Case Law Details
COMPETITION APPELLATE TRIBUNAL, NEW DELHI
Director General (Investigation and Registration)
Versus
IIPM
UTPE No. 65 of 2007
Date of pronouncement – 05.02.2013
ORDER
1. This complaint, which was originally filed under the provisions of Section 10(a) (i) of the erstwhile Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as “the Act”) complaining of restrictive trade practice against the respondent, was recommended for the investigation by the DG. The DG went on to investigate the matter and submitted a Preliminary Investigation Report (PIR) recommending the full-fledge enquiry by the Commission. It seems that ultimately the complaint was treated to be not against the restrictive trade practice but against the unfair trade practice within the meaning of Section 36-A of the Act. It seems that, after lot of exercise, a Notice of Enquiry was issued which was replied to by the respondents. It must be clarified that respondent No. 1 admittedly is an educational institution even the application by the DG refers to it as an educational institution providing educational services to the student community for consideration in the field of Planning and Management through its various centres situated at Delhi, Mumbai, Pune, Chennai, Bangalore, Ahmedabad and Hyderabad. What baffles us is as to why respondent No. 2 has been joined as a respondent in the matter. Respondent No. 2, namely, ACNielscn ORG-MARG, is engaged in the business of conducting survey, inter alia, with regard to the quality, benefits and uses of various products and services provided by business houses/institutes etc. According to the DG, respondent No. 2 had conducted a survey in respect of the quality, benefits and uses of various institutions imparting education in the field of management, the results of which were published; in ‘Business Today’ dated 16.07.2006. We do not see as to why respondent No. 2 should have been joined as a party because, clearly, there is no complaint against respondent No. 2. Similar is the case with regard to respondent No. 3. Respondent No. 3 happened to be an Editor-in-Chief of ‘Business Today’ magazine. Their only fault was that they published the results of survey carried on by respondent No. 2 which, inter alia, made certain comparisons of quality, benefits and uses of respondent No. 1’s educational courses with the renowned institutions in the field of management.
2. In our opinion, even the respondent No. 3 was not at all a necessary or a proper party. Very strangely, the fourth respondent is the All India Council for Technical Education (AICTE), I.G. Stadium, LP. Estate, New Delhi. We do not see as to what the AICTE has to do with this complaint. Its only role was to give the recommendations to the institutions imparting technical education.
3. Be that as it may, the first issue was with regard to the maintainability of the complaint. By our last order dated 08.01.2013, the first issue was framed as to whether the present proceedings are maintainable or not. This issue was framed in view of the reply filed by respondent No. 1 wherein he had raised the issue of maintainability very specifically. The learned counsel has now come up with an application under Regulation 65(i)(j) of the Monopolies and Restrictive Trade Practices Commission Regulations, 1991 seriously challenging the tenability of this complaint. In that application, the learned counsel for respondent No. 1 has raised mainly two grounds. (The first ground raised is that the MRTP Act is not applicable to the educational institutions.) Learned counsel for respondent No. 1 points out that by the very definition of word ‘service’ in Section 2(r) of the Act read with Section 36-A(l) thereof, the educational institutions stand excluded from the operation of the Act.) In support of his contention, the learned counsel refers to various judgments of the Commission along with the main judgment of the High Court of Karnataka in the matter of NITTE Education Trust v. Union of India [1997] 5 CTJ 229 The learned counsel points out that in Para 44 of this judgment, a specific finding has been given by the Karnataka High Court which is as under :
“44. That as the above Act is not applicable to the matters relating to education and educational institutions, in my opinion, the opposite parties had no jurisdiction and power to issue the impugned notices to the answering respondents dated July 20, 1987, and October 7, 1987, at Annexures “A” and “C” to this writ petition.”
Needless to mention that the notices under the MRTP Act issued by the Commission were quashed by the High Court. Learned counsel for respondent No. 1 then points out that the Full Bench of the Commission in another matter in the case of Director General (Investigation and Registration) v. Holy Angels School 1998 C.T.J. 129 (MRTPC) vide its order dated 15.05.1998, has, inter alia, observed the circumstances in which a ruling of High Court is binding on the MRTP Commission. Our attention was further invited by the learned counsel for respondent No. 1 to the effect that, in number of cases, the Commission has taken the view that the present Act is not applicable to education and educational institutions. These cases are :
1. Holy Angels School (supra)
2. Director General Investigation & Registration v. Universal Trust order dated 8th October, of the MRTP commissioner 1999 CTJ 147 (MRTPC)
3. Arctech Solutions (P) Ltd. v. Aptech Ltd. dated 6th November, 1998, of the MRTP Commission 1998 CTJ 363 (MRTPC)
4. Massodur Rehman Khan v. Dr. Abdul Khari Educational and Chairtable Fund Trust, order dated 25th January, 1999 of the MRTP Commission 1999 CTJ 64 (MRTPC).
5. Modern Trading Company (Delhi) (P.) Ltd. v. Wigan and Leigh College order dated 9th April 1999 of the MRTP Commission 1999 CTJ 191 (MRTP).
6. Director General Investigation & Registration v. Ashu Exports Promoters (P.) Ltd. Order dated 2nd July, 1999 of the MRTP commission 2000 CTJ 73 (MRTPC).
4. Our further attention was invited to the judgment in the case of Modern Trading Company (Delhi) (P.) Ltd. wherein by its order dated 09.04.1999, the Commission had followed the aforementioned order of the Karnataka High Court holding that the Act was not applicable to education and educational institutions. It is pointed out that a Civil Appeal No. 5331/1999 was filed before the Hon’ble Supreme Court by Modern Trading Company (Delhi) Private Limited. Our attention is then invited to the order passed by the Hon’ble Supreme Court dated 11.08.2005 in that Civil Appeal wherein the Hon’ble Supreme Court observed as under:
“The appellant filed an application under Section 12-A of the Monopolies and Restrictive Trade Practices Act, 1969, (for short “the Act”). The Commission exercising its Jurisdiction under the Act has held that the subject-matter of the complaint pertains to education and the Commission has no jurisdiction to entertain the complaint. We agree with the finding recorded by the Commission.
The appeal is dismissed accordingly. No costs.”
The appellant, however, would not be precluded from pursuing any other remedy available to it for redressal of its grievances.”
[Emphasis supplied]
5. Besides this, the learned counsel for respondent No. 1 argued that the word ‘service’ would not include the service rendered by the educational institutions for various reasons including the amendments made to the term ‘service’. In support of this, the learned counsel took us to the history of amendments starting from 1969 up to 1991. When the term ‘service’ was lastly amended by the amendment Act 58 of 1991 w.e.f. 27.09.1991, it was pointed out by the learned counsel for the respondent that the words “of any description” have been deleted from the definition of ‘service’ under the MRTP Act by that amendment and thereby the word ‘service’ has to be read only and only in case of the institutions like banking, financing, insurance, chit fund, real estate, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information. However, the word ‘service’ did not include rendering of any service free of charge or under a contract of personal service. Learned counsel for the respondent very seriously argues that the term ‘service’ cannot be pressed insofar as the educational services are concerned as the amended definition does not include education.
6. As against this, Shri Makheeja, learned counsel for the DG, reiterated that this Commission, in the order dated 28.08.2003 in case of Siddhartha Lamba v. Principal, Sanjivani Rural Education Society College of Engineering 2003 C.T.J. 305 (MRTPC) of the Full Bench of the Commission, had considered the law laid down by the first judgment of Karnataka High Court and also the earlier judgment of this Commission in Holy Angels School’s case (supra) and had taken a view that the provisions of the Act are applicable to the educational institutions also. Learned counsel for the DG says that this judgment was not taken notice of or was not brought to the notice of the Hon’ble Supreme Court or, as the case may be, in other High Courts and, therefore, this judgment should prevail.
7. The learned counsel for the DG further says that the term ‘service’ itself has a wider concept and that the amendments did not, in any manner, suggest that the concept be shortened or being cut only to the services named in the provision.
8. On this backdrop, we have to consider as to whether the present proceedings are maintainable. There cannot be any dispute that Karanataka High Court has specifically held that the provisions of the MRTP Act were not and could not be applicable to the educational institutions. There is no dispute that the present complaint also pertains to the educational institution and its activity of imparting education. When we sec on this backdrop that the judgment of Hon’ble Supreme Court, in no uncertain terms, has agreed with the finding of the Karnataka High Court that the provisions of the MRTP Act are not applicable to the educational institutions and it is only on that basis that the appeal filed by the Modern Trading Company came to be dismissed in Civil Appeal No. 5331 of 1999. It may be that the contrary judgment of Full Bench of the Commission was not pressed into or was not brought to the notice of the Hon’ble Supreme Court but that does not take away the binding effect of the order of Hon’ble Supreme Court, or as the case may be, order of the Karnataka High Court. In that view, we are clearly unable to accept the contention of Shri Makheeja that we must follow the judgment of the Full Bench of the Commission in Siddharth Lamba’s case (supra) and we hold that the aforesaid judgment in Siddharth Lamba’s case has been impliedly overruled in view of the subsequent judgment of Hon’ble Supreme Court.
9. We, therefore, do not wish to go into other aspects of the matter argued by the learned counsel for respondent No. 1 to the effect that the term ‘service’ will not include educational institutions since it is not necessary for us to go into that aspect. On the face of it, the objection as to the tenability must be maintained and is being maintained and, accordingly, the present proceedings are directed to be closed. Notice of Enquiry is discharged with no order as to costs.
