stage of forming a prima facie view, as required under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General. Such view should be recorded with reference to the information furnished to the Commission. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the Commission under the various provisions of the Act, as afore-referred. However, other decisions and orders, which are not directions simpliciter and determining the rights of the parties, should be well reasoned analyzing and deciding the rival contentions raised before the Commission by the parties. In other words, the Commission is expected to express prima facie view in terms of Section 26(1) of the Act, without entering into any adjudicatory or determinative process and by recording minimum reasons substantiating the formation of such opinion, while all its other orders and decisions should be well reasoned. 98. In other words, the Commission is expected to express prima facie view in terms of Section 26(1) of the Act, without entering into any adjudicatory or determinative process and by recording minimum reasons substantiating the formation of such opinion, while all its other orders and decisions should be well reasoned. 98. Such an approach can also be justified with reference to Regulation 20(4), which requires the Director General to record, in his report, findings on each of the allegations made by a party in the intimation or reference submitted to the Commission and sent for investigation to the Director General, as the case may be, together with all evidence and documents collected during investigation. The inevitable consequence is that the Commission is similarly expected to write appropriate reasons on every issue while passing an order under Sections 26 to 28 of the Act.” (x) SRC Projects Private Limited v. Commissioner of Commercial Taxes, Chennai and Another, (2010) 33 VST 333 (Mad): “Since the questions overlap, all of them are discussed together, Before dealing with those questions, this Court proposes to consider a few authorities on the content of the expression “reasonable opportunity to show cause”. It may be true if the provision of reasonable opportunity to show cause is considered bereft of the circular, then it may not be held that it includes an opportunity of personal hearing. But then in a case where the question involved is one of determination of certain factual disputes, which are a bit complex and not free from controversy, the Court has to consider whether principles of fairness would encompass personal hearing within the concept of “reasonable opportunity to show cause”under Section 16(1)(a) of the said Act. Reference in this connection may be made to Profession Wade’s Treatise on Administrative Law (9th Edition). At page 517 of the said treatise the learned author has emphasised that a “hearing will normally be an oral hearing”. But, in some cases, it is sufficient to give an opportunity to make a representation in writing provided that no adverse materials are disclosed and further the demands of fairness are sufficiently met. Similar views have been expressed in De Smith’s Judicial Review of Administrative Action, (6th Edition) at page 397. But, in some cases, it is sufficient to give an opportunity to make a representation in writing provided that no adverse materials are disclosed and further the demands of fairness are sufficiently met. Similar views have been expressed in De Smith’s Judicial Review of Administrative Action, (6th Edition) at page 397. The learned author opined that a fair hearing does not necessarily mean that there must be an opportunity to be heard orally, but one is entitled to an oral hearing where fairness requires that there should be such hearing. But, fairness does not require that there should be an oral hearing in every case. However, the learned author referred to the decision in Sengupta v. Holms (2002) EWCA Civ 1104 at (38) and quoted the views of Laws L.J. where the learned judge held that “central place is accorded to oral argument in our common law adversarial system”. The learned judge further said that “...this I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by the judge. That judges in fact change their minds under the influence of oral arguments is not an arcane feature of the system; it is at the center of it”(see pages 396 and 397 of the book). In some of the judgments of the honourable Supreme Court similar views have been expressed. In State of Bombay v. Nurul Latif Khan AIR 1966 SC 269 , a three-judge Bench of the honourable Supreme Court, speaking through Chief Justice Gajendragadkar, was considering the ambit of rule 55 of the Civil Services (Classification, Control Appeal) Rules, 1930. The relevant clause in the rule provides an officer charge-sheeted shall be required within a reasonable time to put in a written statement of his defence and the State whether he desires to be heard in person. There is a further clause in the rule, which lays down that if the charge-sheeted officer so desires and the concerned authority so directs, an oral enquiry shall be held. Considering the said rule, the learned judges held that if the charge sheeted officer desires, oral hearing is mandatory. The learned judges held that this requirement is plainly based on considerations of natural justice and fair play (see para 13 at page 274). Considering the said rule, the learned judges held that if the charge sheeted officer desires, oral hearing is mandatory. The learned judges held that this requirement is plainly based on considerations of natural justice and fair play (see para 13 at page 274). In this case also in the representation of the petitioner personal hearing was demanded in terms of the said circular but the same was declined by the Revenue. In the case of Travancore Rayons v. Union of India AIR 1971 SC 862 , which is a case under the Central Excises and Salt Act, 1944, the question was whether the appellant-company is entitled to a personal hearing in the revisional proceedings. Justice Shah, speaking for a two judge Bench of the honourable Supreme Court, held that “... it is true that the Rules do not require that personal hearing shall be given, but, if in appropriate cases where complex and difficult questions requiring familiarity with technical problems are raised, personal hearing is given, it would conduce to better administration and more satisfactory disposal of the grievances of citizens.....” This view of the Supreme Court in 1971 is in accord with the views expressed in 2002 by Laws L.J. in Sengupta (2002) EWCA Civ 1104. In the case of Ram Chander v. Union of India AIR 1986 SC 1173 , the learned judges of the Supreme Court held that though the expression “appellate authority shall consider” may not include in opportunity of hearing, but “...objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the final orders that may be passed on his appeal. Considerations of fair-play and justice also require that such a personal hearing should be given”. In State of U.P. v. Maharaja Dharmander Prasad Singh, AIR 1989 SC 997 in paragraph 29 at pages 1010 and 1011 of the Report, the learned judges held that where the grounds require determination of factual matters of some complexity the statutory authority should in the facts of the case have afforded a personal hearing to the lessee. The principle of contemporanea expositio has been applied by the Supreme Court as a principle to expand and elucidate the meaning of statutory provision in National and Grindlays Bank Ltd. v. Municipal Corporation for Greater Bombay AIR 1969 SC 1048 . The principle of contemporanea expositio has been applied by the Supreme Court as a principle to expand and elucidate the meaning of statutory provision in National and Grindlays Bank Ltd. v. Municipal Corporation for Greater Bombay AIR 1969 SC 1048 . The Supreme Court has approved that the court may resort to contemporaneous construction, namely, construction which the authorities have put upon the law for the usage and conduct for longer period of time. The court applied the said principle in construing the provision of section 146(2) of the Bombay Municipal Corporation Act. In doing so, the court referred to and relied upon an old English decision in the case of the Queen v. Commrs. of Inland Revenue (1891) 1 QB 485. Reliance was placed by the court on the judgment of Justice Stephen at page 489 of the Report. In the instant case also the ambit of reasonable opportunity of showing cause under section 16(1)(a) must be interpreted in line with the said circular where it has been provided in a case where the assessee demands for oral hearing such oral hearing should be given. The said circular has been issued by the Commissioner who has to administer the provisions of the said Act. Subsequently also, in the case of R.S. Nayak v. A.R. Antulay (1984) 2 SCC 183 , a Constitution Bench of the Supreme Court has referred to the principle of contemporanea expositio. In construing the provision of Section 21 of the Indian Penal Code, the Supreme Court applied the principle of contemporanea expositio and held that an M.L.A. is not a public servant. The honourable Supreme Court in the case of Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441 referred to the actual practice in the matter of interpretation of constitutional provisions in the appointment of superior judges. The interpretation on the basis of the actual practice is the principle of contemporanea expositio (see pages 694 and 695 of the Report) In the matter dealing with the taxation, the honourable Supreme Court in the case of Union of India v. Azadi Bachao Andolan (2003) 263 ITR 706 (SC) : AIR 2004 SC 1107 has explained the principle of contemporanea expositio by quoting Crawford on Statutory Construction, 1940 Ed. In the said decision the following passage from Crawford has been quoted with approval (page 728 of ITR) “...administrative construction (i.e., contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned such a construction, commonly referred to as practical construction, although non-controlling is nevertheless entitled to considerable weight, it is highly persuasive.” This Court, therefore, holds that the provision of section 16(1)(a) of the said Act has to be construed in accordance with the said circular which is by way of contemporanea expositio. So when a specific demand is made for personal hearing the reasonable opportunity of showing cause should include the same in the interest of fairness in procedure.” (xi) Automotive Tyre Manufacturers Association v. Designated Authority and Others, (2011) 2 SCC 258 : LNIND 2011 SC 30 “82. In light of the aforenoted legal position and the elaborate procedure prescribed in Rule 6 of 1995 Rules, which the DA is obliged to adhere to while conducting investigations, we are convinced that duty to follow the principles of natural justice is implicit in the exercise of power conferred on him under the said Rules. In so far as the instant case is concerned, though it was sought to be pleaded on behalf of the respondents that the incumbent DA had issued a common notice to the Advocates for ATMA and Ningbo Nylon, for oral hearing on 9-3-2005, however, there is no document on record indicating that pursuant to ATMA’s letter dated 24th January 2005, notice for oral hearing was issued to them by the incumbent DA. Moreover, the alleged opportunity of oral hearing on 9-3-2005, being in relation to the price undertaking offer by Ningbo Nylon, cannot be likened to a public hearing contemplated under Rule 6(6) of the 1995 Rules. 83. The procedure prescribed in the 1995 Rules imposes a duty on the DA to afford to all the parties, who have filed objections and adduced evidence, a personal hearing before taking a final decision in the matter. Even written arguments are no substitute for an oral hearing. A personal hearing enables the authority concerned to watch the demeanour of the witnesses etc. and also clear up his doubts during the course of the arguments. Even written arguments are no substitute for an oral hearing. A personal hearing enables the authority concerned to watch the demeanour of the witnesses etc. and also clear up his doubts during the course of the arguments. Moreover, it was also observed in Gullapalli Nageswara Rao and Others v. Andhra Pradesh State Road Transport Corporation and Another (supra), if one person hears and other decides, then personal hearing becomes an empty formality. 84. In the present case, admittedly, the entire material had been collected by the predecessor of the DA; he had allowed the interested parties and/or their representatives to present the relevant information before him in terms of Rule 6(6) but the final findings in the form of an order were recorded by the successor DA, who had no occasion to hear the appellants herein. In our opinion, the final order passed by the new DA offends the basic principle of natural justice. Thus, the impugned notification having been issued on the basis of the final findings of the DA, who failed to follow the principles of natural justice, cannot be sustained. It is quashed accordingly.” (xii) Union of India and Others v. Tantia Construction Private Limited, (2011) 5 SCC 697 : LNIND 2011 SC 429 “29. Admittedly, the work which had to be completed within 15 months from the date of issuance of the letter of acceptance, could not be completed within the said period and, on the other hand, a new element was introduced into the design of the Rail Over-Bridge. It is the case of the Respondent Company that any item of work directed to be performed could not be covered by the original contract dated 12th/13th February, 2007, and realizing the same, the Railways themselves floated a fresh Tender No. 189 of 2008 for the additional work of the extended portion of the Viaduct. 30. We are of the view that the letter dated 12th April, 2008, did not cover the extended work on account of the alteration of the design and was confined to the work originally contracted for. We cannot lose sight of the fact that while the initial cost of the Tender was accepted for 19, 11, 01, 221.84p., the costs for the extended work only was assessed at 24.50 crores and that two offers were received, which were for 34, 11, 16, 279.39p. and 35, 89, 93, 215.66p. respectively. We cannot lose sight of the fact that while the initial cost of the Tender was accepted for 19, 11, 01, 221.84p., the costs for the extended work only was assessed at 24.50 crores and that two offers were received, which were for 34, 11, 16, 279.39p. and 35, 89, 93, 215.66p. respectively. This was only with regard to the extended portion of the work on account of change in design. The Respondent Company was expected to complete the entire work which comprised both the work covered under the initial Tender and the extended work covered by the second Tender. The Respondent had all along expressed its unwillingness to take up the extended work and for whatever reason, it agreed to complete the balance work of the initial contract at the same rates as quoted earlier, despite the fact that a long time had elapsed between the awarding of the contract and the actual execution thereof. 31. In our view, the Respondent Company has satisfactorily explained their position regarding their offer being confined only to the balance work of the original Tender and not to the extended work. The delay occasioned in starting the work was not on account of any fault or lapses on the part of the Respondent Company, but on account of the fact that the project design of the work to be undertaken could not be completed and ultimately involved change in the design itself. The Respondent Company appears to have agreed to complete the varied work of Tender No. 76 of 06-07 which variation had been occasioned on account of the change in the design as against the entire work covering both the first and second Tenders. To proceed on the basis that the Respondent Company was willing to undertake the entire work at the old rates was an error of judgment and the termination of the contract in relation to Tender No. 76 of 06- 07 on the basis of said supposition was unjustified and was rightly set aside by the learned Single Judge of the High Court, which order was affirmed by the Division Bench. 32. 32. The submissions made on behalf of the Petitioners that in terms of Clause 23(2) of the Agreement, the Petitioners were entitled to alter and increase/decrease the scope of the work is not attracted to the facts of this case where the entire design of the Rail Over-Bridge was altered, converting the same into a completely new project. It was not merely a case of increase or decrease in the scope of the work of the original work schedule covered under Tender No. 76 of 06-07, but a case of substantial alteration of the plan itself. 33. Apart from the above, even on the question of maintainability of the writ petition on account of the Arbitration Clause included in the agreement between the parties, it is now well-established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. 34. We endorse the view of the High Court that notwithstanding the provisions relating to the Arbitration Clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the Writ Petition filed on behalf of the Respondent Company.” (xiii) Institute of Chartered Accountants of India and Others v. P. Rama Krishna and Another, (2011) 167 Comp. Cases 244 (Delhi): “37. The intention of the legislation in enacting Section 21D of the CA Act, 1949 is to draw out or make a distinction between the cases pending before the Council on a complaint or on information, and ensure that the amended provisions would apply to a fresh complaint or information and the unamended Act will apply to the pending LPA 396/2010 Page 35 of 37 complaints or information. It is inconceivable and there is no good reason or cause why distinction should be made between ‘information’ and ‘complaint’ for the purpose of deciding whether the amended or unamended provision would apply. It is inconceivable and there is no good reason or cause why distinction should be made between ‘information’ and ‘complaint’ for the purpose of deciding whether the amended or unamended provision would apply. The legislation intent behind incorporating Section 21D is to make the legal position beyond doubt or cavil so that there is no dispute. Even under Section 6 of the General Clauses Act the position is the same. In these circumstances, we would prefer the interpretation placed by the appellant on the word ‘complaint’ as used in Section 21D. The word complaint includes information cases which were pending before the Council on 17th November, 2006. In the facts of the present matter as discussed above, proceedings or complaint in the form of information was pending before the Council on 17th November, 2006 and accordingly the unamended provisions will apply. 38. In view of the aforesaid reasoning, the present appeal is allowed and it is held that the procedure prescribed by the unamended C.A. Act, 1949 i.e.Sections 21, 22 and 22A would be applicable to pending proceedings in information case and not the procedure prescribed after LPA 396/2010 Page 36 of 37 the amendment made by the Chartered Accountants (Amendment) Act, 2006. As already held above, the appellants have not challenged the other findings and directions given by the learned single Judge. The appeal is accordingly disposed of.” (xiv) Nirma Limited Nima House Ashram Road, Ahmedabad, Gujarat v. Sanit Gobain Glass India Limited, Sriperumbudur, Tamil Nadu and Others, MANU/TN/0670/2012 : LNIND 2012 MAD 1669: “3.1. The said writ petition was contested by Alkali Manufacturers Association of India to the effect that the writ petition is premature, since the impugned notification is only a preliminary recommendation and there is no determination made so far by the Government of India; that the Designated Authority before coming to the preliminary conclusion has given sufficient opportunity to all the interested parties and in fact written submissions have been made; that such recommendation has to be considered by the Central Government and the affected parties can always raise their objections before the Government, which alone can impose the duty; and that under Section 9C of the Act, an appeal lies to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) against the final levy of duty. 3.2. 3.2. It was the case of Alkali Manufacturers Association of India that when the preliminary investigation has shown that material injury to the domestic industry has been caused due to dumped imports of the subject goods from the subject countries, any delay in imposition of duties will defeat the very purpose of preliminary investigation; that even after the interim duties are imposed eventually if the Designated Authority comes to a conclusion that the duties are not liable to be imposed, the writ petitioner is entitled to refund as per the express provisions of the Act; and that the finding of the preliminary investigation is not binding on the Government and is only preliminary in nature and, therefore, the writ petition is not maintainable. 19. Regarding the first issue in respect of the maintainability aspect of the writ petition in W.P. No. 23515 of 2011, the learned Judge in the impugned order has held that inasmuch as the very jurisdiction of the Designated Authority in initiating proceedings is challenged in the writ petition, it cannot be held that the writ petition is not maintainable. 20. Even though it has been the contention of the members of Alkali Manufacturers Association of India that at the stage of preliminary finding there is no finality and unless and until the Government of India ultimately passes order imposing the levy and thereafter gives final finding a writ petition is not maintainable, and there is an appellate remedy available, as correctly held by the learned Judge, mere existence of an alternative remedy cannot be said to be an absolute bar for the High Court for entertaining a writ petition under Article 226 of the Constitution of India. In the decision rendered by the Supreme Court in Union of India v. Tantia Construction (P) Ltd., (2011) 5 SCC 697 , the Supreme Court after analyzing the various decisions about the maintainability of the writ petition in the presence of an alternative remedy, has held that alternative remedy is a rule of discretion and not a matter of compulsion. The operative portion of the said decision is as follows: “33. The operative portion of the said decision is as follows: “33. Apart from the above, even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. 34. We endorse the view of the High Court that notwithstanding the provisions relating to the arbitration clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the writ petition filed on behalf of the respondent Company. We, therefore, see no reason to interfere with the views expressed by the High Court on the maintainability of the writ petition and also on its merits.” 21. Moreover, against the preliminary finding it cannot be said that there is an effective remedy available as per Section 9C of the Act. The power of imposing anti-dumping duty on dumped articles emanates from Section 9A of the Act which contemplates that when any article is exported by an exporter or producer to India from any country at less than its normal value, on such importation in India, the Government of India is entitled by notification to impose anti-dumping duty not exceeding the margin of dumping in relation to the article.” (xv) Jitender @ Kalle v. State, MANU/DE/5327/2012 : LNIND 2012 DEL 1479: “41. We now come to the decisions referred to by the learned counsel for the State. The first of those decisions is that of the Madras High Court in the case of In Re: Sankara Pillai (supra). In that case the magistrate who had recorded the evidence and had written his judgment had left before it was delivered. Another magistrate who was appointed in his place read out the predecessor’s judgment and sentence and signed and dated it in open court. In that case the magistrate who had recorded the evidence and had written his judgment had left before it was delivered. Another magistrate who was appointed in his place read out the predecessor’s judgment and sentence and signed and dated it in open court. It was contended that this was illegal inasmuch as the judgment and sentence CRL.A Nos. 666 & 667/2010 Page 26 of 32 were not delivered in open court by the magistrate who heard the case and wrote the judgment and a re-trial was sought. The Madras High Court, however, repelled such a contention by holding that it was not necessary that the presiding officer of the court who wrote the judgment should be the same person as the presiding officer who was required to date and sign and pronounce it in open court. It was also observed that even if this was an irregularity it did not prejudice the accused. With regard to these observations we may, first of all, point out that the case was clearly distinguishable from the appeals at hand. The judgment written by the predecessor magistrate had been signed and dated in open court by the successor magistrate. In other words the successor magistrate had adopted the predecessor’s written judgment as his own. This is not the case in the appeals before. The successor judge had not adopted the predecessor’s written judgments as her own. In fact, she did not even sign and date the same. The decision of the Madras High Court in the case of In Re: Sankara Pillai (supra) is also distinguishable inasmuch as the decision was rendered in the backdrop of the understanding that even if there was an irregularity it did not prejudice the accused. The question of prejudice does not at all arise in the present appeals inasmuch as the whole argument is that it is not an irregularity but an illegality. 42. Gian Singh Munsha Singh (supra) which is a decision of a learned single Judge is of course not binding on us but the learned counsel for the State had adopted the reasoning in that judgment as her own. We, however, do not agree with the same. 42. Gian Singh Munsha Singh (supra) which is a decision of a learned single Judge is of course not binding on us but the learned counsel for the State had adopted the reasoning in that judgment as her own. We, however, do not agree with the same. The learned Single Judge in Gian Singh Munsha Singh (supra) had sought to distinguish between the words ‘pronounced’ as used in sub-section (1) of section 353 of the 1973 Code and the word ‘delivered’ as used in sub section (3) of section 366 of the 1898 Code. The said provision is similar to section 353 of the 1973 Code with which we have already dealt elaborately. We have already indicated that delivery of a judgment under clause (a) of sub-section (1) of section 353 of the 1973 Code is one of the modes of pronouncement. Thus, while all deliveries would be pronouncements, the reverse is not necessarily true. And, in any event, the decision in Gian Singh Munsha Singh(supra) was one which pertained to a situation where a judgment could not be delivered on account of absence of the accused, that is, not the case in the present appeal. Therefore, the said decision would be of no help to the learned counsel for the State. 43. Insofar as the Supreme Court decision in the case of Surendra Singh (supra) is concerned we have already discussed the same at length above. We do not see as to how that decision comes to the aid of the case set up on behalf of the State. On the contrary it is a decision which supports the propositions of the learned counsel for the appellant. 44. We then come to the decision of a Division Bench of the High Court of the Madhya Pradesh, Indore Bench, in the case of Parasram Shivlal Tara Sewania (supra). In that case the question of legality of a judgment which was written by the trying magistrate but was pronounced by the successor in office, was in issue. That decision sought to make a distinction between a judicial act and a mechanical or ministerial act. The observations of the Division Bench in this regard are as under: “3. The law has provided that the judgment should be written by the Magistrate who has heard the case. That decision sought to make a distinction between a judicial act and a mechanical or ministerial act. The observations of the Division Bench in this regard are as under: “3. The law has provided that the judgment should be written by the Magistrate who has heard the case. It might happen that a magistrate is transferred or for some other reasons is unable to complete the hearing; in that event, the successor takes over the case. He might either, complete the hearing beginning at the stage at which his predecessor has left it, or acting suo motu or on the prayer of the accused, hear it de novo. This is well known and involves no uncertainty or confusion. Since magistrates are constantly on the move, it does happen that one who has completed the hearing of a case, has to leave before he pronounces judgment. If he does not write the judgment at all, there is nothing to be done about it and the case has to be heard again, and then disposed of. His successor cannot in a criminal case, write a judgment on the materials wholly and solely recorded by his predecessor. But often it happens that the outgoing magistrate has got just time to write the judgment but is not able to stay on to pronounce it. It may be, one or two holidays intervene or he has to leave so late in the day that by then the Court time is over. These are unusual happenings and certainly magistrates should do their best to avoid them. But when they do occur, there is nothing left except for the magistrate, if he is unable to stay on, at least to write the judgment and leave it with his successor, who in his turn, would pronounce it in Court. In such a case, the judicial part of the work, namely, the weighing of the pros and cons of the case and arriving at a decision as to the guilt or otherwise of the accused, has been done by the very magistrate who has heard the case. But the mechanical part of the work, namely, of taking the paper and reading out in the Court room before the accused has been done by the successor. I do not see how the merits of the judicial decision can at all be affected by the mechanical work of reading out. But the mechanical part of the work, namely, of taking the paper and reading out in the Court room before the accused has been done by the successor. I do not see how the merits of the judicial decision can at all be affected by the mechanical work of reading out. The notion that there is something possibly illegal in a successor doing certain things in connection with a case heard and decided by a magistrate, comes out of the failure to distinguish between judicial acts which certainly cannot be delegated and must be done by the very magistrate who hears the case, and ministerial or mechanical acts which could be done by him or his successor, though, naturally, it would be more convenient if he did it himself.” These observations to our mind clearly run counter to the observations of the Supreme Court in Surendra Singh (supra) where the pronouncement of a judgment has been held to be a judicial act. Therefore, the said decision would also be of no use to the learned counsel for the State. 45. Lastly, the learned counsel for the State has placed reliance on a Single Judge decision of the High Court of Kerala in In Re: Reference by District and Sessions Judge (supra). The view taken therein and adopted by the learned counsel for the State was that there was no legal provision which says that a judgment or an order in a criminal case prepared and signed by a judicial officer could be pronounced in court only by him. In our view, such a conclusion also runs counter to the observations of the Supreme Court in Surendra Singh (supra). In any event we do not agree with the conclusion. Section 326 of the 1973 Code only enables a successor judge or magistrate to act on the evidence recorded by the predecessor judge or magistrate and then proceed to pronounce the judgment. It does not empower the successor magistrate to merely ‘announce’ a ‘judgment’ written by the predecessor judge or magistrate. 46. We are now left to deal with ‘note 2’ of the High Court order dated 08.02.2010. While it is true that the note sought to enable the judicial officers to pronounce judgments/orders within a period of 2/3 weeks, notwithstanding, the posting/transfer, that was merely an administrative order and cannot over ride the statutory provisions of the 1973 Code. 46. We are now left to deal with ‘note 2’ of the High Court order dated 08.02.2010. While it is true that the note sought to enable the judicial officers to pronounce judgments/orders within a period of 2/3 weeks, notwithstanding, the posting/transfer, that was merely an administrative order and cannot over ride the statutory provisions of the 1973 Code. The High Court could not permit something by way of an administrative order which was not permissible under the 1973 Code. The mere fact that there is a note such as note 2 in the order dated 08.02.2010 would not enable us to detract from the statutory provisions which do not permit the pronouncement of a judgment by a successor judge which have been written and signed by the predecessor and that, too, after the predecessor ceased to have jurisdiction over the said case. It is important to remember that Mr Bharat Parasar ceased to exercise jurisdiction as an Additional Sessions Judge of North West District with effect from 11.02.2010. Consequently, he could do nothing in respect of the cases of that district after 11.02.2010. It is not even as if he had written his judgments prior to 11.02.2010 at which point of time he did have jurisdiction. He wrote the judgments and singed them on 02.03.2010 and 06.03.2010 much after he ceased to have jurisdiction in respect of the said matters. The judgments were not even pronounced in the manner indicated in Section 353 of the 1973 Code. They were merely “announced”, whatever that expression may mean. As such, they were not judgments in law. 47. Consequently, the so-called judgments dated 02.03.2010 and 06.03.2010 which were ‘announced’ on 04.03.2010 and 12.03.2010 by the successor judge are invalid and are set aside. 48. Resultantly, the orders on point of sentence in both the cases are also without jurisdiction and are hereby set aside. The matters are remitted to the concerned Additional Sessions Judge having jurisdiction for concluding the trial and hearing arguments and thereafter pronouncing judgments thereon. 49. We make it clear that we have not examined either the evidence or the arguments based thereon. The matters are remitted to the concerned Additional Sessions Judge having jurisdiction for concluding the trial and hearing arguments and thereafter pronouncing judgments thereon. 49. We make it clear that we have not examined either the evidence or the arguments based thereon. This decision has been rendered solely on the preliminary issue of the validity of the said so-called judgments and orders on point of sentence in the circumstances indicated above.” (xvi) Grasim Industries Ltd. v. Competition Commission of India, MANU/DE/4658/2013 : LNIND 2013 DEL 1717: “5.....The expression “dominant position” has been defined in Explanation to sub section (2) of section 4, whereas sub section (2) of the said section treats certain activities specified therein to be an abuse of dominant position. 6.Section 19 of the Act empowers the Commission to inquire into the allegations of contravention of the provisions of sub section (1) of Section 3 of the sub section (1) of section 4, inter alia, on receipt of any information. Sub section (1) of Section 26 provides that if on receipt of a reference or on its knowledge or information received under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director W.P.(C) No. 4159 of 2013 Page 7 of 26 General to cause an investigation to be made into the matter. The Act contains no provision empowering the Director General to investigate any contravention of sub section (1) of section 3 or sub section (1) of section 4 without a direction of the Commission in terms of sub section (1) of section 26. It would also be seen that once the Commission forms an opinion that there exists a prima facie case of contravention, it is duty bound to direct investigation by the Director General. If, however, the Commission is of the opinion that there exists no prima facie case, it is required to close the matter forthwith, as provided in sub section (2) of section 26. Thus, formation of an opinion that prima facie there is a contravention of the provisions of the Act, is a sine qua non, for investigation by the Director General. In other words, the investigation by the Director General depends upon the nature of the opinion formed by the Commission, on consideration of reference or information received by it. 7..... Thus, formation of an opinion that prima facie there is a contravention of the provisions of the Act, is a sine qua non, for investigation by the Director General. In other words, the investigation by the Director General depends upon the nature of the opinion formed by the Commission, on consideration of reference or information received by it. 7..... Thus, under the scheme of the Act, the recommendations made by the Director General do not bind the Commission which is entitled to take a contrary view and proceed accordingly. During the course of arguments, both the parties, when called upon to state their respective stand, as regards the power of the Commission, with respect to the report of the Director General, took a common stand that irrespective of whether the Director General reports a contravention of the provisions of the Act or reports that no contravention of the Act was found during investigation by him, the said report does not bind the Commission, and after complying with the procedure prescribed in sub- section (4) and wherever the Director General reports no contravention, then under sub-section (5) of Section 26, the Commission is entitled to take its own view in the matter, and proceed accordingly. This would mean that if the Director General reports no contravention of the provisions of the Act, the Commission has three options available to it. The first option available to the Commission is to close the matter forthwith, the second option is to direct W.P.(C) No. 4159 of 2013 Page 9 of 26 further investigation by the Director General or further inquiry or the Commission itself holding further inquiry in the matter. The third option available to the Commission in case it does not agree with the Director General and does not feel necessity of any further investigation or inquiry, is to pass appropriate order, as provided in Section 27 of the Act. If the Director General reports contravention of the provisions of the Act, the Commission has three options in the matter. It may close the proceedings forthwith if in its opinion, no contravention of the provisions of the Act is made out and no further inquiry was called. If the Director General reports contravention of the provisions of the Act, the Commission has three options in the matter. It may close the proceedings forthwith if in its opinion, no contravention of the provisions of the Act is made out and no further inquiry was called. The second option available to the Commission, in such a case, is to hold further inquiry into the contravention reported by the Director General and the third option available to the Commission is to accept the report without directing any further inquiry and proceed to pass orders in accordance with the provisions of Section 27 of the Act.” 12. The learned counsel for the respondents has relied upon Competition Commission of India v. Steel Authority of India (2010) 10 SCC 744, Kingfisher Airlines Limited v. Competition Commission of India, W.P.(C) No. 1785 of 2009 of Bombay High Court, South Asia LPG Company Private Limited v. Competition Commission of India W.P. (C) No. 4602/2013 of High Court of Delhi, Pratibha Finvest P. Ltd. v. ITO Ward 14(3), New Delhi, W.P.(C) No. 7538/2012 of High Court of Delhi. In Kingfisher Airlines Limited v. Competition Commission of India (supra), Bombay High Court was examining the notices issued by the Commission in respect of an alliance W.P.(C) No. 4159 of 2013 Page 16 of 26 between Kingfisher Airlines Limited and Jet Airways (India) Ltd. On 17.10.2008, MRTP Commission ordered an investigation into the said agreement. On 29.10.2008, the Director General issued a notice to Kingfisher Airlines Limited calling for certain information under Section 11 of the MRTP Act. This was followed by exchange of letters between the Director General of Investigation and the petitioner. Respondent No. 3 in the petition, referring to newspaper reports in respect of the market shares and the strength of fleet etc. of the aforesaid airlines provided certain information to the Commission which formed an opinion that there existed a prima facie case and referred the matter to the Director General for investigation. Being aggrieved, the petitioners filed the aforesaid writ petition contending inter alia that since MRTP Commission was already seized of the matter, the cognizance taken by the Commission was without jurisdiction. This was also the contention of the petitioners that Section 3 and 4 of the Act cannot have retrospective effect, since the Act contained penal provisions. Being aggrieved, the petitioners filed the aforesaid writ petition contending inter alia that since MRTP Commission was already seized of the matter, the cognizance taken by the Commission was without jurisdiction. This was also the contention of the petitioners that Section 3 and 4 of the Act cannot have retrospective effect, since the Act contained penal provisions. CCI, however, contended that the petition was premature since only an enquiry had been ordered and no action had been taken against the petitioners. It was also submitted by the Commission that a final order can be passed by it only after the conclusion of the investigation and giving opportunities to the petitioners to present their case. Rejecting the writ petition, the High Court, inter alia, observed as under: “22. To us, it is clear from Section 19 that the Commission can act upon receipt of information and on a reference made to it by the Central or State Government or on its own motion. It is, therefore, clear that there has to be some information before the Commission about the alleged breaches of Sections 3 and 4. If the Commission receives an information, it is supposed under Section 19 to enquire into the complaint received. Under the Code of Criminal Procedure, a Police Officer is supposed to look into the W.P.(C) No. 4159 of 2013 Page 17 of 26 complaint and decide whether the information discloses a cognizable offence or not. If, upon reading the complaint, he finds that it does disclose a cognizable offence, he is bound to register the First Information Report and investigate into it. The word “investigation” has been defined in the Criminal Procedure Code as follows: “Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.” 23. The investigation is only for the purpose of collection of evidence. The investigation starts only after there is a prima facie proof of commission of cognizable offence. The position of this Act appears to be almost identical. Section 19 clarifies as to on what count enquiry should be made and in what manner. For instance, subsection 6 says as to which factors need to be taken into consideration while determining the relevant geographic market. The enquiry is supposed to proceed bearing in mind those factors. The position of this Act appears to be almost identical. Section 19 clarifies as to on what count enquiry should be made and in what manner. For instance, subsection 6 says as to which factors need to be taken into consideration while determining the relevant geographic market. The enquiry is supposed to proceed bearing in mind those factors. If Section 26 is read with Section 19, it would be clear that the information received under Section 19 is to be placed before the Commission; and if the Commission finds a prima facie case, it can direct the investigation; and it has an option to drop the matter if there is no prima facie case. It is, therefore, not necessary that the investigation would be ordered in each and every case. Therefore, the information that is received can be treated as if it is an F.I.R. It will have to be found out by the Commission from that information whether there is any material in the said information which requires them to take cognizance of the complaint and then order an investigation. The investigation, the purpose of which, would be to collect evidence and would disclose if the group abused its dominant position. Therefore, it is clear that the investigation would reveal if there is sufficient evidence available to take further action. It is after the report of the Director General that the Commission proceeds to pass order W.P.(C) No. 4159 of 2013 Page 18 of 26 under Section 26(6) either to close the matter forthwith or under clause (7) may order further investigation. If the report discloses any breach, the Commission is supposed to enquire into such breaches. This enquiry report is again considered under Section 27 and then an action follows. It is, therefore, clear to us that the question as to whether there is a breach of provisions of Sections 3 and 4 is finally considered under Sections 19, 26 and 27(8). Sections 19 and 26(1) speak of existence of prima facie case only. Therefore, at the prima facie stage, it is never concluded whether there is breach or otherwise. Therefore, at preliminary stage, it is only to be seen if there is a reason to believe that there is a breach of Sections 3 and 4. Sections 19 and 26(1) speak of existence of prima facie case only. Therefore, at the prima facie stage, it is never concluded whether there is breach or otherwise. Therefore, at preliminary stage, it is only to be seen if there is a reason to believe that there is a breach of Sections 3 and 4. The law is well settled that the court should not stifle the investigation at all, except for compelling reason or when F.I.R. does not disclose any offence at all. If the analogy is to be applied here it cannot be said that the information given by respondent no. 3 does not disclose any beach nor can it be said that it is a case of lack of inherent jurisdiction to the Commission to investigate. It has a power to enquire and investigate into every complaint received under the Act, as is clear from the above provision. The Supreme Court in a decision 2007 (13) SCC 165 (Sanaparededdy Maheedhar Seshagiri and Another v. State of Andhra Pradesh and Another) makes following observations- “The High Court should be extremely cautious and slow to interfere with the investigation and/or prosecution except when it is convinced beyond any manner of doubt that FIR does not disclose commission of any offence or that the allegations contained in FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court. In dealing with such cases, the High Court has to bear in mind that the judicial intervention at the threshold of the legal process initiated against a person accused W.P.(C) No. 4159 of 2013 Page 19 of 26 of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing FIR or complaint or restraining the competent authority from investigating the allegations contained in FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. Therefore, while deciding a petition filed for quashing FIR or complaint or restraining the competent authority from investigating the allegations contained in FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in FIR or complaint disclose commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations imply because the petitioner alleges malus animus against the author of FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same.” Although the decision is basically on criminal law, the ratio can be squarely applied. If the said ratio is to be applied, the enquiry/investigation cannot be stifled at all. We have not made reference to other decisions cited, since we find that the decisions referred to in this judgment were enough to arrive at a conclusion. We find that it was not necessary for the Commission to first find out the relevant geographic market, relevant products market or relevant market. Such things can be found or concluded upon investigation and not necessarily before that. 24. In the circumstances, we find that no writ as sought can be issued and petition should be dismissed. We, therefore, dismiss the petition with no order as to costs. Rule discharged.” In my view, an investigation by the Director General, pursuant to the Commission forming an opinion that prima facie there exists a contravention of the provisions of the Act and directing investigation by the Director General, cannot be treated at par with the investigation by a police officer into a cognizable offence in exercise of the powers conferred upon him by the Code of Criminal Procedure, 1973. Section 156 of the Code of Criminal Procedure empowers any officer in charge of a police station to investigate any cognizable case, without the order of a Magistrate, wherever a cognizable offence is committed within the local area of jurisdiction. As regards non- cognizable offences, sub-section (2) of Section 155 of the Code of Criminal Procedure mandates that no police officer shall investigate a non-cognizable case, without the order of the Magistrate having power to try such case or commit the case for trial. On the other hand, the Competition Act gives no power, to carry out suo motu investigation to the Director General, irrespective of whether it be the contravention of the provisions of Section 3 or of Section 4 of the Act. Moreover, the Code of Criminal Procedure does not envisage application of the rule of audi alteram partem during the course of investigation by a police officer. There is no provision in the Code of Criminal Procedure for an accused to apply to the investigating officer to permit him to examine his witnesses. Under the scheme of the Code, a police officer investigating a criminal case cannot allow cross-examination of witness, during the course of investigation conducted by him. On the other hand, clause (4) of the Regulation 41 expressly permits the Director General to record evidence and the power conferred upon him includes the power to record evidence of the enterprise against whom the information is being W.P.(C) No. 4159 of 2013 Page 21 of 26 investigated by him. Unlike the provisions of the Code of Criminal Procedure, clause (5) of Regulation 41 empowers the Director General to allow cross-examination of a witness by the opposite party during the course of investigation conducted by him. Therefore, the scheme of investigation by a police officer, in terms of the provisions contained in the Code of Criminal Procedure and investigation by the Director General in terms of the Competition Act, are altogether different. Therefore, the scheme of investigation by a police officer, in terms of the provisions contained in the Code of Criminal Procedure and investigation by the Director General in terms of the Competition Act, are altogether different. In any case, nothing prevents the Commission from treating the evidence collected by the Director General as information under Section 19 of the Act and if on its consideration, the Commission forms an opinion that there exists a prima facie case showing contravention of the provisions of Section 4 of the Act by the petitioner, it would be well within the power of the Commission to direct the Director General to cause an investigation to be made into the said information. If a police officer, while carrying out investigation into a cognizable offence, receives information or evidence relating to Commission of yet another offence, whether that be cognizable or non-cognizable, he is competent to carry out investigation into the said offence as well, the reason being that investigation in a cognizable case can be carried out without the order of the Magistrate and as provided in sub-section (4) of Section 155, where the case relates to two or more offences, of which at least one is cognizable, the case shall be deemed to be a cognizable one, notwithstanding that the other offences are non- cognizable. The Director General, on the other hand, does not have any suo motu power of investigation and, therefore, cannot be treated at par with a police officer, investigating a cognizable case.” (xvii) Competition Appellate Tribunal Appeal No. 91 of 2012 with I.A. Nos. 253 to 257 and 269 of 2012 (Scgitt Glass India Pvt. Ltd., (Schott Glass India), Mumbai v. Competition Commission of India, New Delhi and Another); “72......As regards the contention relating to the provisions of Criminal Procedure Code, we are not impressed at all, as the two jurisdictions namely competition jurisdiction and criminal jurisdiction are entirely different from each other. There would, therefore, be no point in comparing the two. He has also relied on a decision in Kingfisher Airlines v. Competition Commission of India (W.P. No. 1785 of 2009), wherein certain observations were relied upon by him. Very strangely a plea was also raised in the submissions to the effect that the bonafides of the Kapoor Glass should not ipso facto render the entire proceedings void ab initio. He has also relied on a decision in Kingfisher Airlines v. Competition Commission of India (W.P. No. 1785 of 2009), wherein certain observations were relied upon by him. Very strangely a plea was also raised in the submissions to the effect that the bonafides of the Kapoor Glass should not ipso facto render the entire proceedings void ab initio. In short, the learned counsel suggested that even if Kapoor Glass lacked the bonafide, the proceedings could still have gone. There can be no dispute about this proposition, because in fact the proceedings have gone on a full fledged investigation and not only that, the CCI has considered the matter. We do not propose to hold that merely because there was a lack of bonafide on the part of the Kapoor Glass, the whole proceedings be void ab initio. Therefore, raising of this plea was unnecessary. However, it was further contended that merely because an information was filed by a person, who has allegedly infringed a property trademark, that would not be ipso facto entail denial of any rights that may accrue to him in accordance with the due process of law.” 25. Mr. A.R. Karunakaran, learned counsel appearing for the petitioner, namely, Hyundai Motors in W.P. No. 31808 and 31809 of 2013, would contend that the informant had not made any particular mention against the petitioner as regards the allegations; there cannot be any widening of investigation against the other vehicle manufacturers and, therefore, the impugned proceedings are non est in law and liable to be set aside. He would cite the following authorities: (i) Raja Narayanlal Bansilal v. Maneck Phiroz Mistry and Another, AIR 1961 SC 29 : LNIND 1960 SC 186 : (1961) 1 MLJ 73 : (1961) 1 MLJ (Crl) 208: “24. Thus we go back to the question which we have already posed: was the appellant accused of any offence at the time when the impugned notices were served on him? In answering this question in the light of the tests to which we have just referred it will be necessary to determine the scope and nature of the enquiry which the inspector undertakes under S.240; for, unless it is shown that an accusation of a crime can be made in such an enquiry, the appellant’s plea under Art.20(3) cannot succeed. In answering this question in the light of the tests to which we have just referred it will be necessary to determine the scope and nature of the enquiry which the inspector undertakes under S.240; for, unless it is shown that an accusation of a crime can be made in such an enquiry, the appellant’s plea under Art.20(3) cannot succeed. Section 240 shows that the enquiry which the inspector undertakes is in substance an enquiry into the affairs of the company concerned. Certain documents are required to be furnished by a company to the registrar under the provisions of the new Act. If, on examining the said documents, the Registrar thinks it necessary to call for information or explanation he is empowered to take the necessary action under S.234(1). Similarly, under S.234(7) if it is represented to the registrar on materials placed before him by any contributory or creditor or any other person interested that the business of the company is carried on in the manner specified in the said sub-section the Registrar proceeds to make the enquiry. Thus the scope of the enquiry contemplated by S.234 is clear; wherever the Registrar has reason to believe that the affairs of the company are not properly carried on he is empowered to make an enquiry into the said affairs. Similarly under S.235 inspectors are appointed to investigate the affairs of any company and report thereon. The investigation carried on by the inspectors is no more than the work of a fact-finding commission. It is true that as a result of the investigation made by the inspectors it may be discovered that the affairs of the company disclose not only irregularities and malpractices but also commission of offences and in such a case the report would specify the relevant particulars prescribed by the circular in that behalf. If, after receiving the report, the Central Government is satisfied that any person is guilty of an offence for which he is criminally liable, it may, after taking legal advice, institute criminal proceedings against the offending person under S.242(1); but the fact that a prosecution may ultimately be launched against the alleged offender will not retrospectively change the complexion or character of the proceedings held by the inspector when he makes the investigation. Have irregularities been committed in managing the affairs of the company; if yes, what is the nature of the irregularities? Have irregularities been committed in managing the affairs of the company; if yes, what is the nature of the irregularities? Do they amount to the commission of an offence punishable under the criminal law? If they do who is liable for the said offence? These and such other questions fall within the purview of the inspector’s investigation. The scheme of the relevant sections is that the investigation begins broadly with a view to examine the management of the affairs of the company to findout whether any irregularities have been committed or not. In such a case there is no accusation, either formal or otherwise, against any specified individual; there may be a general allegation that the affairs are irregularly, improperly or illegally managed; but who would be responsible for the affairs which are reported to be irregularly managed is a matter which would be determined at the end of the enquiry. At the commencement of the enquiry and indeed throughout its proceedings there is no accused person, no accuser and no accusation against anyone that he has committed an offence. In our opinion a general enquiry and investigation into the affairs of the company thus contemplated cannot be regarded as an investigation which starts with an accusation contemplated in Art.20(3) of the Constitution. In this connection, it is necessary to remember that the relevant sections of the Act appear in Part VI which generally deals with management and administration of the companies. (ii) Grasim Industries Ltd. v. Competition Commission of India (supra): “9. The scheme of the Act thus, does not permit investigation by Director General into any information which was not considered by the Commission, while forming opinion under sub-section (1) of Section 26 of the Act. The formation of opinion by the Commission and direction to cause an investigation to be made by the Director General being a pre-requisite condition for initiation of investigation, the Director General would have no power to undertake investigation in respect of the complaint which the Commission did not consider while forming an opinion and directing investigation by the Director General. If the Director General investigates an information which the Commission did not consider in the first instance, while forming opinion with respect to existence of a prima facie case, such an act on his part shall be ultra vires his power under the Act and, therefore, clearly illegal. If the Director General investigates an information which the Commission did not consider in the first instance, while forming opinion with respect to existence of a prima facie case, such an act on his part shall be ultra vires his power under the Act and, therefore, clearly illegal. It is settled legal proposition that when the provisions of a Statute requires an act to be done in a particular manner, such an act can be done only in the prescribed manner and not otherwise. Since the Act requires the Director General to investigate only such information which was considered by the Commission, while forming its opinion with respect to existence of a prima facie case, it cannot, of its own carry out investigation based upon an information which was not available to the Commission. It would be appropriate to note here that though MRTP Act, 1969 empowered the Director General to exercise suo motu power of investigation, the said power has been expressly denied to him under the Competition Act. In clause (5) of the State of Objects and Reasons for enacting the Competition Act, it is clearly stated that “the Director General would be able to act only if so directed by the Commission, but will not have any suo motu power for initiating investigation”. If the Director General is directed by the Commission to cause an investigation to be made into information ‘X’ and he, besides investigating information ‘X’ also investigates information ‘Y’, which was not considered by the Commission, while directing investigation by him, that would amount to conferring suo motu, power of investigation upon the Director General which would clearly contravene the scheme of the Act, as far as investigation into complaint ‘Y’ is concerned..... 10. It is quite understandable if the Commission, on consideration of an information forms an opinion that there exists a prima facie contravention of Section 3 of the Act and the Director General, while investigating the said information, reports contravention of Section 4 or Section 3 as well as Section 4 of the Act. Such a report, in my opinion, will not be contrary to the provisions of the Act, since the information which is investigated by the Director General was considered by the Commission, before it formed an opinion in terms of sub-section (1) of Section 26 of the Act. Such a report, in my opinion, will not be contrary to the provisions of the Act, since the information which is investigated by the Director General was considered by the Commission, before it formed an opinion in terms of sub-section (1) of Section 26 of the Act. If, however, the investigation by the Director General is based upon an altogether different information which the Commission did not consider, while forming its opinion with respect to existence of a prima facie case, his action would be contrary to the scheme of the Act and the powers conferred upon him. As noted earlier, clause (4) of Regulation 18 requires the Director General to give report containing his findings on each of the allegations made in the information or the reference as the case may be. This is yet another indicator that the report of the Director General is to be confined to the allegations made in the in the information or the reference received by the Commission and he is not competent to travel outside the said information or reference.” (iii) Competition Commission of India, New Delhi Case No. 105 of 2013 (Bull Machines Pvt. Ltd. v. JCB India Ltd. and Another) decided on 11.03.2014; “14. The entire case of abuse as laid and made by the Informant is predicated upon the alleged bad faith litigation filed by JCB before the Hon’ble High Court of Delhi. It is the case of the Informant that the bad faith litigation initiated by JCB against it alleging infringement of its design rights was totally false and that the said legal proceedings before the Hon’ble High Court of Delhi were only initiated to harass it and prevent the launch of ‘Bull Smart’, which in effect would have competed with backhoe loaders of JCB in the relevant market. Furthermore, it is the case of the Informant that the injunction was obtained on the basis that the Informant had allegedly infringed the registered designs and copyrights of JCB while manufacturing ‘Bull Smart’, which designs/copyrights themselves were obtained fraudulently. 15. The Commission observes that the predation through abuse of judicial processes presents an increasingly threat to competition, particularly due to its relatively low anti-trust visibility. 16. 15. The Commission observes that the predation through abuse of judicial processes presents an increasingly threat to competition, particularly due to its relatively low anti-trust visibility. 16. In view of the allegations projected in the information and as detailed hereinabove, the Commission is of prima facie opinion that JCB by abusing their dominant position in the relevant market sought to stifle competition in the relevant market by denying market access and foreclosing entry of ‘Bull Smart’ in contravention of the provisions of Section 4 of the Act. 17. Accordingly, the Commission directs the Director General (DG) to cause an investigation into the matter and to complete the investigation within a period of 60 days from receipt of this order.” 26. Rebutting the above contentions, Mr. Mohan Parasaran, learned Solicitor General of India, appearing for Mr. P. Mahaadevan, learned Senior Central Government Standing Counsel for the respondent/Competition Commission of India, while primarily assailing the maintainability of the writ petitions, would submit that the Commission has directed the parties to appear for oral hearing either personally or through authorized representative of the petitioner on 18.10.2012. He would consistently submit that the CCI has strictly adhered to the principles of natural justice and given proper oral hearing to the parties concerned and no prejudice was caused to the petitioners. With regard to the issue regarding the Quorum, learned Solicitor General would submit that the concern of the petitioners has already been addressed by the Commission vide its order dated 24.07.2013 that only those Members of the Commission, who heard the matter and were present at the time of arguments, shall decide the matter in question. He would also submit that there has not been any widening of investigation as sought to be canvassed by the petitioners, since the First Information itself seeks CCI’s intervention against the three named vehicle manufacturers and “other vehicle manufacturers”. Contending that the main purpose of filing the Writ Petitions is to delay and defeat the duly launched inquiry against the alleged anti-competitive practices in the case, learned Solicitor General sought for dismissal of all the Writ Petitions. He would cite the following decisions: (i) Competition Commission of India v. Steel Authority of India (supra); “37. Contending that the main purpose of filing the Writ Petitions is to delay and defeat the duly launched inquiry against the alleged anti-competitive practices in the case, learned Solicitor General sought for dismissal of all the Writ Petitions. He would cite the following decisions: (i) Competition Commission of India v. Steel Authority of India (supra); “37. As already noticed, in exercise of its powers, the Commission is expected to form its opinion as to the existence of a prima facie case for contravention of certain provisions of the Act and then pass a direction to the Director General to cause an investigation into the matter. These proceedings are initiated by the intimation or reference received by the Commission in any of the manners specified under Section 19 of the Act. At the very threshold, the Commission is to exercise its powers in passing the direction for investigation; or where it finds that there exists no prima facie case justifying passing of such a direction to the Director General, it can close the matter and/or pass such orders as it may deem fit and proper. In other words, the order passed by the Commission under Section 26(2) is a final order as it puts an end to the proceedings initiated upon receiving the information in one of the specified modes. This order has been specifically made appealable under Section 53A of the Act. 38. In contradistinction, the direction under Section 26(1) after formation of a prima facie opinion is a direction simpliciter to cause an investigation into the matter. Issuance of such a direction, at the face of it, is an administrative direction to one of its own wings departmentally and is without entering upon any adjudicatory process. It does not effectively determine any right or obligation of the parties to the lis. Closure of the case causes determination of rights and affects a party, i.e. the informant; resultantly, the said party has a right to appeal against such closure of case under Section 26(2) of the Act. On the other hand, mere direction for investigation to one of the wings of the Commission is akin to a departmental proceeding which does not entail civil consequences for any person, particularly, in light of the strict confidentiality that is expected to be maintained by the Commission in terms of Section 57 of the Act and Regulation 35 of the Regulations. 39. 39. Wherever, in the course of the proceedings before the Commission, the Commission passes a direction or interim order which is at the preliminary stage and of preparatory nature without recording findings which will bind the parties and where such order will only pave the way for final decision, it would not make that direction as an order or decision which affects the rights of the parties and therefore, is not appealable. 94. The Tribunal, in the impugned judgment, has taken the view that there is a requirement to record reasons which can be express, or, in any case, followed by necessary implication and therefore, the authority is required to record reasons for coming to the conclusion. The proposition of law whether an administrative or quasi judicial body, particularly judicial courts, should record reasons in support of their decisions or orders is no more res integra and has been settled by a recent judgment of this Court in the case of Assistant Commissioner, C.T.D.W.C. v. Shukla & Brothers JT 2010 (4) SC 35, wherein this Court was primarily concerned with the High Court dismissing the appeals without recording any reasons. The Court also examined the practice and requirement of providing reasons for conclusions, orders and directions given by the quasi-judicial and administrative bodies. 97. The above reasoning and the principles enunciated, which are consistent with the settled canons of law, we would adopt even in this case. In the backdrop of these determinants, we may refer to the provisions of the Act. Section 26, under its different sub-sections, requires the Commission to issue various directions, take decisions and pass orders, some of which are even appealable before the Tribunal. Even if it is a direction under any of the provisions and not a decision, conclusion or order passed on merits by the Commission, it is expected that the same would be supported by some reasoning. At the stage of forming a prima facie view, as required under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General. Such view should be recorded with reference to the information furnished to the Commission. Such view should be recorded with reference to the information furnished to the Commission. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the Commission under the various provisions of the Act, as afore-referred. However, other decisions and orders, which are not directions simpliciter and determining the rights of the parties, should be well reasoned analyzing and deciding the rival contentions raised before the Commission by the parties. In other words, the Commission is expected to express prima facie view in terms of Section 26(1) of the Act, without entering into any adjudicatory or determinative process and by recording minimum reasons substantiating the formation of such opinion, while all its other orders and decisions should be well reasoned.” (ii) State of Orissa and Others v. Mesco Steels Limited and Another, (2013) 4 SCC 340 : LNIND 2013 SC 174: “19. It is obvious from a conjoint reading of letter dated 12th January, 2006 and communication dated 19th September, 2006 sent by the Director of Mines in response thereto that a final decision on the subject had yet to be taken by the Government, no matter the Government may have provisionally decided to follow the line of action indicated in its communication dated 12th January, 2006 issued under the signature of the Joint Secretary, Department of Steel and Mines. It is noteworthy that there was no challenge to the communication dated 12th January, 2006 before the High Court nor was any material placed before us to suggest that any final decision was ever taken by the Government on the question of deduction of the area granted in favour of the respondent so as to render the process of issue of show cause notice for hearing the respondent-company an exercise in futility. 20. On the contrary, the issue of the show cause notice setting out the reasons that impelled the Government to claim resumption of a part of the proposed lease area from the respondent-company clearly suggested that the entire process leading up to the issue of the show cause notice was tentative and no final decision on the subject had been taken at any level. It is only after the Government provisionally decided to resume the area in part or full that a show cause notice could have been issued. To put the matter beyond any pale of controversy, Mr. It is only after the Government provisionally decided to resume the area in part or full that a show cause notice could have been issued. To put the matter beyond any pale of controversy, Mr. Lalit made an unequivocal statement at the bar on behalf of the State Government that no final decision regarding resumption of any part of the lease area has been taken by the State Government so far and all that had transpired till date must necessarily be taken as provisional. Such being the case the High Court was in error in proceeding on an assumption that a final decision had been taken and in quashing what was no more than an inter-departmental communication constituting at best a step in the process of taking a final decision by the Government. The writ petition in that view was pre-mature and ought to have been disposed of as such. Our answer to question No. 1 is accordingly in the affirmative.” (iii) Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and Others, AIR 1996 SC 691 : (1996) 1 SCC 327 : LNIND 1995 SC 1169: “10. We are concerned in this case, with the entertainment of the Writ Petition against a show cause notice issued by a competent statutory authority. It should be borne in mind that there is not attack against the vires of the statutory provisions governing the matter. No question of infringement of any fudamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 notice is ex facie a “nullity” or totally “without jurisdiction” in the traditional sense of that expression -- that is to say even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthrised. In such a case, for entertaining a Writ Petition under Article 226 of the Constitution of India against a show-cause notice, at power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropariate that the party shold avail of the alternate remedy and show cause against the same before the authority concerned and taken up the objection regarding jurisdiction alos, then. In all other cases, it is only appropariate that the party shold avail of the alternate remedy and show cause against the same before the authority concerned and taken up the objection regarding jurisdiction alos, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India. 11. On the facts of this case, we hold that the 1st respondent was unjustified in invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India, without first showing cause against Annexure Ext. P-4 before the 3rd respondent. The appropriate procedure for the 1st respondent would have been to file his objections and place necessary materials before the 3rd respondent and invite a decision as to whether the proceedings initiated by the 3rd respondent under Section 59 of the Bihar State Housing Board Act, 1982, are justified and appropriate. The adjudication in that behalf necessarily involves disputed questions of fact which require investigation. In such a case, proceedings under Article 226 of the Constitution can hardly be an appropriate remedy. The High Court committed a grave error in entertaining the Writ Petition and in allowing the same by quashing Annexure Ext. P-4 and also the Eviction proceedings No. 6/92, without proper and fair investigation of the basic facts. We are, therefore, constrained to set aside the judgment of the High Court of Patna in CWJC NO. 82/93 dated 10.2.1993. We hereby do so. The appeal is allowed with costs.” (iv) The Tamil Nadu Film Exhibitors Association, Dr. Mailigai, No. 2, Old No. 16, Poes Road, III Street, Teynampet, Chennai v. Competition Commission of India, New Delhi and Others (W.P. Nos. 12085 and 14411 of 2013), decided on 16.08.2013: “20. The Commission has only initiated proceedings under Section 26(1) of the Act. The Director General is yet to take up the matter for investigation. The petitioner would be given sufficient opportunity to submit its case, including the contention with regard to the creation of fraudulent records. 23. The judicial review in a matter of this nature is very limited. The Commission has only initiated proceedings under Section 26(1) of the Act. The Director General is yet to take up the matter for investigation. The petitioner would be given sufficient opportunity to submit its case, including the contention with regard to the creation of fraudulent records. 23. The judicial review in a matter of this nature is very limited. The Court cannot sit on appeal over a decision taken by the Commission to initiate proceedings to ascertain the veracity of the complaint by arriving at a prima facie opinion. There is no adverse order passed against the petitioner to test the correctness of the decision making process. The petitioner has no case that the competition commission has no jurisdiction even to enquire into the matter. Therefore, I am of the view that the writ petition in W.P. No. 12085 of 2013 is misconceived. Since the genuineness of the resolution, which is the basis for the complaint, would be looked into by the Director General and thereafter by the Commission, there is no question of directing the police to register the complaint.” (v) Arun Kumar and Others v. Union of India and Others, (2007) 1 SCC 732 : LNIND 2006 SC 735: “84. From the above decisions, it is clear that existence of ‘jurisdictional fact’ is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. Once the authority has jurisdiction in the matter on existence of ‘jurisdictional fact’, it can decide the ‘fact in issue’ or ‘adjudicatory fact’. A wrong decision on ‘fact in issue’ or on ‘adjudicatory fact’ would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present.” Kingfisher Airlines Limited and Another v. Competition Commission of India and Others, MANU/MH/1167/2010 : LNIND 2010 BOM 291: “21. Now, we propose to deal with the submission that unless and until the Commission first determines the relevant market, the relevant geographic market, it cannot take any action under Section 4 of the Competition Act. Shri, Seervai, the learned Senior counsel, submits that Section 4 postulates abuse of dominant position. Now, we propose to deal with the submission that unless and until the Commission first determines the relevant market, the relevant geographic market, it cannot take any action under Section 4 of the Competition Act. Shri, Seervai, the learned Senior counsel, submits that Section 4 postulates abuse of dominant position. He submits that, dominant position shall be taken as an abuse if the group does an act as given in Clauses (a) and (e) of Sub-section 2 and three conditions such as relevant market, relevant geographic market and relevant product are established. There is no doubt that for coming at a conclusion as to whether a particular group has abused the dominant position or not, three things, namely; relevant market, relevant geographic market and relevant products are to be considered. However, for considering the effect of Section 4, it would also be necessary to look into the various other provisions of the Act. 22. If Section 4 is read, it can be said that there are two conditions which need to be fulfilled. First, the group must hold a dominant position and secondly, such dominant position must be abused. Clearly, therefore, if a group holds a dominant position but does not abuse it, the group would not be covered by the section at all. The question is whether the Commission is prevented from taking any action before it is so actually established. On careful reading of Section 4 , it is clear to us that Section 4 merely defines the dominant position. It does not go further or beyond defining abuse. To us, it is clear from Section 19 that the Commission can act upon receipt of information and on a reference made to it by the Central or State Government or on its own motion. It is, therefore, clear that there has to be some information before the Commission about the alleged breaches of Sections 3 and 4. If the Commission receives an information, it is supposed under Section 19 to enquire into the complaint received. Under the Code of Criminal procedure, a Police Officer is supposed to look into the complaint and decide whether the information discloses a cognizable offence or not. If, upon reading the complaint, he finds that it does disclose a cognizable offence, he is bound to register the First Information Report and investigate into it. Under the Code of Criminal procedure, a Police Officer is supposed to look into the complaint and decide whether the information discloses a cognizable offence or not. If, upon reading the complaint, he finds that it does disclose a cognizable offence, he is bound to register the First Information Report and investigate into it. The word ‘investigation’ has been defined in the Criminal Procedure Code as follows: “Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.” 23. The investigation is only for the purpose of collection of evidence. The investigation starts only after there is prima facie proof of commission of cognizable offence. The position of this Act appears to be almost identical. Section 19 clarifies as to on what count enquiry should be made and in what manner. For instance, Sub-section 6 says as to which factors need to be taken into consideration while determining the relevant geographic market. The enquiry is supposed to proceed bearing in mind those factors. If Section 26 is read with Section 19, it would be clear that the information received under Section 19 is to be placed before the Commission; and if the Commission finds a prima facie case. It is, therefore, not necessary that the investigation would be ordered in each and every case. Therefore, the information that is received can be treated as if it is an F.I.R. It will have to be found out by the Commission from that information whether there is any material in the said information which requires them to take cognizance of the complaint and then order an investigation. The investigation, the purpose of which, would be to collect evidence and would disclose if the group abused its dominant position. Therefore, it is clear that the investigation would reveal if there is sufficient evidence available to take further action. It is after the report of the Director General that the Commission proceeds to pass order under Section 26(6) either to close the matter forthwith or under Clause (7) may order further investigation. If the report discloses any breach, the Commission is supposed to enquire into such breaches. This enquiry report is again considered under Section 27 and then an action follows. If the report discloses any breach, the Commission is supposed to enquire into such breaches. This enquiry report is again considered under Section 27 and then an action follows. It is, therefore, clear to us that the question as to whether there is a breach of provisions of Sections 3 and 4 is finally considered under Sections 19, 26 and 27(8). Sections 19 and 26(1) speak of existence of prima facie case only. Therefore, at the prima facie stage, it is never concluded whether there is breach or otherwise. Therefore, at preliminary stage, it is only to be seen if there is reason to believe that there is a breach of Sections 3 and 4. The law is well settled that the court should not stifle the investigation at all, except for compelling reason or when F.I.R. does not disclose any offence at all. If the analogy is to be applied here it cannot be said that the information given by respondent No. 3 does not disclose any breach nor can it be said that it is a case of lack of inherent jurisdiction to the Commission to investigate. It has a power to enquire and investigate into every complaint received under the Act, as is clear from the above provision. The Supreme Court in a decision reported in Sanaparededdy Maheedhar Seshagiri and Another v. State of Andhra Pradesh and Another (2007) 13 SCC 165 , make the following observations: The High Court should be extremely cautious and slow to interfere with the investigation and/or prosecution except when it is convinced beyond any manner of doubt that FIR does not disclose commission of any offence or that the allegations contained in FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court. In dealing with such cases, the High Court has to bear in mind that the judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and social interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing FIR or complaint or restraining the competent authority from investigating the allegations contained in FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in FIR or complaint disclose commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations imply because the petitioner alleges malus animus against the author of FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. Although the decision is basically on criminal law, the ratio can be squarely applied. If the said ratio is to be applied, the enquiry/investigation cannot be stifled at all. We have not made reference to other decisions cited, since we find that the decisions referred to in this judgment were enough to arrive at a conclusion. We find that it was not necessary for the Commission to first find out the relevant geographic market, relevant products market or relevant market. Such things can be found or concluded upon investigating and not necessarily before that.” (vi) Brahm Dutt v. Union of India, AIR 2005 SC 730 : (2005) 2 SCC 431 : LNIND 2005 SC 67: “3. We find that it was not necessary for the Commission to first find out the relevant geographic market, relevant products market or relevant market. Such things can be found or concluded upon investigating and not necessarily before that.” (vi) Brahm Dutt v. Union of India, AIR 2005 SC 730 : (2005) 2 SCC 431 : LNIND 2005 SC 67: “3. The present Writ Petition was filed in this Court by a practicing Advocate essentially praying for the relief of striking down Rule 3 of the Competition Commission of India (Selection of Chairperson and Other Members of the Commission) Rules, 2003 (hereinafter referred to as ‘the Rules’) and for other consequential reliefs including the issue of a writ of mandamus directing the Union of India to appoint a person who is or has been a Chief Justice of a High Court or a senior Judge of a High Court in India in terms of the directions contained in the decision in S.P. Sampath Kumar v. Union of India and Others, (1987) 1 SCC 124 . The essential challenge was on the basis that the Competition Commission envisaged by the Act was more of a judicial body having adjudicatory powers on questions of importance and legalistic in nature and in the background of the doctrine of separation of powers recognized by the Indian Constitution, the right to appoint the judicial members of the Commission should rest with the Chief Justice of India or his nominee and further the Chairman of the Commission had necessarily to be a retired Chief Justice or Judge of the Supreme Court or of the High Court, to be nominated by the Chief Justice of India or by a Committee presided over by the Chief Justice of India. In other words, the contention is that the Chairman of the Commission had to be a person connected with the judiciary picked for the job by the head of the judiciary and it should not be a bureaucrat or other person appointed by the executive without reference to the head of the judiciary. The arguments in that behalf are met by the Union of India essentially on the ground that the Competition Commission was more of a regulatory body and it is a body that requires expertise in the field and such expertise cannot be supplied by members of the judiciary who can, of course, adjudicate upon matters in dispute. The arguments in that behalf are met by the Union of India essentially on the ground that the Competition Commission was more of a regulatory body and it is a body that requires expertise in the field and such expertise cannot be supplied by members of the judiciary who can, of course, adjudicate upon matters in dispute. It is further contended that so long as the power of judicial review of the High Courts and the Supreme Court is not taken away or impeded, the right of the Government to appoint the Commission in terms of the statute could not be successfully challenged on the principle of separation of powers recognized by the Constitution. It was also contended that the Competition Commission was an expert body and it is not as if India was the first country which appointed such a Commission presided over by persons qualified in the relevant disciplines other than judges or judicial officers. Since the main functions of the expert body were regulatory in nature, there was no merit in the challenge raised in the Writ Petition. 5. We find that the amendments which the Union of India proposes to introduce in Parliament would have a clear bearing on the question raised for decision in the Writ Petition essentially based on the separation of powers recognized by the Constitution. The challenge that there is usurpation of judicial power and conferment of the same on a non- judicial body is sought to be met by taking the stand that an Appellate Authority would be constituted and that body would essentially be a judicial body conforming to the concept of separation of judicial powers as recognized by this Court. In the Writ Petition the challenge is essentially general in nature and how far that general challenge would be met by the proposed amendments is a question that has to be considered later, if and when, the amendments are made to the enactment. In fact, what is contended by learned counsel for the petitioner is that the prospect of an amendment or the proposal for an amendment cannot be taken note of at this stage. In fact, what is contended by learned counsel for the petitioner is that the prospect of an amendment or the proposal for an amendment cannot be taken note of at this stage. Since, we feel that it will be appropriate to consider the validity of the relevant provisions of the Act with particular reference to Rule 3 of the Rules and Section 8(2) of the Act, after the enactment is amended as sought to be held out by the Union of India in its counter affidavits, we are satisfied that it will not be proper to pronounce on the question at this stage. On the whole, we feel that it will be appropriate to postpone a decision on the question after the amendments, if any, to the Act are carried out and without prejudice to the rights of the petitioner to approach this Court again with specific averments in support of the challenge with reference to the various sections of the Act on the basis of the arguments that were raised before us at the time of hearing. Therefore, we decline to answer at this stage, the challenge raised by the petitioner and leave open all questions to be decided in an appropriate Writ Petition, in the context of the submission in the counter affidavits filed on behalf of the Union of India that certain amendments to the enactment are proposed and a bill in that behalf would be introduced in Parliament. 6. We may observe that if an expert body is to be created as submitted on behalf of the Union of India consistent with what is said to be the international practice, it might be appropriate for the respondents to consider the creation of two separate bodies, one with expertise that is advisory and regulatory and the other adjudicatory. This followed up by an appellate body as contemplated by the proposed amendment, can go a long way, in meeting the challenge sought to be raised in this Writ Petition based on the doctrine of separation of powers recognized by the Constitution. Any way, it is for those who are concerned with the process of amendment to consider that aspect. This followed up by an appellate body as contemplated by the proposed amendment, can go a long way, in meeting the challenge sought to be raised in this Writ Petition based on the doctrine of separation of powers recognized by the Constitution. Any way, it is for those who are concerned with the process of amendment to consider that aspect. It cannot be gainsaid that the Commission as now contemplated, has a number of adjudicatory functions as well.” (vii) Lafarge Umiam Mining Private Limited and Another v. Union of India and Others, AIR 2011 SC 2781 : (2011) 7 SCC 338 : “122 (i.2). The difference between a regulator and a court must be kept in mind. The court/tribunal is basically an authority which reacts to a given situation brought to its notice whereas a regulator is a proactive body with the power conferred upon it to frame statutory rules and regulations. The regulatory mechanism warrants open discussion, public participation and circulation of the draft paper inviting suggestions.” (viii) Kingfisher Airlines Ltd. And another v. Competition Commission of India and Others, SLP Appeal (Civil) No. 16877 of 2010 dated 24.09.2010: “Learned counsel for the petitioner seeks to withdraw this petition in the light of the judgment of this Court dated September 9, 2010 in C.A. No. 7779 of 2010 reported as 2010 (9) Scale 291 Competition Commission of India v. Steel Authority of India and another. Accordingly, the special leave petition is dismissed as withdrawn.” (ix) Namrata Marketing Pvt. Ltd. v. Competition Commission of India and Others (Civil Misc. Writ Petition No. 42783 of 2013) dated 04.02.2013 of the Allahabad High Court : “38. Pertinently, the Commission in exercise of its power under Section 19 of the Competition Act has considered the observation of the CAG and after considering the CAG’s report and other materials, it formed an opinion that there exists a prima faice case. Therefore, we are unable to accept the submission of learned counsel for the petitioner that there was no material before the commission to initiate the suo-motu proceedings against the petitioner in terms of Section 19 of the Competition Act. 39. The object and scheme of the Competition Act fell for consideration recently before the Supreme Court in the case of Competition Commission of India v. Steel Authority of India Limited and Another, (2010) 10 SCC 744. 39. The object and scheme of the Competition Act fell for consideration recently before the Supreme Court in the case of Competition Commission of India v. Steel Authority of India Limited and Another, (2010) 10 SCC 744. The Supreme Court, after examining the provisions of the Competition Act and the Regulations framed thereunder, was of the opinion that the matter related to contraventions of the Act, ought to be disposed of expeditiously in a time bound programme. The Court went elaborately into various aspects of the scheme of the Act and aptly observed as under: “10. The Act and the Regulations framed thereunder clearly indicate the legislative intent of dealing with the matters related to contravention of the Act, expeditiously and even in a time-bound programme. Keeping in view the nature of the controversies arising under the provisions of the Act and larger public interest, the matters should be dealt with and taken to the logical end of pronouncement of final orders without any undue delay. In the event of delay, the very purpose and object of the Act is likely to be frustrated and the possibility of great damage to the open market and resultantly, country’s economy cannot be ruled out.” 43. The matter can be looked at from another angle also. 44. The impugned notice issued by the Director General is in the nature of a show cause notice. The Supreme Court in a long line of decisions has held that the writ petition against the show cause notice is not maintainable. There are very limited grounds when writ petition can be entertained against show cause notice, i.e. when it is totally without jurisdiction or against the vires of statutory provision. In the present case, the petitioner has not challenged the impugned notice on the ground that the Commission does not have power to investigate or enquire into the matter.” (x) Competition Appellate Tribunal Appeal No. 79 of 2012 (Excel Crop Care Limited v. Competition Commission of India and Others) decided on 29.10.2013: “28. At this juncture, we must take into account the other argument of all the learned counsel to the effect that the DG could not have investigated into the tender floated in 2011, as the CCI had not authorized the DG to investigate into that matter. At this juncture, we must take into account the other argument of all the learned counsel to the effect that the DG could not have investigated into the tender floated in 2011, as the CCI had not authorized the DG to investigate into that matter. The learned counsel, then contended that the DG had no jurisdiction, therefore, to investigate and the whole investigation thus has been rendered non-est because of the lack of jurisdiction. The learned counsel took us through the provisions of Section 26(1) as also the various Regulations in that behalf. As per the sub-section (1) of Section 26, there can be no doubt that the DG has the power to investigate only on the basis of the order passed by the Commission under Section 26(1). Our attention was also invited to sub-section (3) of Section 26 under which the Director-General, on receipt of direction under sub-section (1) is to submit a report of its findings within such period as may be specified by the Commission. The argument of the parties is that if on the relevant date when the Commission passed the order, even the tender notice was not floated, then there was no question of Director General going into the investigation of that tender. It must be noted at this juncture that under Section 18, the Commission has the duty to eliminate practices having adverse effect on competition and to promote and sustain competition. It is also required to protect the interests of the consumers. There can be no dispute about the proposition that the Director General on his own cannot act and unlike the Commission, the Director General has no suo-moto power to investigate. That is clear from the language of Section 14 also, which suggests that when directed by the Commission, the Director General is to assist the Commission in investigating into any contravention of the provisions of the Act. Out attention was also invited to the Regulations and more particularly to Regulation 20, which pertains to the investigation by the Director General. That is clear from the language of Section 14 also, which suggests that when directed by the Commission, the Director General is to assist the Commission in investigating into any contravention of the provisions of the Act. Out attention was also invited to the Regulations and more particularly to Regulation 20, which pertains to the investigation by the Director General. Sub-regulation (4) of Section 20 was pressed into service by all the learned counsel, which is in the following term: “The report of the Director-General shall contain his findings on each of the allegations made in the information or reference, as the case may be, together with all evidences or documents or statements or analyses collected during the investigation:” From this, the learned counsel argued that the Director General could have seen into the tender floated on 08.05.2009 only, and no other tender as the information did not contain any allegation about the tender floated in 2011. Therefore, the investigation made into the tender floated in 2011 was outside the jurisdiction of the Director General. This argument was more particularly pressed into service, as the Director General as well as the Competition Commission of India have found that all the appellants had entered into an agreement to boycott the tender floated in 2011 and thereby had rigged the bids. 29. We have absolutely no quarrel with the proposition that the Director General must investigate according to the directions given by the CCI under Section 26(1). There is also no quarrel with the proposition that the Director General shall record his findings on each of the allegations made in the information. However, it does not mean that if the information is made by the FCI on the basis of tender notice dated 08.05.2009, the investigation shall be limited only to that tender. Everything would depend upon the language of the order passed by the CCI on the basis of information and the directions issued therein. If the language of the order of Section 26(1) is considered, it is broad enough. At this juncture, we must refer to the letter written by Chairman and Managing Director of FCI, providing information to the CCI. The language of the letter is clear enough to show that the complaint was not in respect of a particular event or a particular tender. It was generally complained that appellants had engaged themselves in carteling. At this juncture, we must refer to the letter written by Chairman and Managing Director of FCI, providing information to the CCI. The language of the letter is clear enough to show that the complaint was not in respect of a particular event or a particular tender. It was generally complained that appellants had engaged themselves in carteling. The learned counsel Shri Virmani as well as Shri Balaji Subramanian are undoubtedly correct in putting forth the argument that this information did not pertain to a particular tender, but it was generally complained that the appellants had engaged in the anti competitive behaviour. When we consider the language of the order passed by the CCI under Section 26(1) dated 23.04.2012 the things becomes all the more clear to us. The language of that order is clearly broad enough to hold that the Director General was empowered and duty bound to look into all the facts till the investigation was completed. If in the course of investigation, it came to the light that the parties had boycotted the tender in 2011 with pre-concerted agreement, there was no question of the DG not going into it. We must view this on the background that when the information was led, the Commission had materials only to form a prima facie view. The said prima facie view could not restrict the Director General, if he was duty bound to carry out a comprehensive investigation in keeping with the direction by CCI. In fact the DG has also taken into account the tenders by some other corporations floated in 2010 and 2011 and we have already held that the DG did nothing wrong in that. In our opinion, therefore, the argument fails and must be rejected.” 27. I have heard the learned counsel on either side and given my thoughtful consideration to the facts of the case, materials furnished and also the decisions relied upon. 28. In our opinion, therefore, the argument fails and must be rejected.” 27. I have heard the learned counsel on either side and given my thoughtful consideration to the facts of the case, materials furnished and also the decisions relied upon. 28. On a thorough analysis of the records, what comes to be known is, that, one Shamsher Kataria, who is the informant, had filed an information, dated 17.01.2011, with Competition Commission of India, first respondent herein, under Section 19 of the Companies Act,2002, which was taken on file in Case No. 3 of 2011, against three car companies, namely, (1) Honda Siel Cars India Ltd., (2) Volkswagen India Ltd., and (3) Fiat India Automobiles Ltd., alleging anti-competitive methods/agreements and abuse of dominant position by the said three car manufacturers, which were violative of Sections 3 and 4 of the Act. The said allegations include, (i) genuine spare parts, diagnostic tools, technological information etc. are not made available to independent repair workshops; (ii) restrictions are imposed on original equipment suppliers (OESs) forcing them not to supply spare parts in the open market; (iii) dealers are prohibited from taking dealership of other car manufacturers etc. After receiving the said information from the informant, the Commission, on the basis of the merits of the said complaint, passed an order under Section 26 (1) of the Act, in its meeting held on 24.02.2011, forming an opinion on the existence of a prima facie case, as detailed in the information, as against the said three car manufacturers. The said opinion was communicated to the Director General, second respondent, vide letter, dated 08.03.2011, along with a copy of the information, directing to submit his investigation report within a period of 60 days. Immediately on receipt of the order, notices were sent to the above three companies. While some replies were received, others awaited. From the discussions held and the preliminary enquiries made during the course of investigation, it had been gathered that similar practices were being followed by other car manufacturers in India in the areas of after sales service, procurement and sale of spare parts from OESs, setting up of dealerships etc. While some replies were received, others awaited. From the discussions held and the preliminary enquiries made during the course of investigation, it had been gathered that similar practices were being followed by other car manufacturers in India in the areas of after sales service, procurement and sale of spare parts from OESs, setting up of dealerships etc. However, as the said practices were not confined to the said three entities, the case involved a larger issue related to prevalent conduct of the players in the automobile sector and its implication on the consumers at large, it was proposed that the scope of the investigation be expanded to examine the practices in the areas under consideration of all the car manufacturers in India. Accordingly, on 19.04.2011, the second respondent requested the Commission for directions to initiate investigation against all other car manufacturers in India, as well. Pursuant thereto, the Commission considered the request of the second respondent in its meeting held on 26.04.2011 and approved the same to initiate investigation against other car manufacturers also, including the writ petitioners herein. Vide its orders, dated 26.04.2011, the Commission also observed that whenever Commission ordered of investigation in any case, it need not be confined to the parties mentioned in the information; that the investigation was ordered on certain issues and all the parties which were covered by that issue should be investigated and that there was no need to obtain the orders of the Commission on each individual case. Thereafter, the second respondent applied for extension of time on several occasions for submission of the report and the same was granted. At last, the Director General submitted his report on 31.07.2012, concluding that the petitioners had contravened the provisions of the Companies Act. Subsequently, the Additional Director General issued a notice, dated 04.05.2011, under Sections 36 (2) and 41 (2) of the Competition Act, 2002, to the petitioner in W.P. Nos. 31808 and 31809 of 2012, with regard to the investigation conducted by his office into certain anti-competitive practices, alleged to be prevalent in the sale, maintenance, service and repair market of the cars manufactured in India, as stated above. 31808 and 31809 of 2012, with regard to the investigation conducted by his office into certain anti-competitive practices, alleged to be prevalent in the sale, maintenance, service and repair market of the cars manufactured in India, as stated above. By the said notice, the petitioner was advised to furnish the following information and/or documents in the office of the third respondent, latest by 16th May, 2011: 1) Details of the Promoters, Board of Directors, President, CEO and Compliance Officer of the company. 2) Date of incorporation and copies of MOA, AOA and Annual Reports for previous three financial years. 3) Business area of operations and the products sold by the company. 4) Business segment - wise turnover and profit/loss for the last three financial years. 5) Structure and size of the manufacturing and sale of automobiles by the company in India and abroad for the last three financial years in volume and in value in INR. 6) Structure and size of the maintenance, service and repair market of the automobile manufactured by the company for last three years in volume and value in INR. Component of labour cost and that of spare parts may be indicated separately. 7) After sales service, repair and maitenance of automobiles manufactured/sold. 8) Availability of spare parts, technological information, diagnostic tools etc., to workshops other than the company’s authorised dealer’s workshops. 9) Policy of sale of spare parts by original equipment manufacturers/suppliers (OESs). 10) Sale of spare parts through dealers/workshops. 11) Authorised dealers to take up other franchise. 12) Details of agreements/arrangements, if any, having features of “tie-in arrangements”; “exclusive supply”; “exclusive distribution”; “re-sale price maintenance”; “refusal to deal” entered by the company with any other party/parties in connection with the sales and after sales service, repair and maintenance of the cars. 13) Information with respect to various spare parts used in cars manufactured by the company. 14) How does the prices of cars of the company compare with the total sum of prices of spare parts used in manufacturing, if those spare parts were to be sold individually. Information be given for the last financial year. 15) Price of cars sold vis a vis the cost of production in the last financial year. 16) Nature of linkages of the company with its Indian/global partners and the latter’s role in their aforesaid operations and policies of the company. Information be given for the last financial year. 15) Price of cars sold vis a vis the cost of production in the last financial year. 16) Nature of linkages of the company with its Indian/global partners and the latter’s role in their aforesaid operations and policies of the company. 17) How the practices of the company/affiliates in India with respect to the aforesaid areas compare with its operations/those of the global partners/counterparts in other jurisdictions like Japan, EU, USA etc. 18) Any other information relevant to the case. 29. The said notice also indicated that in case information was not submitted by the due tate, it might be liable for penal provisions under Section 43 of the Act and, further, in case information furnished was found to be false or suppressed in any manner, it might also be liable for penal provisions under Section 45. 30. The order of the first respondent, dated 26.04.2011,approving the request of the second respondent to initiate investigation against other car manufacturers also and the notice of the third respondent, dated 04.05.2011, calling for particualrs of the company, are under challenge in these writ petitions. 31. According to the learned Senior Counsel for the petitioner in W.P. No. 26448 of 2013 as well as the other counsel for the petitioner in W.P. Nos. 31808 and 31809 of 2012, the impugned orders would suffer on account of the following grounds: (1) The first respondent has no jurisdiction to pass the order dated 26.04.2011 in Case No. 03/2011 for investigation by the second respondent against the petitioners. (2) There is a violation of fundamental rights of the petitioners under Articles 19 (1) (g) and 21 of the Constitution of India. (3) The first respondent has violated the principles of natural justice in conducting the adjudicatory proceedings in Case No. 03/2011 against the petitioners. (4) There is inordinate and unexplained delay by the second respondent in conducting the investigation against the petitioners. (5) There is no competency of the quorum of the first respondent. 32. However, the said points are rebutted by the learned Solicitor General of India, appearing for the respondents, by raising a preliminary objection that these Writ Petitions are premature and not maintainable and that, if at all, the remedy for the petitioners is only before the Appellate Tribunal, but not this Court. 33. 32. However, the said points are rebutted by the learned Solicitor General of India, appearing for the respondents, by raising a preliminary objection that these Writ Petitions are premature and not maintainable and that, if at all, the remedy for the petitioners is only before the Appellate Tribunal, but not this Court. 33. Therefore, in order to examine the correctness of the points raised by the learned counsel for the petitioners, the said points have to overcome the preliminary objection raised by the learned Solicitor General of India, as to the maintainability of the Writ Petitions. 34. In order that a writ petition is maintainable, the issue therein needs attraction of any one of the three elements viz., (1) violation of fundamental rights; (2) violation of principles of natural justice; and (3) ultra vires of the provisions of the Act or the statute. 35. Let me now test the above elements with the case on hand. 35.1. Violation of fundamental rights: 35.1.1. According to the learned counsel for the petitioners, the impugned proceeding, dated 26.04.2011, vide Case No. 03/2011, of the first respondent, is violative of Article 19 (1) (g) and, consequently, the due process provided under Article 21 of the Constitution of India is also violated by the subsequent notice of the third respondent, dated 04.05.2011. 35.1.2. Article 19 (1) (g) contemplates right to practise any profession, or to carry on any occupation, trade or business. However, as per sub-section (6) of Section 19, nothing in sub-clause (g) of sub-section (1) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. In other words, Article 19(1)(g) guarantees that all citizens shall have the right to practise any profession or to carry on any occupation, trade or business. However, in terms of Article 19(6), this right can be restricted by a statute imposing reasonable restrictions. A combined reading of clauses (1) and (6) of Article 19 makes it clear that a citizen has a fundamental right to carry on any trade or business and the State can make a law imposing reasonable restrictions on the said right in the interest of the general public. 35.1.3. A reading of the impugned order, dated 26.04.2011, of the first respondent would indicate that following the office note of the second respondent, dated 19.04.2011, requesting the Commission for directions to initiate investigation against other car manufacturers in India as against the particular car manufacturers mentioned in the information by the informant, stating that the scope of the investigation needed to be widened in the case, the Commission considered the request of the second respondent in its meeting held on 26.04.2011 and approved the same to initiate investigation against other car manufacturers also, including the writ petitioners herein, as mentioned in the note of the second respondent. Further, vide the said order, dated 26.04.2011, the Commission also observed that whenever Commission ordered of investigation in any case, it need not be confined to the parties mentioned in the information; that the investigation was ordered on certain issues and all the parties which were covered by that issue should be investigated and that there was no need to obtain the orders of the Commission on each individual case. Thereafter, the Additional Director General, third respondent herein, issued a notice, dated 04.05.2011, under Sections 36 (2) and 41 (2) of the Competition Act, 2002, to the petitioner in W.P. Nos. 31808 and 31809 of 2012, with regard to the investigation conducted by his office into certain anti-competitive practices, alleged to be prevalent in the sale, maintenance, service and repair market of the cars manufactured in India, as stated above. By the said notice, the petitioner was advised to furnish certain information and/or documents in the office of the third respondent, as mentioned above, latest by 16th May, 2011, and it was also indicated therein that any failure of furnishing of information or furnishing of false information would attract penal provisions. 35.1.4. By the said notice, the petitioner was advised to furnish certain information and/or documents in the office of the third respondent, as mentioned above, latest by 16th May, 2011, and it was also indicated therein that any failure of furnishing of information or furnishing of false information would attract penal provisions. 35.1.4. While the proceeding of the first respondent, dated 26.04.2011, approved of the request of the second respondent for initiation of investigation against other car manufacturers also, the proceeding of the third respondent, dated 04.05.2011, is a notice, calling upon the writ petitioner, to furnish the information sought for therein. By the said proceedings, the right of the petitioners to practise any profession or to carry on any occupation, trade or business was not taken away by the respondents and, at the same time, they are also not deprived of their life or personal liberty. No fundamental right is absolute in nature, but the same is subject to reasonable restrictions. Therefore, I hold that there is no violation of fundamental rights of the petitioners by the impugned proceedings of the respondents. 35.2. Violation of principles of natural justice: On this point, the stand of the petitioners is that the Commission, vide its order, dated 28.05.2013 directed the opposite parties, including the petitioners, to file additional information by 30.06.2013; accordingly, the petitioners filed the requisite additional information on 27.06.2013 and requested for a personal hearing to explain the same, but, however, the petitioners were not granted the personal hearing. It is also their stand that written arguments are no substitute for personal hearing, as personal hearing enables the relevant authority to clear its doubts, if any, during the course of arguments and that justice should not only be done but should manifestly and undoubtedly be seen to be done. 35.2.1. To ascertain the position in this regard, I had to refer to the entire proceedings of the Commission of various dates in Case No. 03/2011. On going through the said proceedings, the following facts would come to light: 35.2.2. Pursuant to the submission of investigation report by the second respondent, the Commission, in its meeting held on 04.09.2012, considered the said report and sent a soft copy of the main investiagtion report (CD containing scanned copy of the report) to the informant and the 17 Car Manufacturing Companies (opposite parties), including the writ petitioners herein. Pursuant to the submission of investigation report by the second respondent, the Commission, in its meeting held on 04.09.2012, considered the said report and sent a soft copy of the main investiagtion report (CD containing scanned copy of the report) to the informant and the 17 Car Manufacturing Companies (opposite parties), including the writ petitioners herein. By the very same proceedings, dated 04.09.2012, the Commmission also asked the parties to file their reply/objections within four weeks of receipt of the report along with profit and loss accounts and balance sheet of their enterprises for the last three financial years and also to appear for oral hearing, either personally or through their authorised representative on the dates and time mentioned therein. While the date and time of oral hearing for the petitioner in W.P. Nos. 31808 and 31809 of 2012, namely, Hyundai Motors, was fixed on 17.10.2012 at 10.30 a.m., the date and time of oral hearing for the petitioner in W.P. No. 26488 of 2013, namely, Nissan Motors, was fixed on 18.10.2012 at 10.30 a.m. (emphasis supplied) 35.2.3. On 17.10.2012, the date on which oral hearing was fixed for Hyundai Motors, the company requested for additional time from four weeks to ninety days to file reply/objection to the DG Report and the Commission allowed the request of the company and granted time up to 30.11.2012. On the said date, the petitioner company was directed to appear before the Commission for oral hearing on 12.12.2012 at 10.30 a.m., thereby making clear that no further adjournment would be given in the matter. (emphasis supplied) 35.2.4. Similarly, on 18.10.2012, on which date oral hearing was fixed for Nissan Motors, the company requested for additional time to file reply/objection to the DG Report and the Commission allowed the request of the company and granted time up to 30.11.2012. In addition, the petitioner company was directed to appear before the Commission for oral hearing on 12.12.2012 at 10.30 a.m., thereby making clear that no further adjournment would be given in the matter. (emphasis supplied) 35.2.5. On 12.12.2012, on which date oral hearing was fixed for both the petitioner companies, neither the petitioners nor their counsel were prepared to argue the matter. Instead, prayers were made, seeking time to move applications for cross-examination of the witnesses and to file affidavits, documents etc. (emphasis supplied) 35.2.5. On 12.12.2012, on which date oral hearing was fixed for both the petitioner companies, neither the petitioners nor their counsel were prepared to argue the matter. Instead, prayers were made, seeking time to move applications for cross-examination of the witnesses and to file affidavits, documents etc. The Commission allowed the parties to move appropriate miscellaneous applications by 21.12.2012 and fixed the matter for consideration of the applications by the Commission for 10.01.2013. On the said date, the Commission also considered the application, dated 30.11.2012, moved on behalf of Hyundai Motors, requesting to defer further proceedings in the matter; dispense with the party from filing reply/objection to the DG Report and also to dispense with the personal appearance before the Commission on 12.12.2012 on the ground that a writ petition was filed before the Hon’ble High Court of Judicature at Madras challenging the jurisdiction and proceedings of the Commission in the matter. As no order of stay was granted by the High Court, the prayer made by the petitioner was rejected, as thoroughly misconceived. 35.2.6. Finally, on 04.02.2013, the arguments of Nissan Motors were heard and concluded. On 08.02.2013, the Commission considered the application, dated 07.02.2013, filed by Hyundai Motors, informing that the Hon’ble High Court of Judicature at Madras vide order dated 06.02.2013 had granted interim stay, as prayed for by the petitioner. Likewise, when the matter was listed before the Commission, Nissan Motors, vide its application dated 07.10.2013, filed a copy of the order of High Court of Madras, dated 24.09.2013, in W.P. No. 26488 of 2013, along with M.P. Nos. 1 and 2 of 2013, wherein the High Court granted interim stay of all further proceedings in Case No. 03/2011. 35.2.7. All the above events would clearly indicate that sufficient opportunities of personal hearings were afforded to the petitioners and, therefore, by no stretch of imagination, it can be said that there was a violation of principles of natural justice. 35.3. Ultra vires the provisions of the Act or the statute: 35.3.1. 35.2.7. All the above events would clearly indicate that sufficient opportunities of personal hearings were afforded to the petitioners and, therefore, by no stretch of imagination, it can be said that there was a violation of principles of natural justice. 35.3. Ultra vires the provisions of the Act or the statute: 35.3.1. According to the petitioners, the first respondent has no jurisdiction to cause or entertain a proceeding under Section 26 of the Act, as he had not received any information within the ambit of Section 19, to inquire into any alleged contravention stipulated under Sections 3 and 4 and, as such, the proceeding of the first respondent, dated 26.04.2011, and, the notice, dated 04.05.2011, of the third respondent, issued under Section 36 (2) read with Section 41 (2) of the Act, are ultra vires the provisions of the Act. It is also their case that the procedure adopted by the respondents is not in conformity with Regulations 16 and 18 of the Competition Commission of India (General) Regulations, 2009. 35.3.2. To examine this issue, it is indispensable to refer to Sections 3,4,19 and 26, 36 (2) and 41 (2) of the Competition Act,2002, and Regulations 16 and 18 of the Competition Commission of India (General) Regulations, 2009. The said provisions are as under: “Section 3: 3. Anti competitive agreements.—(1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India. (2) Any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void. (2) Any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void. (3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which— (a) directly or indirectly determines purchase or sale prices; (b) limits or controls production, supply, markets, technical development, investment or provision of services; (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way; (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services. Explanation.—For the purposes of this sub-section, “bid rigging” means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding. (4) Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including— (a) tie-in arrangement; (b) exclusive supply agreement; (c) exclusive distribution agreement; (d) refusal to deal; (e) resale price maintenance, shall be an agreement in contravention of sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India. Explanation.—For the purposes of this sub-section,— (a) “tie-in arrangement” includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods; (b) “exclusive supply agreement” includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person; (c) “exclusive distribution agreement” includes any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods; (d) “refusal to deal” includes any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought; (e) “resale price maintenance” includes any agreement to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged; (5) Nothing contained in this section shall restrict— (i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under— (a) the Copyright Act, 1957 (14 of 1957); (b) the Patents Act, 1970 (39 of 1970); (c) the Trade and Merchandise Marks Act , 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of 1999); (d) the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999); (e) the Designs Act, 2000 (16 of 2000); (f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37 of 2000). (ii) the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export. Section 4: 4. Abuse of dominant position.— (1) No enterprise or group shall abuse its dominant position. (2) There shall be an abuse of dominant position (under sub-section (1), if an enterprise or a group)— (a) directly or indirectly, imposes unfair or discriminatory— (i) condition in purchase or sale of goods or service; or (ii) price in purchase or sale (including predatory price) of goods or service. (2) There shall be an abuse of dominant position (under sub-section (1), if an enterprise or a group)— (a) directly or indirectly, imposes unfair or discriminatory— (i) condition in purchase or sale of goods or service; or (ii) price in purchase or sale (including predatory price) of goods or service. Explanation.—For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition; or (b) limits or restricts— (i) production of goods or provision of services or market therefor; or (ii) technical or scientific development relating to goods or services to the prejudice of consumers; or (c) indulges in practice or practices resulting in denial of market access (in any manner); or (d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or (e) uses its dominant position in one relevant market to enter into, or protect, other relevant market. Explanation.—For the purposes of this section, the expression— (a) “dominant position” means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to— (i) operate independently of competitive forces prevailing in the relevant market; or (ii) affect its competitors or consumers or the relevant market in its favour; (b) “predatory price” means the sale of goods or provision of services, at a price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors. ((c) “group” shall have the same meaning as assigned to it in clause (b) of the Explanation to Section 5.) Section 19: 19.Inquiry into certain agreements and dominant position of enterprise.—(1) The Commission may inquire into any alleged contravention of the provisions contained in sub-section (1) of Section 3 or sub-section (1) of Section 4 either on its own motion or on— (a) receipt of any information, in such manner and accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association; or (b) a reference made to it by the Central Government or a State Government or a statutory authority. (2) Without prejudice to the provisions contained in sub-section (1), the powers and functions of the Commission shall include the powers and functions specified in sub-sections (3) to (7). (3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under Section 3, have due regard to all or any of the following factors, namely:— (a) creation of barriers to new entrants in the market; (b) driving existing competitors out of the market; (c) foreclosure of competition by hindering entry into the market; (d) accrual of benefits to consumers; (e) improvements in production or distribution of goods or provision of services; or (f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services. (4) The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under Section 4, have due regard to all or any of the following factors, namely:— (a) market share of the enterprise; (b) size and resources of the enterprise; (c) size and importance of the competitors; (d) economic power of the enterprise including commercial advantages over competitors; (e) vertical integration of the enterprises or sale or service network of such enterprises; (f) dependence of consumers on the enterprise; (g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise; (h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers; (i) countervailing buying power; (j) market structure and size of market; (k) social obligations and social costs; (l) relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have appreciable adverse effect on competition; (m) any other factor which the Commission may consider relevant for the inquiry. (5) For determining whether a market constitutes a “relevant market” for the purposes of this Act, the Commission shall have due regard to the “relevant geographic market” and “relevant product market”. (6) The Commission shall, while determining the “relevant geographic market”, have due regard to all or any of the following factors, namely:— (a) regulatory trade barriers; (b) local specification requirements; (c) national procurement policies; (d) adequate distribution facilities; (e) transport costs; (f) language; (g) consumer preferences; (h) need for secure or regular supplies or rapid after-sales services. (7) The Commission shall, while determining the “relevant product market”, have due regard to all or any of the following factors, namely:— (a) physical characteristics or end-use of goods; (b) price of goods or service; (c) consumer preferences; (d) exclusion of in-house production; (e) existence of specialised producers; (f) classification of industrial products. Section 26: 26. (7) The Commission shall, while determining the “relevant product market”, have due regard to all or any of the following factors, namely:— (a) physical characteristics or end-use of goods; (b) price of goods or service; (c) consumer preferences; (d) exclusion of in-house production; (e) existence of specialised producers; (f) classification of industrial products. Section 26: 26. Procedure for inquiry under Section 19.—(1) On receipt of a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information received under Section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter: Provided that if the subject matter of an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information. (2) Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received under Section 19, the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (3) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission. (4) The Commission may forward a copy of the report referred to in sub-section (3) to the parties concerned: Provided that in case the investigation is caused to be made based on a reference received from the Central Government or the State Government or the statutory authority, the Commission shall forward a copy of the report referred to in sub-section (3) to the Central Government or the State Government or the statutory authority, as the case may be. (5) If the report of the Director General referred to in sub-section (3) recommends that there is no contravention of the provisions of this Act, the Commission shall invite objections or suggestions from the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be, on such report of the Director General. (6) If, after consideration of the objections or suggestions referred to in sub-section (5), if any, the Commission agrees with the recommendation of the Director General, it shall close the matter forthwith and pass such orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (7) If, after consideration of the objections or suggestions referred to in sub-section (5), if any, the Commission is of the opinion that further investigation is called for, it may direct further investigation in the matter by the Director General or cause further inquiry to be made in the matter or itself proceed with further inquiry in the matter in accordance with the provisions of this Act. (8) If the report of the Director General referred to in sub-section (3) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act. Section 36: 36. Power of Commission to regulate its own procedure.—(1) In the discharge of its functions, the Commission shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Commission shall have the powers to regulate its own procedure. Section 36: 36. Power of Commission to regulate its own procedure.—(1) In the discharge of its functions, the Commission shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Commission shall have the powers to regulate its own procedure. (2) The Commission shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:— (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses or documents; (e) requisitioning, subject to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), any public record or document or copy of such record or document from any office. (3) The Commission may call upon such experts, from the fields of economics, commerce, accountancy, international trade or from any other discipline as it deems necessary, to assist the Commission in the conduct of any inquiry by it. (4) The Commission may direct any person— (a) to produce before the Director General or the Secretary or an officer authorised by it, such books or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of which may be required for the purposes of this Act; (b) to furnish to the Director General or the Secretary or any other officer authorised by it, as respects the trade or such other information as may be in his possession in relation to the trade carried on by such person as may be required for the purposes of this Act. Section 41: 41. Director General to investigate contraventions.—(1) The Director General shall, when so directed by the Commission, assist the Commission in investigating into any contravention of the provisions of this Act or any rules or regulations made thereunder. (2) The Director General shall have all the powers as are conferred upon the Commission under sub-section (2) of Section 36. Section 41: 41. Director General to investigate contraventions.—(1) The Director General shall, when so directed by the Commission, assist the Commission in investigating into any contravention of the provisions of this Act or any rules or regulations made thereunder. (2) The Director General shall have all the powers as are conferred upon the Commission under sub-section (2) of Section 36. (3) Without prejudice to the provisions of sub-section (2), Sections 240 and 240-A of the Companies Act, 1956 (1 of 1956), so far as may be, shall apply to an investigation made by the Director General or any other person investigating under his authority, as they apply to an inspector appointed under that Act. (Explanation.—For the purposes of this section,— (a) the words “the Central Government” under Section 240 of the Companies Act, 1956 (1 of 1956) shall be construed as “the Commission”; (b) the word “Magistrate” under Section 240-A of the Companies Act, 1956 (1 of 1956) shall be construed as “the Chief Metropolitan Magistrate, Delhi”.) Regulation 16: 16.Opinion on existence of prima facie case.—(1) The Secretary, after scrutiny and removal of defects, if any, in an information or reference, as the case may be, shall place the same before the Commission to form its opinion on existence of a prima facie case. (2) In cases of alleged anti-competitive agreements and/or abuse of dominant position, the Commission shall, as far as possible, record its opinion on existence of a prima facie case within sixty days. (3) The Commission shall, as far as possible, hold its first ordinary meeting to consider whether prima facie case exists, within fifteen days of the date of placement of the matter by the Secretary under sub-regulation (1). Regulation 18: 18. Issue of direction to cause investigation on prima facie case.—(1) Where the Commission is of the opinion that a prima facie case exists, the Secretary shall convey the directions of the Commission within the seven days to the Director General to investigate the matter. (2) A direction of investigation to the Director General shall be deemed to be the commencement of an inquiry under Section 26 of the Act. 35.3.3. Section 3 of the Act deals with anti-competitive agreements. (2) A direction of investigation to the Director General shall be deemed to be the commencement of an inquiry under Section 26 of the Act. 35.3.3. Section 3 of the Act deals with anti-competitive agreements. Under Sub-section (1), no enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India. Sub-section (2) says that any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void. As per Sub-section (3), any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which — (a) directly or indirectly determines purchase or sale prices; (b) limits or controls production, supply, markets, technical development, investment or provision of services; (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way; (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition, provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services. Under Sub-section (4), any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including — (a) tie-in arrangement; (b) exclusive supply agreement; (c) exclusive distribution agreement; (d) refusal to deal; (e) resale price maintenance, shall be an agreement in contravention of sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India. 35.3.4. Section 4 denotes abuse of dominant position. As per Sub-section (1), no enterprise or group shall abuse its dominant position. 35.3.4. Section 4 denotes abuse of dominant position. As per Sub-section (1), no enterprise or group shall abuse its dominant position. Under Sub-section (2), there shall be an abuse of dominant position under sub-section (1), if an enterprise or a group — (a) directly or indirectly, imposes unfair or discriminatory— (i) condition in purchase or sale of goods or service; or (ii) price in purchase or sale (including predatory price) of goods or service; (b) limits or restricts — (i) production of goods or provision of services or market therefor; or (ii) technical or scientific development relating to goods or services to the prejudice of consumers; or (c) indulges in practice or practices resulting in denial of market access in any manner; or (d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or (e) uses its dominant position in one relevant market to enter into, or protect, other relevant market. The term “Dominant position”“ means, a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to operate independently of competitive forces prevailing in the relevant market or affect its competitors or consumers or the relevant market in its favour. 35.3.5. Section 19 contemplates inquiry into certain agreements and dominant position of enterprise. Vide Sub-section(1), the Commission may inquire into any alleged contravention of the provisions contained in sub-section (1) of Section 3 or sub-section (1) of Section 4 either on its own motion or on — (a) receipt of any information, in such manner and accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association; or (b) a reference made to it by the Central Government or a State Government or a statutory authority. 35.3.6. Section 26 provides for procedure for inquiry under Section 19. Sub-section (1) states that on receipt of a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information received under Section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter. Sub-section (3) speaks to the effect that the Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission. Under Sub-section (8), if the report of the Director General referred to in sub-section (3) recommends that there is contravention of any of the provisions of this Act and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act. 35.3.7. Section 36 contemplates the Power of the Commission to regulate its own procedure. As per Sub-section (1), in the discharge of its functions, the Commission shall be guided by the principles of natural justice and, subject to the other provisions of the Act and of any rules made by the Central Government, the Commission shall have the powers to regulate its own procedure. Under Sub-section (2), the Commission shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908. Sub-section (4) ordains that the Commission may direct any person — (a) to produce before the Director General or the Secretary or an officer authorised by it, such books or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of which may be required for the purposes of this Act and (b) to furnish to the Director General or the Secretary or any other officer authorised by it, as respects the trade or such other information as may be in his possession in relation to the trade carried on by such person, as may be required. 35.3.8. Section 41 deals with the power of theDirector General to investigate contraventions, as per which, under Sub-section(1), the Director General shall, when so directed by the Commission, assist the Commission in investigating into any contravention of the provisions of this Act or any rules or regulations made thereunder and under Sub-section (2), the Director General shall have all the powers as are conferred upon the Commission under sub-section (2) of Section 36. 35.3.9. Coming to Competition Commission of India (General) Regulations, 2009, Regulation 16 is with regard to Opinion on existence of prima facie case. 35.3.9. Coming to Competition Commission of India (General) Regulations, 2009, Regulation 16 is with regard to Opinion on existence of prima facie case. Upon this Regulation, under clause (1), the Secretary, after scrutiny and removal of defects, if any, in an information or reference, as the case may be, shall place the same before the Commission to form its opinion on existence of a prima facie case. Vide clause (2), in cases of alleged anti-competitive agreements and/or abuse of dominant position, the Commission shall, as far as possible, record its opinion on existence of a prima facie case within sixty days and under clause (3), the Commission shall, as far as possible, hold its first ordinary meeting to consider whether prima facie case exists, within fifteen days of the date of placement of the matter by the Secretary under sub-regulation (1). 35.3.10. Regulation 18 is on issue of direction to cause investigation on prima facie case, under which, where the Commission is of the opinion that a prima facie case exists, the Secretary shall convey the directions of the Commission within the seven days to the Director General to investigate the matter. 35.3.11. 35.3.10. Regulation 18 is on issue of direction to cause investigation on prima facie case, under which, where the Commission is of the opinion that a prima facie case exists, the Secretary shall convey the directions of the Commission within the seven days to the Director General to investigate the matter. 35.3.11. Keeping the above rules and regulations in mind, if we see the present case, what is seen is that the informant had filed the information/complaint, which was numbered as Case No. 03/2011, under Sections 3 and 4 read with Section 19 (1) (a) of the Act on 17.01.2011 along with supplementary information on 27.01.2011, with the Commission against three car companies, namely, (1) Honda Siel Cars India Ltd., (2) Volkswagen India Ltd., and (3) Fiat India Automobiles Ltd., alleging anti-competitive methods/agreements and abuse of dominant position, whereupon, the commission, enquired the said complaint under 19 (1) (a) and, on opining that there existed a prima facie case under Section 26 (1) and recording the said opinion on existence of a prima facie case under Regulation 16 to the effect that anti-competitive practices being adopted by the respondent companies have resulted in denial of market access to independent workshops; that the car buyer is forced to buy, repair/maintenance from the same manufacturer or its authorised dealers and genuine spare parts, diagnostic tools, software and technical infrmation was not being made available by the car manufacturers to independent repair workshops; that the car companies have limited number of authorised service centres; that the dealers appointed by them as a matter of policy refuse to supply the spares in the open market; that the practices being adopted by the companies needed to be further scrutinised to determine whether they restrict the effective competition at each level of automotive aftermarket, directed the Director General vide its order, dated 24.02.2011, to conduct an investigation into the matter and submit a report within a period of 60 days from the date of communication of the order. Immediately on receipt of the order, notices were sent to the above three companies. On the preliminary enquiries made during the course of investigation, it had been gathered that similar practices were being followed by other car manufacturers in India in the areas of after sales service, procurement and sale of spare parts from OESs, setting up of dealerships etc. Immediately on receipt of the order, notices were sent to the above three companies. On the preliminary enquiries made during the course of investigation, it had been gathered that similar practices were being followed by other car manufacturers in India in the areas of after sales service, procurement and sale of spare parts from OESs, setting up of dealerships etc. However, as the said practices were not confined to the said three entities, the case involved a larger issue related to prevalent conduct of the players in the automobile sector and its implication on the consumers at large, it was proposed that the scope of the investigation be expanded to examine the practices in the areas under consideration of all the car manufacturers in India. Accordingly, on 19.04.2011, the second respondent requested the Commission for directions to initiate investigation against all other car manufacturers in India. Pursuant thereto, the Commission considered the request of the second respondent in its meeting held on 26.04.2011 and approved the same to initiate investigation against other car manufacturers also, including the writ petitioners herein. Vide its orders, dated 26.04.2011, the Commission also observed that whenever Commission ordered of investigation in any case, it need not be confined to the parties mentioned in the information; that the investigation was ordered on certain issues and all the parties which were covered by that issue should be investigated and that there was no need to obtain the orders of the Commission on each individual case. Thereafter, the second respondent applied for extension of time on several occasions for submission of the report and the same was granted. At last, the Director General submitted his report on 31.07.2012, concluding that the petitioners had contravened the provisions of the Act. Subsequently, the Additional Director General issued a notice, dated 04.05.2011, under Sections 36 (2) and 41 (2) of the Competition Act,2002, to the petitioner in W.P. Nos. 31808 and 31809 of 2012, with regard to the investigation conducted by his office into certain anti-competitive practices, alleged to be prevalent in the sale, maintenance, service and repair market of the cars manufactured in India. By the said notice, the petitioner was requested to furnish the information/ documents in the office of the third respondent. 35.3.12. 31808 and 31809 of 2012, with regard to the investigation conducted by his office into certain anti-competitive practices, alleged to be prevalent in the sale, maintenance, service and repair market of the cars manufactured in India. By the said notice, the petitioner was requested to furnish the information/ documents in the office of the third respondent. 35.3.12. It is significant to mention here that the prayer/complaint of the informant is not only against the three respondents in the complaint, but the other contravening vehicle manufacturers as well. Further, as per Section 19 (1), the Commission has the power to inquire into any alleged contravention of the provisions contained in sub-section (1) of Section 3 or sub-section (1) of Section 4 either on its own motion or on receipt of any information from any person, consumer or their association or trade association; or on a reference made to it by the Central Government or a State Government or a statutory authority. Moreover, under Section 36, Sub-section (4), the Commission has the power to direct any person to produce before the Director General or the Secretary or an officer authorised by it, such books or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of which may be required for the purposes of the Act and also to furnish to the Director General or the Secretary or any other officer authorised by it with regard to the trade or such other information as may be in his possession in relation to the trade carried on by such person.It may also be added that the impugned proceeding, dated 26.04.2011, is only an inter-communication between the first respondent and the second respondent and it does not specify any particular entity for the action to be taken. Also, the proceeding of third respondent, dated 04.05.2011, is only a notice, calling for certain details from the petitioner company so as to ensure transparency, by which the petitioners are not estopped from carrying on their trade or business. Therefore, it has to be concluded that the impugned proceedings are absolutely intra vires, but not ultra vires the provisions of the Act or the statute, as contended by the writ petitioners. (emphasis supplied) 36. Therefore, it has to be concluded that the impugned proceedings are absolutely intra vires, but not ultra vires the provisions of the Act or the statute, as contended by the writ petitioners. (emphasis supplied) 36. At the time of conclusion of the arguments, learned counsel for the parties produced a copy of the order passed by the Competition Appellate Tribunal in respect of three companies viz., (1) Excel Crop Care Limited, (2) United Phosphorous Limited and (3) Sandhya Organic Chemicals (P) Limited, wherein the Tribunal considered each and every aspect of the matter, from which it would be explicit that the nature of grievances put forth by the petitioners herein would be dealt with by the alternative forum, namely, Competition Appellate Tribunal. 37. A writ petition under Article 226 of the Constitution of India should not be entertained when the statute itself provides for efficacious alternative remedy under the Act, unless exceptional circumstances, such as, violation of fundamental rights, violation of principles of natural justice and ultra vires the rule of law, are made out. In other words, the powers conferred upon the High Court under Article 226 are discretionary in nature, which can be invoked very sparingly, for the enforcement of any fundamental right or legal right, but not for any other rights, in view of the existence of efficacious alternative remedy. The Constitutional Court should insist upon the party to avail the same, instead of invoking the extraordinary writ jurisdiction of the High Court. This does not, however, debar the High Court from granting the appropriate relief to a citizen under peculiar and special facts, notwithstanding the existence of alternative remedy and the existence of special circumstances are required to be noticed before issuance of the direction by the High Court, while invoking the jurisdiction under Article 226. Also, when the issue relates to enforcement of a right or obligation under the statute and specific remedy is provided under the statute, the High Court should not normally entertain a writ petition and interfere with the decision made by the authorities. Similarly, if a statute confers a right and in the same breath provides for a remedy for enforcement of such right, the remedy provided by the statute is an exclusive one. Similarly, if a statute confers a right and in the same breath provides for a remedy for enforcement of such right, the remedy provided by the statute is an exclusive one. Therefore, if a statute imposes a duty on one party to do a certain thing, it creates a right in such persons, who would be injured by its contravention. 38. In the instant case, in the absence of any infringement of the fundamental rights or the principles of natural justice or the rule of law, the questions raised by the petitioners on merits, as to locus standi of the first respondent in passing the order impugned, dated 26.04.2011; unexplained delay by the second respondent in conducting the investigation; and competency of the quorum of the first respondent, are all matters, to be looked into by the Competition Appellate Tribunal under Section 53-B of the Act, in the manner as contemplated. 39. Looked at from any angle, this Court is of the considered view that the writ petitioners are to approach only the Competition Appellate Tribunal to exhaust their statutory remedy under Section 53-B of the Act, but not this Court under Article 226 of the Constitution. Accordingly, as these Writ Petitions did not meet any of the requirements mentioned in paragraphs 34 and 35, as to their maintainability, they are dismissed, as not maintainable. It is open for the petitioners to approach the competent forum viz., Competition Appellate Tribunal, for redressal of their grievances, if they so desire, within a period of six weeks from the date of receipt or production of a copy of this order, and, till such time, the parties to these proceedings shall maintain status quo as on date. It is also made clear that in the event of the approach of the petitioners, the Tribunal shall exclude the period of pendency of these writ petitions, while computating the period of limitation, if any. No costs. Consequently, the connected M.Ps. are closed. Petitions dismissed.