# SAMIR AGRAWAL v. COMPETITION COMMISSION OF INDIA & ORS

- **Citation:** [2020] 13 S.C.R. 1044
- **Court:** Supreme Court of India
- **Decided:** 2020-12-15
- **Case number:** Civil Appeal No. 3100 of 2020
- **Bench:** Rohinton Fali Nariman, K. M. Joseph, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/samir-agrawal-v-competition-commission-of-india-ors-34546
- **Pages:** 30

## Headnote

Competition Act, 2002:
ss. 3, 19 and 26 - Application u/s. 26(2) - Seeking initiation
of inquiry - Alleging violation of s. 3 - Competition Commission of
India (CCI) dismissed the case holding that no case of contravention
of provisions of s. 3 were made out - Appellate Tribunal held that
the informant had no locus standi to move the CCI - Appeal to
Supreme Court - Held: When CCI performs inquisitorial functions,
the doors of approaching the CCI and the appellate authority must
be kept wide open in public interest, so as to subserve the high
public purpose of the Act - The provisions of the Act and
Competition Commission Regulations show that 'Any person' may
provide information to CCI irrespective of whether such person is
personally affected or not - Hence, the informant was competent to
move the CCI - However, no case of contravention of provision in
s. 3 is made out - Competition Commission Regulations, 2009 -
Regulations 10, 25 and 35.
Words and Phrases:
'Person' - Definition of - In the context of s. 2(l) of
Competition Act, 2002.
Disposing of the appeal, the Court
HELD: 1. A reading of the provisions of the Competition
Act, 2002 and the Competition Commission of India (General)
Regulations, 2009 would show that "any person" may provide
information to the Competition Commission of India (CCI), which
may then act upon it in accordance with the provisions of the Act.
In this regard, the definition of "person" in section 2(l) of the
Act, is an inclusive one and is extremely wide, including
[2020] 13 S.C.R. 1044
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individuals of all kinds and every artificial juridical person. This
may be contrasted with the definition of "consumer" in section
2(f) of the Act, which makes it clear that only persons who buy
goods for consideration, or hire or avail of services for a
consideration, are recognised as consumers. [Para 13][1066-EF]
1.2 A look at section 19(1) of the Act would show that the
Act originally provided for the "receipt of a complaint" from any
person, consumer or their association, or trade association. This
expression was then substituted with the expression "receipt of
any information in such manner and" by the 2007 Amendment.
This substitution is not without significance. Whereas, a complaint
could be filed only from a person who was aggrieved by a particular
action, information may be received from any person, obviously
whether such person is or is not personally affected. This is for
the reason that the proceedings under the Act are proceedings
in rem which affect the public interest. That the CCI may inquire
into any alleged contravention of the provisions of the Act on its
own motion, is also laid down in section 19(1) of the Act. Further,
even while exercising suo motu powers, the CCI may receive
information from any person and not merely from a person who is
aggrieved by the conduct that is alleged to have occurred. This
also follows from a reading of section 35 of the Act, in which the
earlier expression "complainant or defendant" has been
substituted by the expression, "person or an enterprise," setting
out that the informant may appear either in person, or through
one or more agents, before the CCI to present the information
that he has gathered. [Para 14][1066-G-H; 1067-A-C]
1.3 Section 45 of the Act is a deterrent against persons
who provide information to the CCI, mala fide or recklessly,
inasmuch as false statements and omissions of material facts are
punishable with a penalty which may extend to the hefty amount
of rupees one crore, with the CCI being empowered to pass other
such orders as it deems fit. This, and the judicious use of heavy
costs being imposed when the information supplied is either
frivolous or mala fide, can keep in check what is described as
the growing tendency of persons being "set up" by rivals in the
trade. [Para 15][1067-C-E]
SAMIR AGRAWAL v. COMPETITION COMMISSION OF INDIA
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1.4 The 2009 R

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SAMIR AGRAWAL
v.
COMPETITION COMMISSION OF INDIA & ORS.
(Civil Appeal No. 3100 of 2020)
DECEMBER 15, 2020
[ROHINTON FALI NARIMAN, K. M. JOSEPH
AND KRISHNA MURARI, JJ.]
Competition Act, 2002:
ss. 3, 19 and 26 - Application u/s. 26(2) - Seeking initiation
of inquiry - Alleging violation of s. 3 - Competition Commission of
India (CCI) dismissed the case holding that no case of contravention
of provisions of s. 3 were made out - Appellate Tribunal held that
the informant had no locus standi to move the CCI - Appeal to
Supreme Court - Held: When CCI performs inquisitorial functions,
the doors of approaching the CCI and the appellate authority must
be kept wide open in public interest, so as to subserve the high
public purpose of the Act - The provisions of the Act and
Competition Commission Regulations show that 'Any person' may
provide information to CCI irrespective of whether such person is
personally affected or not - Hence, the informant was competent to
move the CCI - However, no case of contravention of provision in
s. 3 is made out - Competition Commission Regulations, 2009 -
Regulations 10, 25 and 35.
Words and Phrases:
'Person' - Definition of - In the context of s. 2(l) of
Competition Act, 2002.
Disposing of the appeal, the Court
HELD: 1. A reading of the provisions of the Competition
Act, 2002 and the Competition Commission of India (General)
Regulations, 2009 would show that "any person" may provide
information to the Competition Commission of India (CCI), which
may then act upon it in accordance with the provisions of the Act.
In this regard, the definition of "person" in section 2(l) of the
Act, is an inclusive one and is extremely wide, including
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individuals of all kinds and every artificial juridical person. This
may be contrasted with the definition of "consumer" in section
2(f) of the Act, which makes it clear that only persons who buy
goods for consideration, or hire or avail of services for a
consideration, are recognised as consumers. [Para 13][1066-EF]
1.2 A look at section 19(1) of the Act would show that the
Act originally provided for the "receipt of a complaint" from any
person, consumer or their association, or trade association. This
expression was then substituted with the expression "receipt of
any information in such manner and" by the 2007 Amendment.
This substitution is not without significance. Whereas, a complaint
could be filed only from a person who was aggrieved by a particular
action, information may be received from any person, obviously
whether such person is or is not personally affected. This is for
the reason that the proceedings under the Act are proceedings
in rem which affect the public interest. That the CCI may inquire
into any alleged contravention of the provisions of the Act on its
own motion, is also laid down in section 19(1) of the Act. Further,
even while exercising suo motu powers, the CCI may receive
information from any person and not merely from a person who is
aggrieved by the conduct that is alleged to have occurred. This
also follows from a reading of section 35 of the Act, in which the
earlier expression "complainant or defendant" has been
substituted by the expression, "person or an enterprise," setting
out that the informant may appear either in person, or through
one or more agents, before the CCI to present the information
that he has gathered. [Para 14][1066-G-H; 1067-A-C]
1.3 Section 45 of the Act is a deterrent against persons
who provide information to the CCI, mala fide or recklessly,
inasmuch as false statements and omissions of material facts are
punishable with a penalty which may extend to the hefty amount
of rupees one crore, with the CCI being empowered to pass other
such orders as it deems fit. This, and the judicious use of heavy
costs being imposed when the information supplied is either
frivolous or mala fide, can keep in check what is described as
the growing tendency of persons being "set up" by rivals in the
trade. [Para 15][1067-C-E]
SAMIR AGRAWAL v. COMPETITION COMMISSION OF INDIA
& ORS.
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1.4 The 2009 Regulations also point in the same direction,
inasmuch as Regulation 10, does not require the informant to
state how he is personally aggrieved by the contravention of the
Act, but only requires a statement of facts and details of the alleged
contravention to be set out in the information filed. Also,
Regulation 25 shows that public interest must be foremost in the
consideration of the CCI when an application is made to it in
writing that a person or enterprise has substantial interest in the
outcome of the proceedings, and such person may therefore be
allowed to take part in the proceedings. What is also extremely
important is Regulation 35, by which the CCI must maintain
confidentiality of the identity of an informant on a request made
to it in writing, so that such informant be free from harassment
by persons involved in contravening the Act. [Para 16][1067-EG]
1.5 Given the context of the Act in which the CCI and the
NCLAT deal with practices which have an adverse effect on
competition in derogation of the interest of consumers, it is clear
that the Act vests powers in the CCI and enables it to act in rem,
in public interest. This would make it clear that a "person
aggrieved" must, in the context of the Act, be understood widely
and not be constructed narrowly. Further, it is not without
significance that the expressions used in Sections 53B and 53T
of the Act are "any person", thereby signifying that all persons
who bring to the CCI information of practices that are contrary
to the provisions of the Act, could be said to be aggrieved by an
adverse order of the CCI in case it refuses to act upon the
information supplied. By way of contrast, Section 53N(3) speaks
of making payment to an applicant as compensation for the loss
or damage caused to the applicant as a result of any contravention
of the provisions of Chapter II of the Act, having been committed
by an enterprise. By this sub-section, clearly, therefore, "any
person" who makes an application for compensation, under subsection (1) of Section 53N of the Act, would refer only to persons
who have suffered loss or damage, thereby, qualifying the
expression "any person" as being a person who has suffered loss
or damage. Thus, the preliminary objections against the
Informant/Appellant filing Information before the CCI and filing
an appeal before the NCLAT are rejected. [Para 20][1069-E-H;
1070-A-B]
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1.6 When the CCI performs inquisitorial, as opposed to
adjudicatory functions, the doors of approaching the CCI and the
appellate authority, i.e., the NCLAT, must be kept wide open in
public interest, so as to subserve the high public purpose of the
Act. [Para 22][1073-D-E]
A. Subash Babu v. State of A.P. (2011) 7 SCC 616 :
[2011] 9 SCR 453; Competition Commission of India v.
Steel Authority of India (2010) 10 SCC 744 : [2010] 11
SCR 112 - relied on.
Adi Pherozshah Gandhi v. H.M. Seervai, Advocate
General of Maharashtra (1970) 2 SCC 484 : [1971] 1
SCR 863 - distinguished.
2. In the concurrent findings of fact of the CCI and the
NCLAT, it has been found that Ola and Uber do not facilitate
cartelization or anti-competitive practices between drivers, who
are independent individuals, who act independently of each other,
so as to attract the application of Section 3 of the Act, as has been
held by both the CCI and the NCLAT. There is no reason to
interfere with these findings. [Para 23][1073-E-F]
Case Law Reference
[1971] 1 SCR 863
distinguished
Para 18
[2011] 9 SCR 453
relied on
Para 19
[2010] 11 SCR 112
relied on
Para 21
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3100
of 2020.
From the Judgment and Order dated 29.05.2020 of the National
Company Law Appellate Tribunal in Competition Appeal (AT) No. 11 of
2019.
Balbir Singh, ASG Dr. Abhishek Manu Singhvi, Amit Sibal, Sr.
Advs., Naval Chopra, Anuj Berry, Rohan Arora, Aman Singh Sethi, PSS
Bhargava, Ms. Anjali Kumar, Devarsh Kotak, Shardul S Shroff, Arjun
Krishnan, Shyam Gopal, Ms. Khushboo Mittal, Rajshekhar Rao,
Ms. Nisha Kaur Uberoi, Gautam Chawla, Akshay Nanda, Ms. Ankita
Dhawan, Sonal Sarda, Karthik Sundar, Avneesh Arputham, Advs. for
the appearing parties.
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Petitioner-in-person.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. The present appeal is at the instance of an Informant who
describes himself as an independent practitioner of the law. The Appellant/
Informant, by an Information filed on 13.08.2018 ["the Information"],
sought that the Competition Commission of India ["CCI"] initiate an
inquiry, under section 26(2) of the Competition Act, 2002 ["the Act"],
into the alleged anti-competitive conduct of ANI Technologies Pvt. Ltd.
["Ola"], and Uber India Systems Pvt. Ltd., Uber B.V. and Uber
Technologies Inc. [together referred to as "Uber"], alleging that they
entered into price-fixing agreements in contravention of section 3(1)
read with section 3(3)(a) of the Act, and engaged in resale price
maintenance in contravention of section 3(1) read with section 3(4)(e)
of the Act. According to the Informant, Uber and Ola provide radio taxi
services and essentially operate as platforms through mobile applications
["apps"] which allow riders and drivers, that is, two sides of the platform,
to interact. A trip's fare is calculated by an algorithm based on many
factors. The apps that are downloaded facilitate payment of the fare by
various modes.
2. The Informant alleged that due to algorithmic pricing, neither
are riders able to negotiate fares with individual drivers for rides that are
booked through the apps, nor are the drivers able to offer any discounts.
Thus, the pricing algorithm takes away the freedom of riders and drivers
to choose the best price on the basis of competition, as both have to
accept the price set by the pricing algorithm. As per the terms and
conditions agreed upon between Ola and Uber with their respective
drivers, despite the fact that the drivers are independent entities who are
not employees or agents of Ola or Uber, the driver is bound to accept
the trip fare reflected in the app at the end of the trip, without having any
discretion insofar as the same is concerned. The drivers receive their
share of the fare only after the deduction of a commission by Ola and
Uber for the services offered to the rider. Therefore, the Informant
alleged that the pricing algorithm used by Ola and Uber artificially
manipulates supply and demand, guaranteeing higher fares to drivers
who would otherwise compete against one and another. Cooperation
between drivers, through the Ola and Uber apps, results in concerted
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action under section 3(3)(a) read with section 3(1) of the Act. Thus, the
Informant submitted that the Ola and Uber apps function akin to a trade
association, facilitating the operation of a cartel. Further, since Ola and
Uber have greater bargaining power than riders in the determination of
price, they are able to implement price discrimination, whereby riders
are charged on the basis of their willingness to pay and as a result,
artificially inflated fares are paid. Various other averments qua resale
price maintenance were also made, alleging a contravention of section
3(4)(e) of the Act.
3. The CCI by its Order dated 06.11.2018, under section 26(2) of
the Act, discussed the Information provided by the Appellant/Informant
and held:
"13. At the outset, it is highlighted that though the Commission
has dealt with few cases in this sector, the allegations in the present
case are different from those earlier cases. The present case
alleges that Cab Aggregators have used their respective algorithms
to facilitate price-fixing between drivers. The Informant has not
alleged collusion between the Cab Aggregators i.e. Ola and Uber
through their algorithms; rather collusion has been alleged on the
part of drivers through the platform of these Cab Aggregators,
who purportedly use algorithms to fix prices which the drivers are
bound to accept.
xxx xxx xxx
15. In the conventional sense, hub and spoke arrangement refers
to exchange of sensitive information between competitors through
a third party that facilitates the cartelistic behaviour of such
competitors. The same does not seem to apply to the facts of the
present case. In case of Cab Aggregators model, the estimation
of fare through App is done by the algorithm on the basis of large
data sets, popularly referred to as 'big data'. Such algorithm
seemingly takes into account personalised information of riders
along with other factors e.g. time of the day, traffic situation, special
conditions/events, festival, weekday/weekend which all determine
the demand-supply situation etc. Resultantly, the algorithmically
determined pricing for each rider and each trip tends to be different
owing to the interplay of large data sets. Such pricing does not
appear to be similar to the 'hub and spoke' arrangement as
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understood in the traditional competition parlance. A hub and spoke
arrangement generally requires the spokes to use a third party
platform (hub) for exchange of sensitive information, including
information on prices which can facilitate price fixing. For a cartel
to operate as a hub and spoke, there needs to be a conspiracy to
fix prices, which requires existence of collusion in the first place.
In the present case, the drivers may have acceded to the
algorithmically determined prices by the platform (Ola/Uber), this
cannot be said to be amounting to collusion between the drivers.
In the case of ride-sourcing and ride-sharing services, a hub-andspoke cartel would require an agreement between all drivers to
set prices through the platform, or an agreement for the platform
to coordinate prices between them. There does not appear to be
any such agreement between drivers inter-se to delegate this pricing
power to the platform/Cab Aggregators. Thus, the Commission
finds no substance in the first allegation raised by the Informant.
xxx xxx xxx
17. ...In case of app-based taxi services, the dynamic pricing
can and does on many occasions drive the prices to levels much
lower than the fares that would have been charged by independent
taxi drivers. Thus, there does not seem to be any fixed floor price
that is set and maintained by the aggregators for all drivers and
the centralized pricing mechanism cannot be viewed as a vertical
instrument employed to orchestrate price-fixing cartel amongst
the drivers...
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18. Based on the foregoing discussion, the allegations raised by
the Informant with regard to price fixing under section 3(3)(a)
read with section 3(1), resale price maintenance agreement under
section 3(4)(e) read with section 3(1). Moreover, the Commission
observes that existence of an agreement, understanding or
arrangement, demonstrating/indicating meeting of minds, is a sine
qua non for establishing a contravention under Section 3 of the
Act. In the present case neither there appears to be any such
agreement or meeting of minds between the Cab Aggregators
and their respective drivers nor between the drivers inter-se. In
result thereof, no contravention of the provisions of Section 3 of
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the Act appears to be made out given the facts of the present
case.
19. Further, the allegation as regards price discrimination also
seems to be misplaced and unsupported by any evidence on record.
Price discrimination can perhaps be scrutinised under Section 4
of the Act, which has not been alleged by the Informant. Imposition
of discriminatory price is prohibited under Section 4(2)(a)(ii) of
the Act only when indulged in by a dominant enterprise. It is not
the Informant's case that any of the OPs is dominant in the appbased taxi services market. Given this, the Commission does not
find it appropriate to delve into such analysis given that the market
in question features two players, Ola as well as Uber, none of
which is alleged to be dominant. Further, the provisions of the Act
clearly stipulate dominant position by only one enterprise or one
group and does not recognise collective dominance. This position
was amply made clear in Case Nos. 6 & 74 of 2015 and later
reiterated in Case Nos. 25, 26, 27 & 28 of 2017, both matters
pertaining to the Cab Aggregators market. Thus, given these facts
and legal position, the Commission rejects the allegation of the
Informant with regard to price discrimination.
20. ...The situation of cement manufacturers colluding through a
trade association is different from an App providing taxi/cab
services. If drivers were colluding using an App as a platform, the
said arrangement would have amounted to cartelisation; however,
this cannot be equated with the facts of the present cases as
demanded by the Informant. Ola and Uber are not an association
of drivers, rather they act as separate entities from their respective
drivers. In the present situation, a rider books his/her ride at any
given time which is accepted by an anonymous driver available in
the area, and there is no opportunity for such driver to coordinate
its action with other drivers. This cannot be termed as a cartel
activity/conduct through Ola/Uber's platform. Thus, the present
case is different from the Cement case, not only with regard to
adoption of digital App but also with regard to other relevant
aspects as elucidated hereinbefore.
xxx xxx xxx
23. Based on the foregoing, the Commission is of the view that
no case of contravention of the provisions of Section 3 has been
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made out and the matter is accordingly closed herewith under
Section 26(2) of the Act."
4. The Appellant/Informant, being aggrieved by the Order of the
CCI, filed an appeal before the National Company Law Appellate Tribunal
["NCLAT"] which resulted in the impugned judgment dated 29.05.2020.
This judgment recorded that the point as to resale price maintenance
was not pressed before it, after which it delved into the locus standi of
the Appellant to move the CCI. After setting out section 19 of the Act,
the NCLAT held:
"16. It is true that the concept of locus standi has been
diluted to some extent by allowing public interest litigation,
class action and actions initiated at the hands of consumer
and trade associations. Even the whistle blowers have been
clothed with the right to seek redressal of grievances
affecting public interest by enacting a proper legal
framework. However, the fact remains that when a statute
like the Competition Act specifically provides for the mode
of taking cognizance of allegations regarding contravention
of provisions relating to certain anti-competitive agreement
and abuse of dominant position by an enterprise in a
particular manner and at the instance of a person apart from
other modes viz. suo motu or upon a reference from the
competitive government or authority, reference to receipt
of any information from any person in section 19(1) (a) of
the Act has necessarily to be construed as a reference to a
person who has suffered invasion of his legal rights as a
consumer or beneficiary of healthy competitive practices.
Any other interpretation would make room for unscrupulous
people to rake issues of anti-competitive agreements or
abuse of dominant position targeting some enterprises with
oblique motives. In the instant case, the Informant claims to be
an Independent Law-Practitioner. There is nothing on the record
to show that he has suffered a legal injury at the hands of Ola and
Uber as a consumer or as a member of any consumer or trade
association. Not even a solitary event of the Informant of being a
victim of unfair price fixation mechanism at the hands of Ola and
Uber or having suffered on account of abuse of dominant position
of either of the two enterprises have been brought to the notice of
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this Appellate Tribunal. We are, therefore, constrained to hold
that the Informant has no locus standi to maintain an action qua
the alleged contravention of Act."
(emphasis in original)
5. Despite having held that the Informant had no locus standi to
move the CCI, the NCLAT went into the merits of the case and held:
"17. Assuming though not accepting the proposition that the
Informant has locus to lodge information qua alleged contravention
of the Act and appeal at his instance is maintainable, on merits
also we are of the considered opinion that business model of Ola
and Uber does not support the allegation of Informant as regards
price discrimination. According to Informant, the Cab Aggregators
used their respective algorithms to facilitate price fixing between
drivers. It is significant to notice that there is no allegation of
collusion between the Cab Aggregators through their algorithms
which necessarily implies an admission on the part of Informant
that the two taxi service providers are operating independent of
each other. It is also not disputed that besides Ola and Uber there
are other players also in the field who offer their services to
commuters/ riders in lieu of consideration. It emerges from the
record that both Ola and Uber provide radio taxi services on
demand. A consumer is required to download the app before he is
able to avail the services of the Cab Aggregators. A cab is booked
by a rider using the respective App of the Cab Aggregators which
connects the rider with the driver and provides an estimate of
fare using an algorithm. The allegation of Informant that the drivers
attached to Cab Aggregators are independent third party service
provider and not in their employment, thereby price determination
by Cab Aggregators amounts to price fixing on behalf of drivers,
has to be outrightly rejected as no collusion inter se the Cab
Aggregators has been forthcoming from the Informant. The
concept of hub and spoke cartel stated to be applicable to
the business model of Ola and Uber as a hub with their
platforms acting as a hub for collusion inter se the spokes
i.e. drivers resting upon US Class Action Suit titled
"Spencer Meyer v. Travis Kalanick" has no application as
the business model of Ola and Uber (as it operates in India)
does not manifest in restricting price competition among
SAMIR AGRAWAL v. COMPETITION COMMISSION OF INDIA
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drivers to the detriment of its riders. The matter relates to
foreign antitrust jurisdiction with different connotation and
cannot be imported to operate within the ambit and scope
of the mechanism dealing with redressal of competition
concerns under the Act. It is significant to note that the Informant
in the instant case has alleged collusion on the part of drivers
through the platform of the Cab Aggregators who are stated to be
using their algorithms to fix prices which are imposed on the
drivers. In view of allegation of collusion inter se the drivers through
the platform of Ola and Uber, it is ridiculous on the part of Informant
to harp on the tune of hub and spoke raised on the basis of law
operating in a foreign jurisdiction which cannot be countenanced.
The argument in this core is repelled.
Admittedly, under the business model of Ola, there is no
exchange of information amongst the drivers and Ola. The taxi
drivers connected with Ola platform have no inter se connectivity
and lack the possibility of sharing information with regard to the
commuters and the earnings they make out of the rides provided.
This excludes the probability of collusion inter se the drivers through
the platform of Ola. In so far as Uber is concerned, it provides a
technology service to its driver partners and riders through the
Uber App and assist them in finding a potential ride and also
recommends a fare for the same. However, the driver partners
as also the riders are free to accept such ride or choose the App
of competing service, including choosing alternative modes of
transport. Even with regard to fare though Uber App would
recommend a fare, the driver partners have liberty to negotiate a
lower fare. It is, therefore, evident that the Cab Aggregators do
not function as an association of its driver partners. Thus, the
allegation of their facilitating a cartel defies the logic and has to
be repelled.
18. Now coming to the issue of abuse of dominant position, be it
seen that the Commission, having been equipped with the
necessary wherewithal and having dealt with allegations of similar
nature in a number of cases as also based on information in public
domain found that there are other players offering taxi service/
transportation service/ service providers in transport sector and
the Cab Aggregators in the instant case distinctly do not hold
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dominant position in the relevant market. Admittedly, these two
Cab Aggregators are not operating as a joint venture or a group,
thus both enterprises taken together cannot be deemed to be holding
a dominant position within the ambit of Section 4 of the Act. Even
otherwise, none of the two enterprises is independently alleged to
be holding a dominant position in the relevant market of providing
services. This proposition of fact being an admitted position in the
case, question of abuse of dominant position has to be outrightly
rejected."
(emphasis in original)
Based on these findings, the appeal was accordingly dismissed.
6. The Appellant/Informant, who appeared in person before this
Court, referred to a Services Agreement between Uber and its drivers,
updated on 08.09.2015, and an Agreement between Ola and its transport
service providers, dated 01.11.2016. He reiterated the submissions made
before the CCI and the NCLAT. In particular, he attacked the finding of
the NCLAT as to locus standi and referred us to various provisions of
the Act, including, in particular, sections 19 and 35, arguing that the
amendments made in the sections would show that any person can be
an informant who can approach the CCI, as one does not have to be a
"consumer" or a "complainant", which was the position before the
Competition (Amendment) Act, 2007 ["2007 Amendment"]. He
contrasted these provisions with sections 53B and 53T of the Act, where
the expression used is "person aggrieved", but hastened to add that once
an informant had moved the CCI, for the purposes of filing an appeal,
such informant would certainly be a "person aggrieved", howsoever
restricted the expression "person aggrieved" may be in law.
7. The Appellant then argued substantially what was submitted
before the CCI and NCLAT on the merits, stating that the arrangements
in the present case amounted to "hub and spoke" arrangements and
referred us to a particular diagram depicting Ola and Uber as the "hub"
and drivers as "spokes" (at page 263 of the paper book of the Civil
Appeal), which indicated that the provisions of section 3 of the Act had
clearly been violated.
8. As against this, Dr. Abhishek Manu Singhvi, learned senior
advocate appearing on behalf of Uber, took us through the concurrent
findings of fact of the CCI and the NCLAT, and stated that they could
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not be said to be, in any sense, even remotely perverse and would
therefore have to be upheld. He was at pains to stress that every driver
of a taxi cab, who uses the Ola or Uber app, can have several such apps
including both Ola, Uber and the apps of some of their competitors, and
can take private rides de hors these apps as well. There is, therefore,
complete discretion with the drivers to negotiate fares with riders, not
only insofar as Ola and Uber are concerned, but also otherwise, there
being nothing in either the agreements or practice, which prevents them
from doing so. Furthermore, there would be no question of any anticompetitive practice in the form of cartelization, as there are thousands
of drivers, none of whom have anything to do with each other, there
being no common meeting of minds as far as they are concerned. On
the contrary, the apps allow drivers to negotiate fares that are below
what is quoted in the app, thereby increasing competition and giving
riders greater flexibility to take rides with those drivers who offer the
most competitive fares.
9. Shri Rajshekhar Rao, learned advocate appearing on behalf of
Ola, also supported Dr. Singhvi's submissions on merits, but went on to
add that even if the Appellant could be said to be an informant for the
purposes of section 19 of the Act, he could not be said to be a "person,
aggrieved" for the purposes of filing an appeal under section 53B under
the Act, and referred to the judgment in Adi Pherozshah Gandhi v.
H.M. Seervai, Advocate General of Maharashtra, (1970) 2 SCC
484, ["Adi Pherozshah Gandhi"]. He also went on to argue that
information can be provided by persons like the Appellant at the behest
of competitors, which will have a deleterious effect on persons like Ola
and Uber, as the value of their shares in the share market would instantly
drop the moment the factum of the filing of such information before the
CCI would be advertised. In any event, he exhorted us to lay down that
in such cases heavy costs should be imposed to deter such persons from
approaching the CCI with frivolous and/or mala fide information, filed
at the behest of competitors.
10. The learned ASG, Shri Balbir Singh, appearing on behalf of
the CCI, took us through the provisions of the Act together with the
regulations made under it, and stated that though he would support the
CCI's Order closing the case, he would also support the right of the
Appellant to approach the CCI with information.
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11. Having heard the learned counsel appearing on behalf of the
various parties, it is necessary to first set out the sections of the Act
which have a bearing on the matter before us:
"Definitions
2. In this Act, unless the context otherwise requires,-
xxx xxx xxx
(c) "cartel" includes an association of producers, sellers,
distributors, traders or service providers who, by agreement
amongst themselves, limit, control or attempt to control the
production, distribution, sale or price of, or, trade in goods or
provision of services;
xxx xxx xxx
(f) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or
promised or partly paid and partly promised, or under any system
of deferred payment and includes any user of such goods other
than the person who buys such goods for consideration paid or
promised or partly paid or partly promised, or under any system
of deferred payment when such use is made with the approval
of such person, whether such purchase of goods is for resale
or for any commercial purpose or for personal use;
(ii) hires or avails of any services for a consideration which
has been paid or promised or partly paid and partly promised,
or under any system of deferred payment and includes any
beneficiary of such services other than the person who hires
or avails of the services for consideration paid or promised, or
partly paid and partly promised, or under any system of deferred
payment, when such services are availed of with the approval
of the first-mentioned person whether such hiring or availing
of services is for any commercial purpose or for personal use;
xxx xxx xxx
(l) "person" includes-
(i) an individual;
(ii) a Hindu undivided family;
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(iii) a company;
(iv) a firm;
(v) an association of persons or a body of individuals, whether
incorporated or not, in India or outside India;
(vi) any corporation established by or under any Central, State
or Provincial Act or a Government company as defined in
section 617 of the Companies Act, 1956 (1 of 1956);
(vii) any body corporate incorporated by or under the laws of
a country outside India;
(viii) a co-operative society registered under any law relating
to co-operative societies;
(ix) a local authority;
(x) every artificial juridical person, not falling within any of the
preceding sub-clauses;"
"Anti-competitive agreements
3. (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.
xxx xxx xxx
(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;...
xxx xxx xxx
(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, includingxxx xxx xxx
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(e) resale price maintenance"
"Duties of Commission
18. Subject to the provisions of this Act, it shall be the duty of the
Commission to eliminate practices having adverse effect on
competition, promote and sustain competition, protect the interests
of consumers and ensure freedom of trade carried on by other
participants, in markets in India:
Provided that the Commission may, for the purpose of discharging
its duties or performing its functions under this Act, enter into any
memorandum or arrangement with the prior approval of the Central
Government, with any agency of any foreign country."
"Inquiry into certain agreements and dominant position of
enterprise
19. (1) The Commission may inquire into any alleged contravention
of the provisions contained in subsection (1) of section 3 or subsection (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...''
"Procedure for inquiry under section 19
26. (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
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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...."
"Appearance before Commission
35. A person or an enterprise or the Director General may either
appear in person or authorise one or more chartered accountants
or company secretaries or cost accountants or legal practitioners
or any of his or its officers to present his or its case before the
Commission.
Explanation.-For the purposes of this section,-
(a) "chartered accountant" means a chartered accountant as
defined in clause (b) of sub-section (1) of section 2 of the
Chartered Accountants Act, 1949 (38 of 1949) and who has
obtained a certificate of practice under sub-section (1) of
section 6 of that Act;
(b) "company secretary" means a company secretary as
defined in clause (c) of sub-section (1) of section 2 of the
Company Secretaries Act, 1980 (56 of 1980) and who has
obtained a certificate of practice under sub-section (1) of
section 6 of that Act;
(c) "cost accountant" means a cost accountant as defined in
clause (b) of sub section (1) of section 2 of the Cost and Works
Accountants Act, 1959 (23 of 1959) and who has obtained a
certificate of practice under sub- section (1) of section 6 of
that Act;
(d) "legal practitioner" means an advocate, vakil or an attorney
of any High Court, and includes a pleader in practice."
"Penalty for offences in relation to furnishing of information
45. (1) Without prejudice to the provisions of section 44, if a person,
who furnishes or is required to furnish under this Act any particulars,
documents or any information,-
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(a) makes any statement or furnishes any document which he
knows or has reason to believe to be false in any material
particular; or
(b) omits to state any material fact knowing it to be material;
or
(c) wilfully alters, suppresses or destroys any document which
is required to be furnished as aforesaid, such person shall be
punishable with fine which may extend to rupees one crore as
may be determined by the Commission.
(2) Without prejudice to the provisions of sub-section (1), the
Commission may also pass such other order as it deems fit."
"Appeal to Appellate Tribunal
53B. (1) The Central Government or the State Government or a
local authority or enterprise or any person, aggrieved by any
direction, decision or order referred to in clause (a) of section
53A may prefer an appeal to the Appellate Tribunal.
(2) Every appeal under sub-section (1) shall be filed within a period
of sixty days from the date on which a copy of the direction or
decision or order made by the Commission is received by the
Central Government or the State Government or a local authority
or enterprise or any person referred to in that sub-section and it
shall be in such form and be accompanied by such fee as may be
prescribed:
Provided that the Appellate Tribunal may entertain an appeal
after the expiry of the said period of sixty days if it is satisfied that
there was sufficient cause for not filing it within that period.
(3) On receipt of an appeal under sub-section (1), the Appellate
Tribunal may, after giving the parties to the appeal, an opportunity
of being heard, pass such orders thereon as it thinks fit, confirming,
modifying or setting aside the direction, decision or order appealed
against.
(4) The Appellate Tribunal shall send a copy of every order made
by it to the Commission and the parties to the appeal.
(5) The appeal filed before the Appellate Tribunal under sub-section
(1) shall be dealt with by it as expeditiously as possible and
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endeavour shall be made by it to dispose of the appeal within six
months from the date of receipt of the appeal."
"Awarding compensation
53N.