Feature of Brahm Dutt v. UOI
SAIL
difference
Salient Feature Impact on the principal legislation
of judgments Substantial Amendments beyond the
subject matter of the Writ
Delay in implementing by nearly 6 years
Facts As per the Act, an expert body, the
Competition Commission of India (the CCI)
consisting of a chairman and not more than
ten other members was to be set up to deal
with the above provisions, namely,
adjudicatory, regulatory and advisory in
nature.
The various provisions of the Act indicate
that the CCI was required to perform
adjudicatory functions, even though the
appointment of the Chairman was neither
from the higher Judicial body nor was the
Chief Justice of India or his nominee
involved in his selection.
Issues It was also challenged that there is
usurpation of judicial power and
conferment of the same on the non-
judicial body.
CCI v.
Section 26 (1) vs 26 (2)
Final Order vs interim orders
Prima facie of 26(1) and 33
Roles and powers of DG
Nature & function of the Commission
Expeditious action expected
Adjudicatory, Regulatory, Advisory
In October 2009, Jindal Steel & Power Ltd. (JSPL)
filed information under Section 19 read with
Section 26(1) of the Act before the Commission
alleging that M/s. Steel Authority of India Ltd.
(SAIL) had, inter alia, entered into an exclusive
supply agreement with Indian Railways for the
supply of rails. SAIL was alleged to have abused its
dominant position in the market (Section 4),
deprived others of fair competition by entering into
an anti-competitive agreement (Section 3) and
therefore, acted in violation of this law. SAIL
sought time to file the relevant information but the
Commission (without considering any further
information on record) opined that there, in fact
exists a prima facie case which requires
investigation by the Director General (DG). SAIL
questioned the legality of the Commissions order
before the Tribunal and the Commission applied
for impleadment in the matter.
Legality of the Commissions order before the
Tribunal
Maintainability of the appeal before the
Tribunal since the order under appeal before
 Appointment of the Chairman should be
by the higher Judicial body i.e. the Chief
Justice of India or his nominee
Rulings The CCI was more of a regulatory body
that requires expertise in the field and as
such should not be supplied by Members
of the Judiciary, who can adjudicate upon
matters in dispute
so long as the power of judicial reviews
of the High Courts and Supreme Court
are not taken away or impeded, the right
of the Government to appoint the CCI
Chairman in terms of the Act could not
be successfully be challenged on the
principle of Separation of Powers
recognized by the Constitution of India
Creation of two separate bodies with
expertise (based on doctrine of
separation of powers), that is, (i)
Advisory and Regulatory, and (ii) the
other as Adjudicatory, followed by an
Appellate Body.
the Tribunal amounted to a direction to
conduct investigation and that it did not fall
within the purview of Section 53A of the Act.
Through this judgment, the Honble Court
has put to rest various controversies
regarding the interpretation of the
provisions of the Act, in particular the
demarcation of the powers of the
Competition Appellate Tribunal (Tribunal)
and the Competition Commission of India
(Commission) and also strict directions for
expeditious disposal of ex post enquiries
Right to reason is an indispensable part of a
sound system of judicial review and
accordingly the Commission was directed to
give reasons while passing any order,
direction or taking any decision. The appeal
therefore, was held to be maintainable in
terms of Section 53A of the Act.
The Supreme Court has held that the
Commission had no statutory duty to issue
notice or grant a hearing at the stage of
formation of a prima facie opinion in terms
of Section 26(1) of the Act.
When Section 26(1) of the Act is read with
Regulation 17(2) which empowers the
Commission to invite the information
provider and such other person, as is
necessary, for a preliminary conference to
aid in formation of a prima facie opinion,
there is nothing to suggest that the
 Commission is obliged to issue notice or
grant a hearing to the affected parties.
Section 33 uses the word inquiry and
according to Regulation 18(2), inquiry
should be deemed to have commenced when
a direction has been issued to the DG under
Section 26(1) to conduct investigation. The
words inquiry and investigation are quite
distinguishable which is clear from the
various provisions of the Act as well as the
scheme framed thereunder. The former is a
definite expression of the satisfaction
recorded by the Commission upon due
application of mind while the latter is a
tentative view at that stage.
Therefore, the combined reading of the
above provisions leads to the obvious
conclusion that the power to pass a
temporary restraint order under Section 33
of the Act can only be exercised by the
Commission when it has formed a prima
facie opinion and directed investigation in
terms of Section 26(1) of the Act.
The Honble Supreme Court has partly
agreed with the view taken by the Tribunal
that, where proceedings are initiated suo
moto by the Commission, the principles of
fairness demand that such party should be
heard before passing any orders and this
makes the Commission a necessary party in
such proceedings before the Tribunal.
Impact on the The main function of the expert body was CCI was directed to give reasons while
Law reduced to regulatory in nature vide
amendment in 2007
An appellate body was constituted which
essentially be a judicial body conforming
to the consent of Separation of Judicial
powers as recognized by the Apex Court.
2007 Amendment was brought forward
by govt. Following changes are recorded:
i) The Commission to be an expert body
which will function as a market
regulator for preventing anti
competitive practices in the country
and would also has advisory role and
advocacy functions.
ii) The Commission to function as
collegiums and its decisions would be
based on simple majority. Omits
power of the Commission to award
compensation to parties against
proven anti competitive practices
indulged in by enterprises.
iii) Allows continuation of the MRTP
Commission till two years after the
constitution of the Commission for
trying pending cases under the MRTP
Act and to dissolve the same
thereafter.
iv) Notification of all combinations i.e.
Mergers, Acquisitions and
Amalgamations to the Commission
made compulsory.
passing any order, direction or taking any
decision i.e. at least
i) expressing its mind in certain terms
that a prima facie view exists and
ii) requiring issuance of directions for
investigation to the DG.
Determined that:-
Section 26 (1) and (2) of the Act. It has held
that an order under Section 26 (2) is
conclusive in nature as it puts an end to the
proceedings leading to determination of
rights of the concerned parties, and thus is
specifically appealable under Section 53A of
the Act.
However, the direction of the Commission
under Section 26(1) of the Act is merely an
administrative direction to its investigative
arm without acting under the scope of its
adjudicatory functions thus not appealable
The Commission after receiving the report
from the DG is not only expected to forward
the copy of the report, issue notice, invite
objections or suggestions from the
informant, Central Government, State
Government, Statutory Authorities or the
parties concerned, but also to provide an
opportunity of hearing to the parties before
arriving at any final conclusion under
Section 26(7) or 26(8) of the Act, as the case
may be.
The Commission is required to perform
inquisitorial and regulatory functions in
v) Establishment of a Competition
Appellate Tribunal with a three
member Quasi judicial body to be
headed by a retired or serving judge
of the Supreme Court or Chief Justice
of High Court to hear and dispose
appeals against any direction issued
or decision made or order passed by
the Commission.
The scope and power of the Commission to
order to form a prima facie opinion under
Section 26(1) of the Act and that is different
from the adjudicatory function performed by
it under Section 26(2) of the Act. Therefore,
the functioning of the Commission under
Section 26(1) is a mere fact finding enquiry
which has no effect on the determination of
the rights of the parties concerned and
provides discretion to the Commission for
grant of hearing to the affected parties.
issue interim orders under Section 33 of the
Act, should be exercised sparingly and under
compelling and exceptional circumstances.