CCI can continue adjudicatory proceedings even if there is a vacancy or defect in its composition: Delhi High Court

The Delhi High Court recently held that the Competition Commission of India (CCI) has the jurisdiction to adjudicate complaints or proceedings pending before it even if there is a vacancy or defect in the CCI's composition. .Justice Tushar Rao Gedela observed that any other interpretation would render Section 15 of the Competition Act otiose which was not the intention of the legislature.Section 15 of the Competition Act, 2002 provides that any vacancy in the Commission shall not invalidate proceedings of the CCI and that none of its acts or proceedings shall be invalid merely because of vacancy or irregularity in the procedure.The Court also examined Section 8 of the Act (dealing with CCI’s composition) and held that there is no prescription as to what would be the minimum number of members to constitute a valid quorum for the CCI in its adjudicatory proceedings. “Further to the aforesaid, this Court has generally considered various provisions of the Act in general and has observed that there is no provision which prescribes minimum number of members who would validly constitute a quorum of CCI in its adjudicatory proceedings. It is trite that Courts cannot read into an enactment, something which is conspicuous by its absence. Moreover, the Court has to assume that if there is any absence of a provision, the legislature in its wisdom thought it appropriate not to engraft the same,” the Court said. .Justice Gedela further noted that a plain reading of Section 8 showed that what is contemplated is the composition of the commission and not quorum, meaning thereby that the composition of the commission would consist of the chairperson and not less than two and not more than six other members who are to be appointed by the Central Government.It is clear from the above that the composition of the CCI itself has no nexus with the word “quorum” as employed in the proviso to sub-section 3 to Section 22 of the Act, the judge held.Moreover, the word “quorum” as used in proviso to sub-section 3 is in respect of meetings of the commission, which are not relatable to the adjudicatory proceedings of the CCI, the Court underscored.“It is for that reason that the proviso prescribes a “quorum” for any meeting to be consisting of three members mandatorily. The provisions of Section 22 appear to be purely in respect of administrative action to be undertaken by the commission and have no nexus with the adjudicatory process, inasmuch as, no adjudicatory process can be rendered by a decision of majority of the members present and voting, which could be comprehensible only in context of a meeting, which does not have entrapment of an adjudicatory process. Clearly an adjudicatory process would involve an application of mind and determination of issues in the judicial sense.”.The Court made the observations while directing the CCI to deal with the applications moved by Association of Digital India Foundation (ADIF) challenging Google’s new in-app billing policy.The ADIF, whose members include startups like Paytm, had come to court seeking a declaration that the CCI can deal with these applications even in lack of quorum. It was argued that Google is trying to circumvent the CCI directions ordering the tech giant to allow third party payment options for payment on its platform..After considering the case and the submissions made, the Court concluded that there is no legal impediment in directing the CCI to deal with the applications made by the ADIF.In view of the above, there is no impediment, legal or otherwise, in directing the CCI to take up the applications under Section 42 of the Act, as filed by the petitioner, for hearing and considering the same in accordance with law on or before 26.04.2023. Accordingly, the petition stands disposed of in above terms,” the High Court ordered.Google’s new billing policy kicks in from April 26..Advocates Abir Roy, T Sundar Ramanathan, Vivek Pandey, Aman Shankar and Sukanya Viswanathan of Sarvada Legal appeared for ADIF.Additional Solicitor General N Venkataraman along with advocates Aakanksha Kaul and Versha Singh appeared for CCI.Senior Advocate Sajan Poovayya along with advocates Karan Singh Chandhiok, Avaantika Kakkar, Deeksha Manchanda, Kaustav Kundu, Ruchi Verma, Tarun Donadi, Bhavika Chabbra, Raksha Agarwal, Vijayendra Pratap Singh, Sayobani Basu and Abhisar Vidyarthi appeared for Google.Senior Advocate Jayant Mehta along with Advocates Sonam Mathur, Dinoo Muthappa and Dhruv Dikshit appeared for Match Group Inc..[Read Judgment]