COMPETITION APPELLATE TRIBUNAL Appeal No.

44 of 2013 [Under Section 53B of the Competition Act, 2002 against the order dated 23.6.2011 passed by the Competition Commission of India in case no. 13/2009] With I.A. Nos. 81& 82 of 2013, I.A. Nos. 12 & 17 of 2014 CORAM Honble Mr. Justice V.S. Sirpurkar Chairman Honble Shri Rahul Sarin Member Honble Smt. Pravin Tripathi Member In the matter of: Jitender Bhargava Vs. Competition Commission of India Jet Airways (India) Ltd. Ethiad Airways PJSC Appearances: Respondent No. 1 Respondent No. 2 ...Respondent No. 3 Appellant

Shri Ramji Srinivasan, Sr. Advocate with Shri Srinivas Kotni, Shri Mukul Chandra, Shri Ajay Yadav and Shri Pradeep, Advocates for the Appellant. Shri Balbir Singh & Ms. Monica Benjamin, advocates with Dr. Shabistan Aquil & Sriraj for Respondent No. 1 / CCI. Shri U.A. Rana with Ms. Mrinal Mazumdar and Mr. Raghav Shankar, Advocate for Respondent No. 2 / Jet Airways. Shri Rajshekhar Rao, Ms. Nisha Uberoi, Mr. Abir Roy, Ms. Shruti Aji Murali, Advocates for Respondent No. 3 / Ethiad Airways PJSC.

-2ORDER 27 March, 2014

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This appeal is filed by one Shri Jitender Bhargava (the Appellant) against the Order passed by the Competition Commission of India (hereinafter called CCI) under Section 31(1) of the Competition Act 2002 (the Act) permitting the Combination of two airlines namely Etihad Airways PJSC and Jet Airways (India) Ltd. In their majority order, the CCI have permitted and have expressed in para 57 of the Order that in pursuance of the notice given by these two airlines under Section 2(6) of the Act and after considering the relevant factors mentioned in sub section (4) of Section 20 of the Act, the CCI is of the opinion that the proposed combination is not likely to have appreciable adverse effect on competition in India and therefore, the CCI accords its approval under provisions of sub section (1) of Section 31 of the Act. In para 58 the CCI has further clarified that this approval should not be construed as immunity in any manner for subsequent proceedings before the CCI for violations of other provisions of the Act. It is also expressed that it is incumbent upon the parties to ensure that this ex ante approval does not lead to ex post violation of the provisions of the Act. 2. The Appellant Shri Jitender Bhargava contends in para 2 of the

Appeal Memo that the Appellant is a public spirited person who has been intrinsically connected with the Indian aviation industry by virtue of his position as former executive director of Air India. It is also claimed that since his retirement from his 20 years of association with Air India, the Appellant has taken up the cause of troubled national carrier and has publicly voiced his concerns in relation to the policies adopted by the

-3Government which has adversely affected the national carrier and thereby its passengers. It is also claimed that the Appellant has penned his concerns in relation to the policies adopted by the Central Government in the administration of national carrier in his book titled as Descent of Air India. This is all that the Appellant has to say in the memo of appeal about his locus standi. 3. As per the Appellant, the proposed combination which has been

approved by the CCI, between Etihad Airlines and Jet Airways seeks to eliminate the competition in the market for international air passengers which would not only impact the operations of Air India and other domestic airlines but ultimately the consumers who would be left without any choice. The Appellant also asserts that by the approval of the proposed Combination the CCI has defeated the very object of Competition Act which is to promote and sustain competition in markets and protect the interest of consumers and ensure freedom of trade carried on by other participants in the markets. It is his complaint that the CCI failed to take note of representations made by the Appellant at the time of assessing the proposed transaction, evidenced by the fact that there has been no mention of it in the impugned order. The Appellant adds, moreover even the concerns expressed by Air India have not been appreciated by Respondent no. 1 (CCI) in passing its impugned order. 4. When specific query was made by this Honble Tribunal to the

learned Senior Counsel appearing on behalf of Respondent No. 1 Shri Ramji Srinivasan, he was candid enough to state that no specific representation was ever made to the CCI by the appellant. We could have

-4proceeded to reject the Appeal only on this ground of misrepresentation but we do not propose to do so in view of the lengthy arguments which went on before us at the time of motion hearing. 5. In short, the contention raised is, that this Combination which has

been approved of, has not been given by following due procedure of law as contemplated in Sections 5, 6, 29, 30 and 31 of the Act. 6. The learned Senior Counsel initially concentrated on the route taken

by the CCI of Section 31 and a serious contention was raised that the route via Section 31 (2) was not liable to be taken in this case as it would have been more appropriate on the part of CCI to take the route of Section 29 which would have enabled the CCI to take into consideration the views of general public and also other stake holders interested in the matter. 7. Objection was taken to the tenability of Appeal by the other side on the

ground of locus standi. According to Shri Harish Salve as well as Shri Balbir Singh appearing on behalf of the Airlines and CCI respectively, there was a total and complete lack of locus standi in the Appellant. The Respondents went on to argue, merely because the Appellant was a former Executive Director of Air India, the competitor Airline, it did not provide any locus standi to the Appellant as he was no more connected with Air India. The learned counsel also reiterated the fact that Air India which was heard in the matter had not come up with the Appeal. The learned counsel therefore argued the fact that the Appellant was claiming locus standi through its nexus with Air India, which was non-existent then. It would have been appropriate for Air India to come in appeal and once Air India did not challenge the

-5Order, there was obvious and complete absence of the locus standi in the Appellant. 8. We do not want to go into the procedural aspect which was also

argued in great detail before us since we do not want to entertain this Appeal on the sole ground of total and complete lack of locus standi on the part of the Appellant. 9. The power of the CCI emanates from Sections 5 and 6 to approve the

Combination of companies of a certain standard. It must be realized that this Combination has not been objected to by any shareholder or any office bearer such as Director or otherwise by any other competitor companies. Instead it is being opposed by complainant in his private capacity. Further, Air India which would have been the most affected person by this Combination has also not chosen to file any appeal against the Order. This is apart from the fact that the Combination appears to have been thoroughly examined by the CCI under Section 31 of the Act. 10. Since we are not expressing any opinion on the correctness or

otherwise of either procedure taken or the reasoning by the CCI we desist from expressing anything on those aspects.. However, in our opinion there was no locus standi whatsoever in the Appellant for the following reasons:Section 53(B) is in the following terms:(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 53(A) may prefer an appeal to the Appellate Tribunal.

-6Section 53A provides for establishment of an Appellant Tribunal, sub clause (1) runs as under:a) to hear and dispose of appeals against any direction issued or decision made or order passed by the Commission under sub sections (2) and (6) of section 26, section 27, section 28, section 31, section 32, section 33, section 38, section 39, section 43, section 43A, section 44, section 45 or section 46 of this Act. b) to adjudicate on claim for compensation that may arise from the findings of the Commission or the orders of the Appellate Tribunal etc. 11. It is therefore axiomatic that in order to be able to file an appeal by

any person he has to be an aggrieved person. Inspite of lengthy arguments we are not convinced that Shri Jitender Bhargava, the Appellant can be in any manner be an aggrieved person, particularly, by the approval of the Combination. 12. Learned Senior Counsel very seriously argued that as the

Combination has been approved of on an incorrect appreciation of facts and law, the Appellant feels aggrieved. We do not see any reason firstly to discuss the merit or demerits of the logic and rational in the Order of CCI, particularly because that could have been questioned by the person really aggrieved. Since we do not see the Appellant as an aggrieved person we

-7do not wish to go into that aspect. Shri Ramji Srinivasan also did not press this point further. 13. The further reason according to the learned Senior Counsel was, that there would be a likelihood of increase in fares because of two powerful airlines coming together and thereby putting an end to the competition. 14. We are afraid the contention is pre mature. That has not happened

and if at all it happens it will always be proper for an aggrieved person to come before the appropriate authority for redressal of the grievance. We hasten to add that in its Order, CCI has specifically so mentioned. 15. Next submission of the learned counsel was, that the Appellant in his

personal capacity could have been a passenger and therefore could have challenged. We hasten to add that a distant uncertain step of an increase in fares would not clothe any so called passenger with a locus standi to challenge the CCI Order. That is also not claimed to be a reason in the appeal memo. 16. During pendency of Appeal one association called Air Passengers

Association of India sought to join this by an impleadment application. It is an admitted position that the present Appellant or the so called Air Passengers Association were not there before the CCI. This is apart from the fact if the Appeal as filed was without any locus standi, it amounted to no appeal in law at all. If it is so, nobody could have joined the Appeal as an Appellant. We however, express specifically that if such an association thinks of filing any proceeding before an appropriate forum, it is free to do so.

-817. In short, we find that there is no locus standi in the Appellant and on

that count alone we dismiss the Appeal but without any cost.

[Justice V.S. Sirpurkar] Chairman

[Rahul Sarin] Member

[Pravin Tripathi] Member

COMPETITION APPELLATE TRIBUNAL Appeal No. 10 of 2014

[Under Section 53B of the Competition Act, 2002 against theCase No. 3/2001 dated 6.2.2014 passed by the Competition Commission]

With I.A. 18 of 2014 CORAM Honble Mr. Justice V.S. Sirpurkar Chairman Honble Shri Rahul Sarin Member Honble Smt. Pravin Tripathi Member In the matter of: Sarthak Industries Ltd. Vs. Competition Commission of India Appearances: Respondent Appellant

Mr. Jagjit Singh, advocate for the Appellant. ORDER 27 March, 2014
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Learned counsel Mr. Jagjit Singh seeks to withdraw this appeal in view of the order passed by Honble Supreme Court. Appeal is allowed to be withdrawn and be treated as disposed of. [Justice V.S. Sirpurkar] Chairman

[Rahul Sarin] Member [Pravin Tripathi] Member

COMPETITION APPELLATE TRIBUNAL Appeal No. 131 of 2012

[Under Section 53B of the Competition Act, 2002 against the Case No. 16/2011 dated 9.8.2012 passed by the Competition Commission of India]

With I.A. 37 of 2013 CORAM Honble Mr. Justice V.S. Sirpurkar Chairman Honble Shri Rahul Sarin Member Honble Smt. Pravin Tripathi Member In the matter of: Coordination Committee of Artist & Technicians of West Bengal Film & Television Industry Vs. Sajjan Khaitan & Ors. Appearances: Respondent

Appellant

Mr. Arijit Bhattacharjee and Mrs. Sarbani Kar, advocates for the Appellant. Ms. Anju Jain, advocate for CCI. ORDER 27 March, 2014
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Matter closed. Judgement reserved. [Justice V.S. Sirpurkar] Chairman

[Rahul Sarin] Member [Pravin Tripathi] Member