SC to examine CCI jurisdiction on DLF flat owners’ plea

The Supreme Court Wednesday said it will examine whether the Competition Commission of India had the jurisdiction to entertain the plea by flat owners in three DLF residential complexes in Gurgaon who alleged that the real estate giant was exploiting its dominant position on conditions for providing services.

The bench of Justice Sudhansu Jyoti Mukhopadhaya and Justice N.V. Ramana, while making distinction between the “rendering of services” and “imposing the conditions of services”, said they would examine the issue in the light of section 4(2)(a)(1) of the Competition Act, 2002.

The court said if the matter was “rendering of services”, then it would go before the consumer forum.

“Satisfaction with the services provided can be a matter of consumer court,” it said.

Rendering services may not come under the Competition Act, “but imposing the conditions of services may be so whether they are arbitrary, unfair or discriminatory”, the court said, as it directed the hearing of the matter for Feb 18.

Section 4 of the Competition Act prohibits the abuse of dominant position and section 4(2)(a)(1) says there shall be an abuse of dominant position if an enterprise or a group directly or indirectly, imposes unfair or discriminatory condition in purchase or sale of goods or service.

The court said this while hearing a petition by DLF challenging imposition of Rs.630 crore penalty by the CCI for allegedly exploiting its dominant position to the disadvantage of its customers in three projects in Gurgaon.

DLF has assailed the CCI order of Aug 12, 2011, which was sustained by the COMPAT in 2013, saying that the commission could not have imposed penalty based on the three year average of the entire turnover of DLF’s real estate operations in the country.

The real estate giant contended that the penalty should have been restricted to Rs.1,100 crore – the sale price of three housing complexes.

DLF has also challenged the jurisdiction of CCI in entertaining the pleas by the aggrieved flat owners.

The CCI has taken a position that DLF used its dominant position to the disadvantage of the flat allotees.

“It is an exploitation of disadvantaged customers who were trapped,” CCI had told the court.

The association of flat owners and individual flat owners too have moved the apex court

Prior sanction needed for action against officials? SC reserves verdict

supreme courtThe Supreme Court Thursday reserved verdict on the validity of a legal provision that mandates the CBI to seek the government’s prior sanction before proceeding against an officer of the rank of joint secretary or above on charges of corruption.
However, the six-bench constitution bench said that if it had to invalidate section 6A of the Delhi Special Police Establishment Act merely on the grounds of its being arbitrary, then the measure would be referred to a still larger constitution bench of seven judges as there were conflicting judgments on this count.
The constitution bench of Justice R.M. Lodha, Justice A.K. Patnaik, Justice Sudhansu Jyoti Mukhopadhaya, Justice Dipak Misra and Justice Fakkir Mohamed Ibrahim Kalifulla was hearing a 2005 reference by a three judge bench on the validity of section 6A.
Making the reference to the constitution bench, the court in 2005 had said: “In short, the moot question is whether arbitrariness and unreasonableness or manifest arbitrariness and unreasonableness, being facets of article 14 of the Constitution of India are available or not as grounds to invalidate a legislation”.
Reference to the larger bench was made on a petition by politician Subramanian Swamy. The government has resisted the plea seeking to invalidate the section, contending that it needed to protect its senior ranking officers who were involved in crucial decision-making process and they could not be exposed to undue harassment and exercise of police powers by the CBI.
Holding that section 6A, far from frustrating the rule of law in fact furthers the rule of law, the central government has contended that the legislative provision can’t be negated by the courts on the grounds of arbitrariness or unreasonableness unless it violated any of the fundamental rights.
Seeking to demolish the government’s position, counsel Prashant Bhushan asked the court how could the government decide whether the sanction could be given or not when it is itself or its subordinate officers are under cloud.
He wondered why a private citizen could not lodge a complaint against a government officer under the Prevention of Corruption Act as it violated the citizen’s rights and principles under article 21. “Whether approval by the Lokpal and CVC (Central Vigilance Commission) would be sufficient in this matter,” the court inquired as Bhushan said why the government should decide and not the CVC or the Lokpal.

(Source: IANS)

SC asks AG to look into Mumbai society flat owners’ plea

supreme courtThe Supreme Court Monday asked Attorney General GE Vahanvati to look into fresh material presented by owners of unauthorised flats of Mumbai’s Campa Cola residential complex, who are faced with eviction by May 31, 2014, in line with an apex court order.

A bench of Justice Sudhansu Jyoti Mukhopadhaya and Justice Kurian Joseph gave Vahanvati two weeks to look into the new material.

The matter was listed for hearing on Jan 20, after a bench of Justice Mukhopadhaya and Justice V Gopala Gowda Dec 17, 2013, had said that it appeared that earlier a review petition was filed by the applicant for review and recall of the order dated Feb 27, 2013, but dismissed on Oct 22, 2013.

“In view of dismissal of such petition for recall and review, we are, prima facie, of the view that the second Petition for same relief is not maintainable in absence of any liberty obtained by parties in the earlier review application,” it had then said.

Since the counsel for the petitioner Midtown Apartments Co-operative Housing Society Ltd. had sought time for seeking instructions, the court had directed the listing of matter on Jan 20.

The apex court by its November 19 order had set a May 31, 2014, deadline for owners of 96 unauthorised flats in Mumbai-based Campa Cola society to vacate their flats.

The Nov 19, 2013 order was passed after apex court taking suo motu cognizance of the newspaper reports that the BrihanMumbai Municipal Corporation, in pursuance to an earlier order of apex court, had moved in to demolish 96 flats of the Campa Cola housing complex.

The apex court had asked the Attorney General to submit a proposal in consultation with the flat owners as to how to deal with the situation.

However, the court set the deadline of May 31 for the compliance of its Feb 27, 2013 verdict, after on November 19 Vahanvati informed the bench headed by Justice GS Singhvi (now retired) that no specific proposal can be given to find an alternate solution to save unauthorized flat owners.

(Source: IANS)

SC gives cement makers more time to pay part of penalty

The Supreme Court Wednesday declined to interfere with the Competition Appellate Tribunal (COMPAT) order directing 11 cement makers to deposit 10 percent of Rs.6,200 crore penalty imposed on them by the Competition Commission of India (CCI) for alleged cartelisation to control cement prices.

The apex court bench of Justice Gyan Sudha Misra and Justice Sudhansu Jyoti Mukhopadhaya, however, extended the deadline for depositing the part-penalty by a week from the June 16 to June 24.

The COMPAT had asked the cement manufacturers to deposit 10 percent of the penalty imposed on each one of them by June 16, saying that in the event of a failure their petitions would be deemed to have been dismissed.

The court said this amount to be deposited with COMPAT by each of the cement manufacturer would be put in term deposits in separate accounts in the name of each of the companies in nationalised bank.

The competition watchdog CCI had taken cognizance of alleged cartelization in the years 2009-2011. The average increase in the cement prices was 42 percent.

As some of counsel appearing for various cement companies questioned the quantum of penalty imposed on them on grounds that the profits from their their ventures too were taken for calculating the penalty, the court said all these issues could be raised before the COMPAT.

Senior counsel Abhishek Manu Singhvi, appearing for one of the cement manufacturers, assailed the CCI’s order which equated to price parallelism to cartelization.

Singhvi told the court that if one cement manufacturer pulled down the price, then others too had to follow in due course to remain in the competitive market.

The court said to determine whether there was cartelisation or not it will have to scan the prices of cement over the years.

The CCI by its June 20, 2012, order imposed the penalty on 11 cement manufacturing companies for allegedly forming a cartel to manipulate the market price of cement.

The cement manufacturers contended that COMPAT failed to consider their plea that the competition watchdog CCI’s order imposing hefty penalty was contrary to the material facts and factors which flew into the findings of the cartelization.

The tribunal had asked the companies to deposit 10 percent of the penalty imposed by the watchdog.

(Source:IANS)

SC notice on cement makers’ plea

The Supreme Court Monday issued notice on petitions of four cement manufacturers contesting an order of the Competition Appellate Tribunal (COMPAT) asking them to deposit a part of the penalty slapped on them for alleged cartelisation and manipulation of cement prices.

The apex court bench of Justice Gyan Sudha Misra and Justice Sudhansu Jyoti Mukhopadhaya issued notice after senior counsel Abhishek Munu Singhvi and others appearing for cement manufacturers told the court that the order passed by the Competition Commission of India (CCI) imposing a penalty of Rs.6,200 crore on 11 companies was based on assumption of alleged cartelisation.

As counsel appearing for the CCI defended the decision, Justice Mukhopadhaya said you could have reduced the prices by five percent but by imposing the penalty the money would go to exchequer and would not result in any benefit to the people.

Cement manufacturing companies UltraTech Cements Ltd, Jaiprakash Associates Ltd., Century Textiles and Industries Ltd. and Madras Cement Limited have challenged the May 17 interim order of the COMPAT asking them and seven other cement manufacturers to deposit 10 percent of Rs.6,200 crore penalty imposed on them by watchdog Competition Commission of India (CCI).

The CCI by its June 20, 2012, order imposed the penalty on 11 cement manufacturing companies for allegedly forming a cartel to manipulate the market price of cement.

The cement manufacturers contended that COMPAT failed to consider their plea that the competition watchdog CCI’s order imposing hefty penalty was contrary to the material facts and factors which flew into the findings of the cartelization.

The tribunal had asked the companies to deposit 10 percent of the penalty imposed by the watchdog.

(Source:IANS)

Supreme Court gets three new judges

The number of judges of the Supreme Court increased to 29 from 26 after three judges, including a woman judge, were sworn-in Tuesday.

 Justice Sudhansu Jyoti Mukhopadhaya, Justice Ranjana Prakash Desai and Justice Jagdish Singh Khehar were administered the oath of office by Chief Justice S.H. Kapadia.

 With this the strength of women judges in the apex court rose to two. The other woman judge is Justice Gyan Sudha Misra. The Supreme Court got its first woman judge, Fatima Bibi, in 1989.

Before elevation to the apex court, Justice Mukhopadhaya was the chief justice of the Gujarat High Court, Justice Desai was a judge of the Bombay High Court and Justice Khehar was the chief justice of the Karnataka High Court.

The sanctioned strength of the Supreme Court is 31 judges, including the chief justice of India. Four apex court judges will retire by Oct 15.