COMPETITION ACT, 2002 [AMENDED
UPTO 2023]
[13th January 2003]
PREAMBLE
An
act to provide, keeping in view of the economic development of the country, for
the establishment of a commission to prevent practices having adverse effect on
competition, to promote and sustain competition in markets, to protect the
interests of consumers and to ensure freedom of trade carried on by other
participants in markets, in India, and for matters connected therewith or
incidental thereto.
BE it enacted by
Parliament in the Fifty-third Year of the Republic of India as follows:
Section 1 - Short title extent and commencement
(1)
This Act may be
called the Competition Act, 2002.
(2)
It extends to the
whole of India except the State of Jammu and Kashmir.
(3)
It shall come into
force on such date
as the Central Government may, by notification in the Official Gazette,
appoint:
Provided
that different dates may be appointed for different provisions of this Act and
any reference in any such provision to the commencement of this Act shall be
construed as a reference to the coming into force of that provision.
Section 2 - Definitions
In this Act, unless the context otherwise requires,
(a)
"acquisition" means, directly or indirectly, acquiring or agreeing to
acquire
(i)
shares, voting rights
or assets of any enterprise: or
(ii)
control over
management or control over assets of any enterprise:
(b)
"agreement" includes any arrangement or understanding or action in
concert,:
(i)
whether or not, such
arrangement, understanding or action is formal or in writing: or
(ii)
whether or not such
arrangement, understanding or action is intended to be enforceable by legal
proceedings:
[(ba) "Appellate
Tribunal" means the National Company Law Appellate Tribunal referred to in
sub-section (1) of section 53A:]
(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:
(d)
"Chairperson'' means the Chairperson of the Commission appointed under
sub-section (1) of section 8:
(e)
"Commission" means the Competition Commission of India established
under sub-section (1) of section 7:
[(ea)
"commitment" means the commitment referred to in section 48B;;]
(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:
(g) "Director
General" means the Director General appointed under sub-section (1) of
section 16 and includes any Additional, Joint, Deputy or Assistant Directors
General appointed under that section:
[11][(h)
"enterprise" means ["a person or a department of the Government,
including units, divisions, subsidiaries, who or which is, or has been, engaged
in any economic activity, relating to the production, storage, supply,
distribution, acquisition or control of articles or goods, or the provision of
services, of any kind, or in investment, or in the business of acquiring,
holding, underwriting or dealing with shares, debentures or other securities of
any other body corporate, either directly or through one or more of its units
or divisions or subsidiaries, but does not include any activity of the
Government relatable to the sovereign functions of the Government including all
activities carried on by the departments of the Central Government dealing with
atomic energy, currency, defence and space;";].
Explanation. For the purposes of this clause,
(a)
"activity"
includes profession or occupation:
(b)
"article"
includes a new article and "service" includes a new service:
(c)
"unit" or
"division", in relation to an enterprise, includes
(i)
a plant or factory
established for the production, storage, supply, distribution, acquisition or
control of any article or goods:
(ii)
any branch or office
established for the provision of any service:
(i)
"goods" means goods as defined in the Sale of Goods Act, 1930 (8 of
1930) and includes
(A)
products
manufactured, processed or mined:
(B)
debentures, stocks
and shares after allotment:
(C)
in relation to goods
supplied, distributed or controlled in India, goods imported into India:
(j)
"Member" means a Member of the Commission appointed under sub-section
(1) of section 8 and includes the Chairperson:
(k)
"notification" means a notification published in the Official
Gazette:
[(ka)
"party" includes a consumer or
an enterprise or a person or an information provider, or a consumer association
or a trade association, or the Central Government or any State Government or
any statutory authority, as the case may be, and shall include an enterprise or
a person against whom any inquiry or proceeding is instituted; and any
enterprise or person impleaded by the Commission to join the proceedings;;]
(l)
"person" includes
(i)
an individual:
(ii)
a Hindu undivided
family:
(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 [clause
(45) of section 2 of the Companies Act, 2013] [18 of 2013]:
(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 cooperative societies:
(ix)
a local authority:
(x)
every artificial
juridical person, not falling within any of the preceding sub-clauses:
(m)
"practice" includes any practice relating to the carrying on of any
trade by a person or an enterprise:
(n)
"prescribed" means prescribed by rules made under this Act:
(o)
"price", in relation to the sale of any goods or to the performance
of any services, includes every valuable consideration, whether direct or
indirect, or deferred, and includes any consideration which in effect relates
to the sale of any goods or to the performance of any services although
ostensibly relating to any other matter or thing:
[(p) "public
financial institution" means public financial institution as defined in
clause (72) of section 2 of the Companies Act, 2013 and includes a State
Financial Corporation, State Industrial Corporation or State Investment Corporation;]
(q)
"regulations" means the regulations made by the Commission under
section 64:
(r) "relevant
market" means the market which may be determined by the Commission with
reference to the relevant product market or the relevant geographic market or
with reference to both the markets:
(s) "relevant
geographic market" means a market comprising the area in which the
conditions of competition for supply of goods or provision of services or
demand of goods or services, are distinctly homogenous and can be distinguished
from the conditions prevailing in the neighbouring areas:
[(t)
"relevant product market" means a
market comprising of all those products or services-
(i)
which are regarded as inter-changeable or
substitutable by the consumer, by reason of characteristics of the products or
services, their prices and intended use; or
(ii)
the production or supply of, which are
regarded as interchangeable or substitutable by the supplier, by reason of the
ease of switching production between such products and services and marketing
them in the short term without incurring significant additional costs or risks
in response to small and permanent changes in relative prices;]
(u)
"service" means service of any description which is made available to
potential users and includes the provision of services in connection with
business of any industrial or commercial matters such as banking,
communication, education, financing, insurance, chit funds, real estate,
transport, storage, material treatment, processing, supply of electrical or
other energy, boarding, lodging, entertainment, amusement, construction,
repair, conveying of news or information and advertising:
[(ua)
"settlement" means the settlement referred to in section 48A;.]
(v)
"shares" means shares in the share capital of a company carrying
voting rights and includes
(i)
any security which
entitles the holder to receive shares with voting rights:
(ii)
stock except where a
distinction between stock and share is expressed or implied:
(w) "statutory
authority" means any authority, board, corporation, council, institute,
university or any other body corporate, established by or under any Central,
State or Provincial Act for the purposes of regulating production or supply of
goods or provision of any services or markets therefore or any matter
connected therewith or incidental thereto:
(x) "trade''
means any trade, business, industry, profession or occupation relating to the
production, supply, distribution, storage or control of goods and includes the
provision of any services:
(y)
"turnover" includes value of sale of goods or services:
(z) words and
expressions used but not defined in this Act and defined in [the Companies Act, 2013] [18 of 2013] shall have the same
meanings respectively assigned to them in that Act.
Section 3 - Prohibition of agreements: Anti competitive agreements
[(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.
(2) Any agreement entered into in contravention
of the provisions contained in subsection (7) shall be void.
(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:
(b)
limits or controls
production, supply, markets, technical development, investment or provision of
services:
(c)
shares the market or
source of production or provision of services by way of allocation of
geographical area of market, or type of goods or services, or number of
customers in the market or any other similar way:
(d)
directly or
indirectly results in bid rigging or collusive bidding, shall be presumed to
have an appreciable adverse effect on competition:
Provided that nothing contained in this sub-section
shall apply to any agreement entered into by way of joint ventures if such
agreement increases efficiency in production, supply, distribution, storage,
acquisition or control of goods or provision of services.
["Provided further that an enterprise or association
of enterprises or a person or association of persons though not engaged in identical
or similar trade shall also be presumed to be part of the agreement under this
sub-section if it participates or intends to participate in the furtherance of
such agreement.";]
Explanation. For the purposes of this sub-section,
"bid rigging" means any agreement, between enterprises or persons
referred to in sub-section (3) engaged in identical or similar production or
trading of goods or provision of services, which has the effect of eliminating
or reducing competition for bids or adversely affecting or manipulating the
process for bidding.
(4) [Any other agreement amongst enterprises
or persons including but not restricted to 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, including
(a)
tie-in arrangement:
(b)
exclusive [dealing] agreement:
(c)
exclusive
distribution agreement:
(d)
refusal to deal:
(e)
resale price
maintenance,
shall be an agreement in contravention of sub-section
(1) if such agreement causes or is likely to cause an appreciable adverse
effect on competition in India.
["Provided
that nothing contained in this sub-section shall apply to an agreement entered
into between an enterprise and an end consumer.";]
Explanation. For the purposes of this sub-section,-
(a)
["tie-in arrangement" includes any
agreement requiring a purchaser of goods or services, as a condition of such
purchase, to purchase some other distinct goods or services;
(b)
"exclusive dealing agreement"
includes any agreement restricting in any manner the purchaser or the seller,
as the case may be, in the course of his trade from acquiring or selling or
otherwise dealing in any goods or services other than those of the seller or
the purchaser or any other person, as the case may be;
(c)
"exclusive
distribution agreement" includes any agreement to limit, restrict or
withhold the output or supply of any goods or allocate any area or market for
the disposal or sale of the goods [or services]:]
(d)
"refusal to
deal" includes any agreement which restricts, or is likely to restrict, by
any method the persons or classes of persons to whom goods [or services] are sold or from
whom goods are bought:
(e)
"resale price
maintenance" [includes, in case of any agreement to sell
goods or provide services] that the prices to
be charged on the resale by the purchaser shall be the prices stipulated by the
seller unless it is clearly stated that prices lower than those prices may be
charged.
(5) Nothing contained in this section shall
restrict
(i) the right of any person to restrain any infringement
of, or to impose reason able conditions, as may be necessary for protecting
any of his rights which have been or may be conferred upon him under
(a)
the Copyright Act,
1957 (14 of 1957):
(b)
the Patents Act, 1970
(39 of 1970):
(c)
the Trade and
Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of
1999):
(d)
the Geographical
Indications of Goods (Registration and Protection)Act, 1999(48 of 1999),
(e)
the Designs Act, 2000
(16 of 2000):
(f)
the Semi-conductor
Integrated Circuits Layout-Design Act, 2000 (37 of 2000):
["(g) any other law for the time being in force
relating to the protection of other intellectual property rights.".]
(ii)
the right of any
person to export goods from India to the extent to which the agreement relates
exclusively to the production, supply, distribution or control of goods or
provision of services for such export.]
Section 4 - Prohibition of abuse of dominant position: Abuse of dominant position
[ [(1) No enterprise
or group shall abuse its dominant position.]
(2) There shall be an abuse of dominant
position [under sub-section
(1), if an enterprise or a group],-
(a) directly or indirectly, imposes unfair or
discriminatory
(i)
condition in purchase
or sale of goods or service: or
(ii)
price in purchase or
sale (including predatory price) of goods or service.
Explanation. For the purposes of this clause, the
unfair or discriminatory condition in purchase or sale of goods or service
referred to in sub-clause (i) and unfair or discriminatory price in purchase or
sale of goods (including predatory price) or service referred to in sub-clause
(ii) shall not include such [condition or price] which may be adopted
to meet the competition: or
(b) limits or restricts
(i)
production of goods
or provision of services or market therefore: or
(ii)
technical or
scientific development relating to goods or services to the prejudice of
consumers: or
(c)
indulges in practice
or practices resulting in denial of market access [in any manner]: or
(d)
makes conclusion of
contracts subject to acceptance by other parties of supplementary obligations
which, by their nature or according to commercial usage, have no connection
with the subject of such contracts: or
(e)
uses its dominant
position in one relevant market to enter into, or protect, other relevant
market.
Explanation. For the purposes of this section, the
expression
(a) "dominant position" means a position of
strength, enjoyed by an enterprise, in the relevant market, in India, which
enables it to
(i)
operate independently
of competitive forces prevailing in the relevant market: or
(ii)
affect its
competitors or consumers or the relevant market in its favour:
(b)
"predatory
price" means the sale of goods or provision of services, at a price which
is below the cost, as may be determined by regulations, of production of the
goods or provision of services, with a view to reduce competition or eliminate
the competitors.
[(c)
"group" shall have the same meaning as assigned to it in clause (b)
of the Explanation to section 5.]]
Section 5 - Combination
The acquisition of one or more enterprises by one or
more persons or merger or amalgamation of enterprises shall be a combination of
such enterprises and persons or enterprises, if
(a) any acquisition where
(i)
the parties to the
acquisition, being the acquirer and the enterprise, whose control shares,
voting rights or assets have been acquired or are being acquired jointly have,
(A) either, in India, the assets of the value of
more than rupees one thousand crores or turnover more than rupees three
thousand crores: or
[(B) in India or
outside India, in aggregate, the assets of the value of more than five hundred
million US dollars, including at least rupees five hundred crores in India, or
turnover more than fifteen hundred million US dollars, including at least
rupees fifteen hundred crores in India: or]
(ii) the group, to which the enterprise whose control,
shares, assets or voting rights have been acquired or are being acquired, would
belong after the acquisition, jointly have or would jointly have,
(A) either in India, the assets of the value of
more than rupees four thousand crores or turnover more than rupees twelve
thousand crores: or
[(B) in India or
outside India, in aggregate, the assets of the value of more than two billion
US dollars, including at least rupees five hundred crores in India, or turnover
more than six billion US dollars, including at least rupees fifteen hundred
crores in India: or:]
(b) acquiring of control by a person over an enterprise
when such person has already direct or indirect control over another enterprise
engaged in production, distribution or trading of a similar or identical or
substitutable goods or provision of a similar or identical or substitutable
service, if
(i)
the enterprise over
which control has been acquired along with the enterprise over which the
acquirer already has direct or indirect control jointly have,
(A) either in India,
the assets of the value of more than rupees one thousand crores or turnover
more than rupees three thousand crores: or
[(B) in India or
outside India, in aggregate, the assets of the value of more than five hundred
million US dollars, including at least rupees five hundred crores in India, or
turnover more than fifteen hundred million US dollars, including at least
rupees fifteen hundred crores in India: or:]
(ii) the group, to which enterprise whose control has been
acquired, or is being acquired, would belong after the acquisition, jointly
have or would jointly have,
(A) either in India, the assets of the value of more
than rupees four thousand crores or turnover more than rupees twelve thousand
crores: or
[(B) in India or
outside India, in aggregate, the assets of the value of more than two billion
US dollars, including at least rupees five hundred crores in India, or turnover
more than six billion US dollars, including at least rupees fifteen hundred
crores in India: or:]
(c) any merger or amalgamation in which
(i)
the enterprise
remaining after merger or the enterprise created as a result of the
amalgamation, as the case may be, have,
(A) either in India, the assets of the value of
more than rupees one thousand crores or turnover more than rupees three
thousand crores: or
[(B) in India or
outside India, in aggregate, the assets of the value of more than five hundred
million US dollars, including at least rupees five hundred crores in India, or
turnover more than fifteen hundred million US dollars, including at least
rupees fifteen hundred crores in India: or:]
(ii) the group, to which the enterprise remaining after the
merger or the enterprise created as a result of the amalgamation, would belong
after the merger or the amalgamation, as the case may be, have or would have,
(A) either in India,
the assets of the value of more than rupees four thousand crores or turnover
more than rupees twelve thousand crores: or
[(B) in India or
outside India, in aggregate, the assets of the value of more than two billion
US dollars, including at least rupees five hundred crores in India, or turnover
more than six billion US dollars, including at least rupees fifteen hundred crores
in [India;
or]]
(d)
["value of any transaction, in
connection with acquisition of any control, shares, voting rights or assets of an
enterprise, merger or amalgamation exceeds rupees two thousand crore:
Provided
that the enterprise which is being acquired, taken control of, merged or
amalgamated has such substantial business operations in India as may be
specified by regulations.
(e) notwithstanding
anything contained in clause (a) or clause (b) or clause (c), where either the
value of assets or turnover of the enterprise being acquired, taken control of,
merged or amalgamated in India is not more than such value as may be
prescribed, such acquisition, control, merger or amalgamation, shall not
constitute a combination under section 5.";]
[Explanation.-For the
purposes of this section,-
(a)
"control" means the ability to
exercise material influence, in any manner whatsoever, over the management or
affairs or strategic commercial decisions by-
(i)
one or more enterprises, either jointly or
singly, over another enterprise or group; or
(ii)
one or more groups, either jointly or singly,
over another group or enterprise;
(b)
"group" means two or more
enterprises where one enterprise is directly or indirectly, in a position to-
(i)
exercise twenty-six per cent. or such other
higher percentage as may be prescribed, of the voting rights in the other
enterprise; or
(ii)
appoint more than fifty per cent. of the
members of the board of directors in the other enterprise; or
(iii)
control the management or affairs of the
other enterprise;
(c)
"turnover" means the turnover
certified by the statutory auditor on the basis of the last available audited
accounts of the company in the financial year immediately preceding the
financial year in which the notice is filed under sub-section (2) or sub-section
(4) of section 6 and such turnover in India shall be determined by excluding
intra-group sales, indirect taxes, trade discounts and all amounts generated
through assets or business from customers outside India, as certified by the
statutory auditor on the basis of the last available audited accounts of the
company in the financial year immediately preceding the financial year in which
the notice is filed under sub-section (2) or sub-section (4) of section 6;
(d)
"value of transaction" includes
every valuable consideration, whether direct or indirect, or deferred for any
acquisition, merger or amalgamation;
(e)
the value of assets shall be determined by
taking the book value of the assets as shown, in the audited books of account
of the enterprise, in the financial year immediately preceding the financial
year in which the date of proposed combination falls and if such financial
statement has not yet become due to be filed with the Registrar under the
Companies Act, 2013 then as per the statutory auditors report made on the basis
of the last available audited accounts of the company in the financial year
immediately preceding the financial year in which the notice is filed under
sub-section (2) or sub-section (4) of section 6, as reduced by any
depreciation, and the value of assets shall include the brand value, value of
goodwill, or value of copyright, patent, permitted use, collective mark,
registered proprietor, registered trade mark, registered user, homonymous
geographical indication, geographical indications, design or layout-design or
similar other commercial rights under the laws provided in sub-section (5) of
section 3;
(f)
where a portion of an enterprise or division
or business is being acquired, taken control of, merged or amalgamated with
another enterprise, the value of assets or turnover or value of transaction as
may be applicable, of the said portion or division or business or attributable
to it, shall be the relevant assets or turnover or relevant value of
transaction for the purpose of applicability of the thresholds under section 5.]
Section 6 - Regulation of combinations
(1)
No person or
enterprise shall enter into a combination which causes or is likely to cause an
appreciable adverse effect on competition within the relevant market in India
and such a combination shall be void.
(2)
Subject to the
provisions contained in sub-section (1), any person or enterprise, who or which
proposes to enter into a combination, [shall], give notice
to the Commission, in the form as may be specified, and the fee which may be
determined, by regulations, disclosing the details of the proposed combination,
[after
any of the following, but before consummation of the combination]-
(a)
approval of the
proposal relating to merger or amalgamation, referred to in clause (c) [and clause (d)] of section 5, by the
board of directors of the enterprises concerned with such merger or
amalgamation, as the case may be:
(b)
execution of any
agreement or other document for acquisition referred to in clause (a) [and clause (d)] of section 5 or
acquiring of control referred to in clause (b) of that section.
[Explanation.-For the
purposes of this sub-section, "other document" means any document, by
whatever name called, conveying an agreement or decision to acquire control,
shares, voting rights or assets or if the acquisition is without the consent of
the enterprise being acquired, any document executed by the acquiring
enterprise, by whatever name called, conveying a decision to acquire control,
shares or voting rights or where a public announcement has been made in
accordance with the provisions of the Securities and Exchange Board of India
(Substantial Acquisition of Shares and Takeovers) Regulations, 2011 made under
the Securities and Exchange Board of India Act, 1992 for acquisition of shares,
voting rights or control such public document.;]
[(2A) No combination
shall come into effect until [one hundred and fifty days] have
passed from the day on which the notice has been given to the Commission under
sub-section (2) or the Commission has passed orders under section 31, whichever
is earlier.]
(3)
The Commission shall,
after receipt of notice under sub-section (2), deal with such notice in
accordance with the provisions contained in [sections 29, 29A, 30 and 31].
(4) [Notwithstanding
anything contained in sub-sections (2A) and (3) and section 43A, if a
combination fulfils such criteria as may be prescribed and is not otherwise
exempted under this Act from the requirement to give notice to the Commission
under sub-section (2), then notice for such combination may be given to the
Commission in such form and on payment of such fee as may be specified by
regulations, disclosing the details of the proposed combination and thereupon a
separate notice under sub-section (2) shall not be required to be given for
such combination.
(5) Upon
filing of a notice under sub-section (4) and acknowledgement thereof by the Commission, the proposed
combination shall be deemed to have been approved by the Commission under
sub-section (1) of section 31 and no other approval shall be required under
sub-section (2) or sub-section (2A).
(6) If
within the period referred to in sub-section (1) of section 20, the Commission
finds that the combination notified under sub-section (4) does not fulfil the
requirements specified under that sub-section or the information or declarations provided
are materially incorrect or incomplete, the approval under sub-section (5)
shall be void ab initio and the Commission may pass such order as it may deem
fit:
Provided that no such
order shall be passed unless the parties to the combination have been given an
opportunity of being heard.
(7) Notwithstanding
anything contained in this section and section 43A, upon fulfilment of such
criteria as may be prescribed, certain categories of combinations shall be
exempted from the requirement to comply with sub-sections (2), (2A) and
(4).
(8) Notwithstanding anything contained in sub-sections (4), (5),
(6) and (7)-
(i)
the rules and regulations made under this Act
on the matters referred to in these sub-sections as they stood immediately
before the commencement of the Competition (Amendment) Act, 2023 and in force
at such commencement, shall continue to be in force, till such time as the
rules or regulations, as the case may be, made under this Act; and
(ii)
any order passed or any fee imposed or
combination consummated or resolution passed or direction given or instrument
executed or issued or thing done under or in pursuance of any rules and
regulations made under this Act shall, if in force at the commencement of the
Competition (Amendment) Act, 2023, continue to be in force, and shall have
effect as if such order passed or such fee imposed or such combination
consummated or such resolution passed or such direction given or such
instrument executed or issued or done under or in pursuance of this Act.
(9) The
provisions of this section shall not apply to share subscription or financing facility or any acquisition, by a public financial
institution, foreign portfolio investor, bank or Category I alternative investment
fund, pursuant to any covenant of a loan agreement or investment agreement.
Explanation.-For the
purposes of this section, the expression-
(a)
"Category I alternative investment
fund" has the same meaning as assigned to it under the Securities and Exchange
Board of India (Alternative Investment Funds) Regulations, 2012 made under the
Securities and Exchange Board of India Act, 1992;
(b)
"foreign portfolio investor" has
the same meaning as assigned to it under the Securities and Exchange Board of
India (Foreign Portfolio Investors) Regulations, 2019 made under the Securities
and Exchange Board of India Act,1992.]
Section 6A. [Open offers, etc.
Nothing contained in
sub-section (2A) of section 6 and section 43A shall prevent the implementation
of an open offer or an acquisition of shares or securities convertible into
other securities from various sellers, through a series of transactions on a
regulated stock exchange from coming into effect, if-
(a)
the notice of the acquisition is filed with
the Commission within such time and in such manner as may be specified by
regulations; and
(b)
the acquirer does not exercise any ownership
or beneficial rights or interest in such shares or convertible securities
including voting rights and receipt of dividends or any other distributions,
except as may be specified by regulations, till the Commission approves such
acquisition in accordance with the provisions of sub-section (2A) of section 6
of the Act.
Explanation.-For the
purposes of this section, "open offer" means an open offer made in
accordance with the Securities and Exchange Board of India (Substantial
Acquisition of Shares and Takeovers) Regulation, 2011 made under the Securities
and Exchange Board of India Act,1992.]
Section 7 - Establishment of Commission
(1)
With effect from such
date as the Central Government may, by notification, appoint, there shall be
established, for the purposes of this Act, a Commission to be called the
"Competition Commission of India".
(2)
The Commission shall
be a body corporate by the name aforesaid having perpetual succession and a
common seal with power, subject to the provisions of this Act, to acquire, hold
and dispose of property, both movable and immovable, and to contract and shall,
by the said name, sue or be sued.
(3)
The head office of the
Commission shall be at such place as the Central Government may decide from
time to time.
(4)
The Commission may
establish offices at other places in India.]
Section 8 - Composition of Commission
(1)
The Commission shall consist of a Chairperson and not less than two and
not more than six other Members to be appointed by the Central Government.
(2)
The Chairperson and every other Member shall be a person of ability,
integrity and standing and who has special knowledge of, and such professional
experience of not less than fifteen years in, international trade, economics,
business, commerce, law, finance, accountancy, management, industry [technology], public affairs or competition matters, including competition law and
policy, which in the opinion of the Central Government, may be useful to the
Commission.
(3)
The Chairperson and other Members shall be whole-time Members.]
Section 9 - Selection Committee for Chairperson and Members of Commission
(1)
The Chairperson and
other Members of the Commission shall be appointed by the Central Government
from a panel of names recommended by a Selection Committee consisting of
|
(a)
|
the Chief Justice of
India or his nominee............
|
Chairperson:
|
|
(b)
|
the Secretary in the
Ministry of Corporate Affairs.............
|
Member:
|
|
(c)
|
the Secretary in the Ministry of Law and
Justice...............
|
Member:
|
|
(d)
|
two experts of repute who
have special knowledge of, and professional experience in international
trade, economics, business, commerce, law, finance, accountancy, management,
industry, [technology], public affairs or competition matters
including competition law and
policy......................................................
|
Members.
|
(2)
The term of the
Selection Committee and the manner of selection of panel of names shall be such
as may be prescribed.]
Section 10 - Term of office of Chairperson and other Members
(1)
The Chairperson and
every other Member shall hold office as such for a term of five years from the
date on which he enters upon his office and shall be eligible for
reappointment:
[Provided that the
Chairperson or other Members shall not hold office as such after he has
attained the age of sixty-five years.]
(2)
A vacancy caused by
the resignation or removal of the Chairperson or any other Member under section
11 or by death or otherwise shall be filled by fresh appointment in accordance
with the provisions of sections 8 and 9.
(3)
The Chairperson and
every other Member shall, before entering upon his office, make and subscribe
to an oath of office and of secrecy in such form, manner and before such
authority, as may be prescribed.
(4)
In the event of the
occurrence of a vacancy in the office of the Chairperson by reason of his
death, resignation or otherwise, the senior-most Member shall act as the
Chairperson, until the date on which a new Chairperson, appointed in accordance
with the provisions of this Act to fill such vacancy, enters upon his office.
(5)
When the Chairperson
is unable to discharge his functions owing to absence, illness or any other
cause, the senior-most Member shall discharge the functions of the Chairperson
until the date on which the Chairperson resumes the charge of his functions.]
Section 11 - Resignation, removal and suspension of Chairperson and other Members
(1)
The Chairperson or
any other Member may, by notice in writing under his hand addressed to the
Central Government, resign his office:
Provided that the Chairperson or a Member shall,
unless he is permitted by the Central Government to relinquish his office
sooner, continue to hold office until the expiry of three months from the date
of receipt of such notice or until a person duly appointed as his successor
enters upon his office or until the expiry of his term of office, whichever is
the earliest.
(2)
Notwithstanding
anything contained in sub-section (1),the Central Government may, by order,
remove the Chairperson or any other Member from his office if such Chairperson
or Member, as the case may be,
(a)
is, or at any time
has been, adjudged as an insolvent: or
(b)
has engaged at any
time, during his term of office, in any paid employment: or
(c)
has been convicted of
an offence which, in the opinion of the Central Government, involves moral
turpitude: or
(d)
has acquired such
financial or other interest as is likely to affect prejudicially his functions
as a Member: or
(e)
has so abused his
position as to render his continuance in office prejudicial to the public
interest: or
(f)
has become physically
or mentally incapable of acting as a Member.
(3)
Notwithstanding
anything contained in sub-section (2),no Member shall be removed from his
office on the ground specified in clause(d) or clause (e) of that sub-section
unless the Supreme Court, on a reference being made to it in this behalf by the
Central Government, has, on an inquiry, held by it in accordance with such
procedure as may be prescribed in this behalf by the Supreme Court, reported
that the Member, ought on such ground or grounds to be removed.]
Section 12. [Restriction on employment of Chairperson and other Members.
(1)
The Chairperson and other Members shall, for a
period of two years from the date on which they cease to hold office, not
accept any employment in or advise as a consultant, retainer or in any other
capacity whatsoever, or be connected with the management or administration of-
(a)
any enterprise which is or has been a party
to a proceeding before the Commission under this Act; or
(b)
any person who appears or has appeared before
the Commission under section 35.
(2)
Notwithstanding anything contained in section
35, the Chairperson or any other Member after retirement or otherwise ceasing
to be in service for any reason shall not represent for any person or
enterprise before the Commission:
Provided that nothing
contained in this section shall apply to any employment under the Central
Government or a State Government or local authority or in any statutory
authority or any corporation established by or under any Central, State or
Provincial Act or a Government company as defined in clause (45) of section 2
of the Companies Act, 2013.".]
Section 13 - Administrative powers of Chairpersons
The Chairperson shall have the powers of general
superintendence, direction and control in respect of all administrative matters
of the Commission:
Provided that the Chairperson may delegate such of his
powers relating to administrative matters of the Commission, as he may think
fit, to any other Member or officer of the Commission.]
Section 14 - Salary and allowances and other terms and conditions of service of Chairperson and other Members
(1)
The salary, and the
other terms and conditions of service, of the Chairperson and other Members,
including travelling expenses, house rent allowance and conveyance facilities,
sumptuary allowance and medical facilities shall be such as may be prescribed.
(2)
The salary,
allowances and other terms and conditions of service of the Chairperson or a
Member shall not be varied to his disadvantage after appointment.]
Section 15 - Vacancy, etc., not to invalidate proceedings of Commission
No act or proceeding of the Commission shall be
invalid merely by reason of
(a)
any vacancy in, or
any defect in the constitution of, the Commission: or
(b)
any defect in the
appointment of a person acting as a Chairperson or as a Member: or
(c)
any irregularity in
the procedure of the Commission not affecting the merits of the case.]
Section 16 - Appointment of Director-General, etc.
[(1) The [Commission may, with the prior approval of
the Central Government], appoint a Director
General for the purposes of assisting the Commission in conducting inquiry into
contravention of any of the provisions of this Act and for performing such
other functions as are, or may be, provided by or under this Act.
(1A) The number of
other Additional, Joint, Deputy or Assistant Directors General or such officers
or other employees in the office of Director General and the manner of
appointment of such Additional, Joint, Deputy or Assistant Directors General or
such officers or other employees shall be such as may be prescribed.]
(2) Every Additional, Joint, Deputy and
Assistant Directors General or [such officers or other employees,] shall
exercise his powers, and discharge his functions, subject to the general
control, supervision and direction of the Director General.
(3) The salary, allowances and other terms and
conditions of service of the Director General and Additional, Joint, Deputy and
Assistant Directors General or [such officers or
other employees,] shall be such as may be prescribed.
(4) The Director General and Additional, Joint,
Deputy and Assistant Directors General or [such officers or other employees,]
shall be appointed from amongst persons of integrity and outstanding ability
and who have experience in investigation, and knowledge of accountancy,
management, business, public administration, international trade, law or
economics and such other qualifications as may be prescribed.
Section 17 - Appointment of Secretary, experts professionals and officers and other employees and other employees of Commission
(1)
The Commission may
appoint a Secretary and such officers and other employees as it considers
necessary for the efficient performance of its functions under this Act.
(2)
The salaries and
allowances payable to, and other terms and conditions of service of, the
Secretary and officers and other employees of the Commission and the number of
such officers and other employees shall be such as may be prescribed.
(3)
The Commission may
engage, in accordance with the procedure specified by regulations, such number
of experts and professionals of integrity and outstanding ability, who have
special knowledge of, and experience in, economics, law, business or such other
disciplines related to competition, as it deems necessary to assist the
Commission in the discharge of its functions under this Act.]
(4)
The salaries and
allowances payable to and other terms and conditions of service of the
Registrar and officers and other employees of the Commission and the number of
such officers and other employees shall be such as may be prescribed."
Section 18 – [Duties and functions of Commission.
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:
Provided further
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 any statutory authority or department of Government.".]
Section 19 - Inquiry into certain agreements and dominant position of enterprise
[(1) The Commission
may inquire into any alleged contravention of the provisions contained in
sub-section (1) of section 3 or sub-section (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.
["Provided that the Commission shall not entertain an information or a
reference unless it is filed within three years from the date on which the
cause of action has arisen:
Provided further that
an information or a reference may be entertained after the period specified in
the first proviso if the Commission is satisfied that there had been sufficient
cause for not filing the information or the reference within such period after
recording its reasons for condoning such delay.";]
(2) Without prejudice to the provisions
contained in sub-section (1), the powers and functions of the Commission shall
include the powers and functions specified in sub-sections (3) to (7).
(3) The Commission shall, while determining
whether an agreement has an appreciable adverse effect on competition under
section 3, have due regard to all or any of the following factors, namely:
(a)
creation of barriers
to new entrants in the market:
(b)
driving existing
competitors out of the market:
(c)
foreclosure of
competition [***]:
(d)
[benefits or harm] to consumers:
(e)
improvements in
production or distribution of goods or provision of services:
(f)
promotion of
technical, scientific and economic development by means of production or distribution
of goods or provision of services.
(4) The Commission shall, while inquiring
whether an enterprise enjoys a dominant position or not under section4, have
due regard to all or any of the following factors, namely:
(a)
market share of the
enterprise:
(b)
size and resources of
the enterprise:
(c)
size and importance
of the competitors:
(d)
economic power of the
enterprise including commercial advantages over competitors:
(e)
vertical integration
of the enterprises or sale or service network of such enterprises:
(f)
dependence of
consumers on the enterprise:
(g)
monopoly or dominant
position whether acquired as a result of any statute or by virtue of being a
Government company or a public sector undertaking or otherwise:
(h)
entry barriers
including barriers such as regulatory barriers, financial risk, high capital
cost of entry, marketing entry barriers, technical entry barriers, economies of
scale, high cost of substitutable goods or service for consumers:
(i)
countervailing buying
power:
(j)
market structure and
size of market:
(k)
social obligations
and social costs:
(l)
relative advantage,
by way of the contribution to the economic development, by the enterprise
enjoying a dominant position having or likely to have an appreciable adverse
effect on competition:
(m)
any other factor which
the Commission may consider relevant for the inquiry.
(5) For determining whether a market constitutes
a "relevant market" for the purposes of this Act, the Commission
shall have due regard to the "relevant geographic market" and
"relevant product market".
(6) The Commission shall, while determining the
"relevant geographic market", have due regard to all or any of the
following factors, namely:
(a)
regulatory trade
barriers:
(b)
local specification
requirements:
(c)
national procurement
policies:
(d)
adequate distribution
facilities:
(e)
transport costs:
(f)
language:
(g)
consumer preferences:
(h)
need for secure or
regular supplies or rapid after-sales services.
["(i)
characteristics of goods or nature of services;
(j)
costs associated with switching supply
or demand to other areas.";]
(7) The Commission shall, while determining the
"relevant product market", have due regard to all or any of the
following factors, namely:
(a)
physical
characteristics or end-use of goods [or the nature of services]:
(b)
price of goods or service:
(c)
consumer preferences:
(d)
exclusion of in-house
production:
(e)
existence of
specialised producers:
(f)
classification of
industrial products.]
["(g)
costs associated with switching demand or supply to other goods or services;
(h)
categories of customers.".]
Section 20 - Inquiry into combination by Commission
(1)
The Commission may,
upon its own knowledge or information relating to acquisition referred to in
clause (a) of section 5 or acquiring of control referred to in clause (b) of
section 5 or merger or amalgamation referred to in [clause (c) of section 5 or acquisition of any
control, shares, voting right or assets of an enterprise, merger or
amalgamation referred to in clause (d) of that section], inquire into
whether such a combination has caused or is likely to cause an appreciable
adverse effect on competition in India:
Provided that the Commission shall not initiate any
inquiry under this sub-section after the expiry of one year from the date on
which such combination has taken effect.
(2)
The Commission shall,
on receipt of a notice under sub-section (2) of section 6 [* * *], inquire
whether a combination referred to in that notice or reference has caused or is
likely to cause an appreciable adverse effect on competition in India.
(3)
Notwithstanding
anything contained in section 5, the Central Government shall, on the expiry of
a period of two years from the date of commencement of this Act and thereafter
every two years, in consultation with the Commission, [enhance or reduce by notification, or keep at
the same level, on the basis of the wholesale price index or fluctuations in
exchange rate of rupee or foreign currencies, or such factors that in its
opinion are relevant in this matter, the value of assets or the value of
turnover or value of transaction], for the purposes of
that section.
(4)
For the purposes of
determining whether a combination would have the effect of or is likely to have
an appreciable adverse effect on competition in the relevant market, the
Commission shall have due regard to all or any of the following factors,
namely:
(a)
actual and potential
level of competition through imports in the market:
(b)
extent of barriers to
entry into the market:
(c)
level of [concentration] in the market:
(d)
degree of
countervailing power in the market:
(e)
likelihood that the
combination would result in the parties to the combination being able to
significantly and sustainably increase prices or profit margins:
(f)
extent of effective
competition likely to sustain in a market:
(g)
extent to which
substitutes are available or are likely to be available in the market:
(h)
market share, in the
relevant market, of the persons or enterprise in a combination, individually
and as a combination:
(i)
likelihood that the
combination would result in the removal of a vigorous and effective competitor
or competitors in the market:
(j)
nature and extent of
vertical integration in the market:
(k)
possibility of a
failing business:
(l)
nature and extent of
innovation:
(m)
relative advantage,
by way of the contribution to the economic development, by any Combination
having or likely to have appreciable adverse effect on competition:
(n)
whether the benefits
of the combination outweigh the adverse impact of the combination, if any.
Section 21 - Reference by statutory authority
[(1) Where in the
course of a proceeding before any statutory authority an issue is raised by any
party that any decision which such statutory authority has taken or proposes to
take, is or would be, contrary to any of the provisions of this Act, then such
statutory authority may make a reference in respect of such issue to the
Commission.
["Provided
that any statutory authority, may, suo motu, make a reference to the Commission
on any issue that involves any provision of this Act or is related to promoting
the objectives of this Act, as the case may be.".]
[(2) On receipt of a reference under sub-section (1), the Commission
shall give its opinion, within sixty days of receipt of such reference, to such
statutory authority which shall consider the opinion of the Commission and thereafter,
give its findings recording reasons therefore on the issues referred to in the
said opinion.]]
Section 21A - Reference by Commission
(1)
Where in the course
of a proceeding before the Commission an issue is raised by any party that any
decision which, the Commission has taken during such proceeding or proposes to
take, is or would be contrary to any provision of [An Act] whose implementation
is entrusted to a statutory authority, then the Commission may make a reference
in respect of such issue to the statutory authority:
["Provided
that the Commission, may, suo motu, make a reference to a statutory authority
on any issue that involves provisions of an Act whose implementation is
entrusted to that statutory authority.".]
(2)
On receipt of a
reference under sub-section (1), the statutory authority shall give its
opinion, within sixty days of receipt of such reference, to the Commission
which shall consider the opinion of the statutory authority, and thereafter
give its findings recording reasons therefore on the issues referred to in the
said opinion.]
Section 22 - Meetings of Commission
(1)
The Commission shall meet at such times and such places, and shall
observe such rules of procedure in regard to the transaction of business at its
meetings as may be provided by regulations.
(2)
The Chairperson, if for any reason, is unable to attend a meeting of the
Commission, the senior-most Member present at the meeting, shall preside at the
meeting.
(3)
All questions which come up before any meeting of the Commission shall be
decided by a majority of the Members present and voting, [***]:
Provided that the quorum for
such meeting shall be three Members.]
Section 23 - Distribution of business of Commission amongst Benches [Omitted]
[Omitted]
Section 24 - Procedure for deciding a case where Members of a Bench differ in opinion [Omitted]
[Omitted]
Section 25 - Jurisdiction of Bench [Omitted]
[Omitted]
Section 26 - Procedure for inquiry on complaints under section 19
(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 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.
["(2A)
The Commission may not inquire into agreement referred to in section 3 or
conduct of an enterprise or group under section 4, if the same or substantially
the same facts and issues raised in the information received under section 19
or reference from the Central Government or a State Government or a statutory
authority has already been decided by the Commission in its previous
order.";]
(3) The Director General shall, on receipt of direction
under sub-section (1), submit a report on his findings within such period as
may be specified by the Commission.
["(3A)
If, after consideration of the report of the Director General referred to in
sub-section (3), the Commission is of the opinion that further investigation is
required, it may direct the Director General to investigate further into the
matter.
(3B)
The Director General shall, on receipt of direction under sub-section (3A),
investigate the matter and submit a supplementary report on his findings within
such period as may be specified by the Commission.";]
(4) The Commission may forward a copy of the report
referred to in [sub-sections (3) and (3B)] to the parties
concerned:
Provided that in case the investigation is caused to
be made based on a reference received from the Central Government or the State
Government or the statutory authority, the Commission shall forward a copy of
the report referred to in sub-section (3) to the Central Government or the
State Government or the statutory authority, as the case may be.
(5)
If the report of the
Director General referred to in [sub-sections (3) and (3B)] recommends that
there is no contravention of the provisions of this Act, the Commission shall
invite objections or suggestions from the Central Government or the State
Government or the statutory authority or the parties concerned, as the case may
be, on such report of the Director General.
(6)
If, after
consideration of the objections or suggestions referred to in sub-section (5),
if any, the Commission agrees with the recommendation of the Director General,
it shall close the matter forthwith and pass such orders as it deems fit and
communicate its order to the Central Government or the State Government or the
statutory authority or the parties concerned, as the case may be.
(7)
If, after
consideration of the objections or suggestions referred to in sub-section (5),
if any, the Commission is of the opinion that further investigation is called
for, it may direct further investigation in the matter by the Director General
or cause further inquiry to be made in the matter or itself proceed with
further inquiry in the matter in accordance with the provisions of this Act.
(8)
If the report of the
Director General referred to in [sub-sections (3) and (3B)] recommends that
there is contravention of any of the provisions of this Act, and the Commission
is of the opinion that further inquiry is called for, it shall inquire into
such contravention in accordance with the provisions of this Act.]]
["(9)
Upon completion of the
investigation or inquiry under sub-section (7) or sub-section (8), as the case
may be, the Commission may pass an order closing the matter or pass an order
under section 27, 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:
Provided that before passing such order, the Commission shall issue a
show-cause notice indicating the contraventions alleged to have been committed
and such other details as may be specified by regulations and give a reasonable
opportunity of being heard to the parties concerned.".]
Section 27 - Orders by Commission after inquiry into agreements or abuse of dominant position
[Where after inquiry
the Commission finds that any agreement referred to in section 3 or action of
an enterprise in a dominant position, is in contravention of section 3 or
section 4, as the case may be, it may pass all or any of the following orders,
namely:
(a)
direct any enterprise
or association of enterprises or person or association of persons, as the case
may be, involved in such agreement, or abuse of dominant position, to
discontinue and not to re-enter such agreement or discontinue such abuse of
dominant position, as the case may be:
(b) [impose such penalty,
as it may deem fit which shall be not more than ten per cent. of the average of
the turnover or income, as the case may be, for the last three preceding
financial years, upon each of such person or enterprise which is a party to
such agreement or has abused its dominant position:
Provided that in case
any agreement referred to in section 3 has been entered into by a cartel, the
Commission may impose upon each producer, seller, distributor, trader or
service provider included in that cartel, a penalty of up to three times of its
profit for each year of the continuance of such agreement or ten per cent. of
its turnover or income, as the case may be, for each year of the continuance of
such agreement, whichever is higher.
Explanation 1.-For
the purposes of this clause, the expression "turnover" or
"income", as the case may be, shall be determined in such manner as
may be specified by regulations.
Explanation 2.-For
the purposes of this clause, "turnover" means global turnover derived
from all the products and services by a person or an enterprise.]
(c)
[* * *]
(d) direct that the agreements shall stand
modified to the extent and in the manner as may be specified in the order by
the Commission:
(e) direct the enterprises concerned to abide by
such other orders as the Commission may pass and comply with the directions,
including payment of costs, if any:
[* * *]
(g) pass such other [order or issue such directions] as it may deem
fit.
[Provided that while passing orders under this section, if the Commission
comes to a finding, that an enterprise in contravention to section 3 or section
4 of the Act is a member of a group as defined in clause (b) of the Explanation
to section 5 of the Act, and other members of such a group are also responsible
for, or have contributed to, such a contravention, then it may pass orders,
under this section, against such members of the group.]]
Section 28 - Division of enterprise enjoying dominant position
[(1) The [Commission], may, notwithstanding anything contained
in any other law for the time being in force, by order in writing, direct
division of an enterprise enjoying dominant position to ensure that such
enterprise does not abuse its dominant position.
(2) In particular, and without prejudice to the
generality of the foregoing powers, the order referred to in sub-section (1)
may provide for all or any of the following matters, namely:
(a)
the transfer or
vesting of property, rights, liabilities or obligations:
(b) the adjustment of contracts either by discharge or
reduction of any liability or obligation or otherwise:
(c) the creation, allotment, surrender or cancellation of
any shares, sks or securities:
(d) [* * *]
(e) the formation or winding up of an enterprise or the amendment
of the memorandum of association or articles of association or any other
instruments regulating the business of any enterprise:
(f) the extent to which, and the circumstances in which,
provisions of the order affecting an enterprise may be altered by the
enterprise and the registration thereof:
(g) any other matter which may be necessary to give effect
to the division of the enterprise.
(3) Notwithstanding
anything contained in any other law for the time being in force or in any
contract or in any memorandum or articles of association, an officer of a
company who ceases to hold office as such in consequence of the division of an
enterprise shall not be entitled to claim any compensation for such cesser.]
Section 29 - Procedure for investigation of combinations
(1)
Where the Commission
is of the [prima facie] opinion that a combination is
likely to cause, or has caused an appreciable adverse effect on competition
within the relevant market in India, it shall issue a notice to show cause to
the parties to combination calling upon them to respond [within fifteen days] of the receipt of the notice, as to why investigation
in respect of such combination should not be conducted.
[(1A) After receipt of the response of the parties to
the combination under sub-section (1), the Commission may call for a report
from the Director General and such report shall be submitted by the Director
General within such time as the Commission may direct.]
"(1B) The Commission shall,
within thirty days of receipt of notice under sub-section (2) of section 6,
form its prima facie opinion referred to in sub-section (1).";
(2)
The Commission, if it
is prima facie of the opinion that the combination has, or is likely to have,
an appreciable adverse effect on competition, it shall, [within seven days] from the date of receipt of the response of the
parties to the combination, [or the receipt of the report from Director General
called under sub-section (1A), whichever is later] direct the parties to the
said combination to publish details of the combination [within seven days] of such direction, in such manner, as it thinks
appropriate, for bringing the combination to the knowledge or information of
the public and persons affected or likely to be affected by such combination.
(3)
The Commission may
invite any person or member of the public, affected or likely to be affected by
the said combination, to file his written objections, if any, before the
Commission [within ten days] from the date on which the details of the combination
were published under sub-section (2).
(4)
The Commission may, [within seven days] from the expiry of the period specified in
sub-section (3), call for such additional or other information as it may deem fit
from the parties to the said combination.
(5)
The additional or
other information called for by the Commission shall be furnished by the
parties referred to in sub-section (4) [within ten days] from the expiry of the period specified in
sub-section (4).
(6)
["After
receipt of all information, the Commission shall proceed to deal with the case
in accordance with the provisions contained in section 29A or section 31, as
the case may be.
(7)
Notwithstanding
anything contained in this section, the Commission may accept appropriate
modifications offered by the parties to the combination or suo motu propose
modifications, as the case may be, before forming a prima facie opinion under
sub-section (1).".]
Section 29A – [Issue of statement of objections by Commission and proposal of modifications.
(1) Upon
completion of the process under section 29, where the Commission is of the
opinion that the combination has, or is likely to have, an appreciable adverse
effect on competition, it shall issue a statement of objections to the parties
identifying such appreciable adverse effect on competition and direct the
parties to explain within twenty-five days of receipt of the statement of
objections, why such combination should be allowed to take effect.
(2) Where
the parties to the combination consider that such appreciable adverse effect on
competition can be eliminated by suitable modification to such combination,
they may submit an offer of appropriate modification to the combination along
with their explanation to the statement of objections issued under sub-section
(1) in such manner as may be specified by regulations.
(3) If
the Commission does not accept the modification submitted by the parties under
sub-section (2) it shall, within seven days from the date of receipt of the proposed
modifications under that sub-section, communicate to the parties as to why the
modification is not sufficient to eliminate the appreciable adverse effect on
competition and call upon the parties to furnish, within twelve days of the
receipt of the said communication, revised modification, if any, to eliminate
the appreciable adverse effects on competition:
Provided
that the Commission shall evaluate such proposal for modification within twelve
days from receipt of such proposal:
Provided
further that the Commission may suo motu propose appropriate modifications to
the combination which may be considered by the parties to the
combination.".]
Section 30 - Procedure in case of notice under sub-section (2) of section 6
Where any person or
enterprise has given a notice under sub-section (2) of section 6, the
Commission shall examine such notice and form its prima facie opinion as
provided in sub-section (1) of section 29 and proceed as per provisions
contained in that section.]
Section 31 - Orders of Commission on [***][141]combinations
(1)
Where the Commission
is of the opinion that any combination does not, or is not likely to, have an
appreciable adverse effect on competition, it shall, by order, approve that
combination [***] in respect of which a notice has been given
under sub-section (2) of section 6.
["Provided
that if the Commission does not form a prima facie opinion as provided under
sub-section (1B) of section 29, the combination shall be deemed to have been
approved and no separate order shall be required to be passed.";]
(2)
Where the Commission
is of the opinion that the combination has, or is likely to have, an
appreciable adverse effect on competition, it shall direct that the combination
shall not take effect.
(3)
"[Where the Commission is of the opinion
that any appreciable adverse effect on competition that the combination
has, or is likely to have, can be eliminated by modification proposed by the
parties or the Commission, as the case may be, under sub-section (7) of section
29 or sub-section (2) or sub-section (3) of section 29A, it may approve the
combination subject to such modifications as it thinks fit.
(4)
Where a combination is approved by the
Commission under sub-section (3), the parties to the combination shall carry
out such modification within such period as may be specified by the Commission.
(5)
Where-
(a) the
Commission has directed under sub-section (2) that the combination shall not
take effect; or
(b) the
parties to the combination, fail to carry out the modification within such
period as may be specified by the Commission under sub-section (4); or
(c) the
Commission is of the opinion that the combination has, or is likely to have, an
appreciable adverse effect on competition which cannot be eliminated by suitable
modification to such combination, then, without prejudice to any penalty which
may be imposed or any prosecution which may be initiated under this Act, the
Commission may order that such combination shall not be given effect to, or be
declared void, or frame a scheme to be implemented by the parties to address
the appreciable adverse effect on competition, as the case may be.
(6)
If no order is passed or direction issued by the
Commission in accordance with the provisions of sub-section (1) or sub-section
(2) or sub-section (3) or sub-section (5), as the case may be, within a period
of one hundred and fifty days from the date of notice given to the Commission
under sub-section (2) of section 6, the combination shall be deemed to have
been approved by the Commission.";]
[****]
(13) Where the Commission has ordered a combination
to be void, the acquisition or acquiring of control or merger or amalgamation
referred to in section 5, shall be dealt with by the authorities under any
other law for the time being in force as if such acquisition or acquiring of
control or merger or amalgamation had not taken place and the parties to the
combination shall be dealt with accordingly.
(14) Nothing
contained in this Chapter shall affect any proceeding initiated or which may be
initiated under any other law for the time being in force.
Section 32 - Acts taking place outside India but having an effect on competition in India
[The Commission shall, notwithstanding that,
(a)
an agreement referred
to in section 3 has been entered into outside India: or
(b)
any party to such
agreement is outside India: or
(c)
any enterprise
abusing the dominant position is outside India: or
(d)
a combination has
taken place outside India: or
(e)
any party to
combination is outside India: or
(f)
any other matter or
practice or action arising out of such agreement or dominant position or
combination is outside India, have power to inquire [in accordance with the provisions contained in
sections 19, 20, 26, [29, 29A and 30] of the Act] into such agreement or abuse of dominant
position or combination if such agreement or dominant position or combination
has, or is likely to have, an appreciable adverse effect on competition in the
relevant market in India [and pass such orders as it may deem fit in accordance
with the provisions of this Act].]
Section 33 - Power to issue interim orders
Where during an inquiry, the Commission is satisfied that an act in
contravention of sub-section (1) of section 3 or sub-section (1) of section 4
or section 6 has been committed and continues to be committed or that such act
is about to be committed, the Commission may, by order, temporarily restrain
any party from carrying on such act until the conclusion of such inquiry or
until further orders, without giving notice to such party, where it deems it
necessary.]]
Section 34 - Power to award compensation [Omitted]
[ * * * ]
Section 35 - Appearance before Commission
[154][155]
Section 36 - Power of Commission to regulate its own procedure
(1)
In the discharge of
its functions, the Commission shall be guided by the principles of natural
justice and, subject to the other provisions of this Act and of any rules made
by the Central Government, the Commission shall have the powers to regulate its
own procedure.
(2)
The Commission shall
have, for the purposes of discharging its functions under this Act, the same
powers as are vested in a Civil Court under the Code of Civil Procedure, 1908
(5 of 1908), while trying a suit, in respect of the following matters, namely:
(a)
summoning and
enforcing the attendance of any person and examining him on oath:
(b)
requiring the
discovery and production of documents:
(c)
receiving evidence on
affidavit:
(d)
issuing commissions
for the examination of witnesses or documents:
(e)
requisitioning,
subject to the provisions of sections 123 and 124 of the
Indian Evidence Act, 1872(1 of 1872), any public record or document or copy of
such record or document from any office.
(3)
The Commission may
call upon such experts, from the fields of economics, commerce, accountancy,
international trade or from any other discipline as it deems necessary, to
assist the Commission in the conduct of any inquiry by it.
(4)
The Commission may
direct any person
(a)
to produce before the
Director General or the Secretary or an officer authorised by it, such books or
other documents in the custody or under the control of such person so directed
as may be specified or described in the direction, being documents relating to
any trade, the examination of which may be required for the purposes of this
Act:
(b)
to furnish to the
Director General or the Secretary or any other officer authorised by it, as
respects the trade or such other information as may be in his possession in
relation to the trade carried on by such person as may be required for the
purposes of this Act.]
Section 37 - Review of orders of Commission [Omitted]
[* * *]
Section 38 - Rectification of orders
[(1) With a view to rectifying any mistake apparent
from the record, the Commission may amend any order passed by it under the
provisions of this Act.
(2) Subject to the other provisions of this Act, the
Commission may make
(a)
an amendment under
sub-section (1) of its own motion:
(b)
an amendment for
rectifying any such mistake which has been brought to its notice by any party
to the order.
Explanation. For the
removal of doubts, it is hereby declared that the Commission shall not, while
rectifying any mistake apparent from record, amend substantive part of its
order passed under the provisions of this Act.]
Section 39 - Execution of order of Commission imposing monetary penalty
(1)
If a person fails to pay any monetary penalty imposed on him under this
Act, the Commission shall proceed to recover such penalty in such manner as may
be specified by the regulations.
(2)
In a case where the Commission is of the opinion that it would be
expedient to recover the penalty imposed under this Act in accordance with the
provisions of the Income-tax Act, 1961(43 of 1961), it may make a reference to
this effect to the concerned income-tax authority under that Act for recovery of
the penalty as tax due under the said Act.
(3)
Where a reference has been made by the Commission under sub-section (2)
for recovery of penalty, the person upon whom the penalty has been imposed
shall be deemed to be the assessee in default under the Income-tax Act, 1961(43
of 1961) and the provisions contained in sections 221 to
227, 228A, 229, 231 and 232 of the said Act and
the Second Schedule to that Act and any rules made there under shall, in so far
as may be, apply as if the said provisions were the provisions of this Act and
referred to sums by way of penalty imposed under this Act instead of to
income-tax and sums imposed by way of penalty, fine and interest under the
Income-tax Act, 1961 and to the Commission instead of the Assessing Officer.
Explanation 1.Any reference to sub-section (2) or sub-section (6)
of section 220 of the Income-tax Act, 1961(43 of 1961), in the said
provisions of that Act or the rules made there under shall be construed as
references to sections 43 to 45 of this Act.
Explanation 2.The Tax Recovery Commissioner and the Tax Recovery Officer
referred to in the Income-tax Act, 1961(43 of 1961) shall be deemed to be the
Tax Recovery Commissioner and the Tax Recovery Officer for the purposes of
recovery of sums imposed by way of penalty under this Act and reference made by
the Commission under sub-section (2) would amount to drawing of a certificate
by the Tax Recovery Officer as far as demand relating to penalty under this
Act.
Explanation 3. Any reference to appeal in Chapter XVIID and the Second
Schedule to the Income-tax Act, 1961(43 of 1961), shall be construed as a
reference to appeal before the Competition Appellate Tribunal under section 53B
of this Act.]
Section 40 - Appeal [Omitted]
[* * *]
Section 41 - Director-General to investigate contraventions
[(1) The Director General shall, when so directed by
the Commission, assist the Commission in investigating into any contravention
of the provisions of this Act or any rules or regulations made there under.
(2) The
Director General shall have all the powers as are conferred upon the Commission
under sub-section (2) of section 36.
(3) Without
prejudice to the provisions of sub-section (2), sections
240 and 240A of [the Companies Act, 2013] [18 of 2013], so far as may be, shall apply to an investigation
made by the Director General or any other person investigating under his
authority, as they apply to an inspector appointed under that Act.
[Explanation. For the purposes of this section,
(a)
the words "the Central
Government" under section 240 of [the Companies Act,
2013] [18 of 2013] shall be construed as "the Commission":
(b)
the word
"Magistrate" under section 240A of [the Companies Act,
2013] [18 of 2013] shall be construed as "the Chief Metropolitan
Magistrate, Delhi"]]
Section 42 - Contravention of orders of Commission
(1)
The Commission may cause an inquiry to be made
into compliance of its orders or directions made in exercise of its powers
under the Act.
(2)
If any person, without reasonable cause, fails
to comply with the orders or directions of the Commission issued under [sections
6, 27, 28, 31, 32, 33, 42A, 43, 43A, 44 and 45 of the Act, he shall be liable
to a penalty] which may extend to rupees one lakh for each day during which
such non-compliance occurs, subject to a maximum of rupees ten crore, as the
Commission may determine.
(3)
If any person does not comply with the orders or
directions issued, or fails to [pay the penalty imposed under sub-section (2)], he shall, without
prejudice to any proceeding under section 39, be punishable with imprisonment
for a term which may extend to three years, or with fine which may extend to
rupees twenty-five crore, or with both, as the Chief Metropolitan Magistrate,
Delhi may deem fit:
Provided that the Chief
Metropolitan Magistrate, Delhi shall not take cognizance of any offence under
this section save on a complaint filed by the Commission or any of its officers
authorised by it.]]
Section 42A - Compensation in case of contravention of orders of Commission
[Without
prejudice to the provisions of this Act, any person may make an application to
the Appellate Tribunal for an order for the recovery of compensation from any
enterprise for any loss or damage shown to have been suffered, by such person
as a result of the said enterprise violating directions issued by the
Commission or contravening, without any reasonable ground, any decision or
order of the Commission issued [under
sections 6, 27], 28, 31, 32 and 33 or any condition or restriction subject to
which any approval, sanction, direction or exemption in relation to any matter
has been accorded, given, made or granted under this Act or delaying in
carrying out such orders or directions of the Commission.]
Section 43 - Penalty for failure to comply with directions of Commission and Director General
If
any person fails to comply, without reasonable cause, with a direction given by
(a)
the Commission under sub-sections (2) and (4) of
section 36: or
(b) the
Director General while exercising powers referred to in sub-section (2) of
section 41,
such person [shall be
liable to a penalty]
which may extend to rupees one lakh for each day during which such failure
continues subject to a maximum of rupees one crore, as may be determined by the
Commission.]]
Section 43A - [Power to impose penalty for non-furnishing of information on combination
If any person or enterprise fails to give notice to the Commission
under sub-section (2) or sub-section (4) of section 6 or contravenes
sub-section (2A) of section 6 or submit information pursuant to an inquiry
under sub-section (1) of section 20, the Commission may impose on such person
or enterprise, a penalty which may extend to one per cent., of the total
turnover or assets or the value of transaction referred to in clause (d) of
section 5, whichever is higher, of such a combination:
Provided that in case any person or enterprise has given a notice
under sub-section (4) of section 6 and such notice is found to be void ab
initio under sub-section (6) of section 6, then a notice under sub-section (2)
of section 6 may be given by the acquirer or parties to the combination, as may
be applicable, within a period of thirty days of the order of the Commission
under sub-section (6) of that section and no action under this section shall be
taken by the Commission till the expiry of such period of thirty days.]
Section 44 - Penalty for making false statement or omission to furnish material information
If any person, being a party to a
combination,
(a)
makes a statement which is false in any material
particular, or knowing it to be false: or
(b)
omits to state any material particular knowing
it to be material, such person shall be liable to a penalty which shall not be
less than rupees fifty lakhs but which may extend to [rupees five crore],
as may be determined by the Commission.
Section 45 - Penalty for [179][contraventions] in relation to furnishing of information
[[(1)
Without prejudice to the provisions of [sub-section (6) of section 6 and] section 44, if a person, who
furnishes or is required to furnish under this Act any particulars, documents
or any information,
(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)
willfully alters, suppresses or destroys any
document which is required to be furnished as aforesaid,
such person shall be [liable to a penalty] 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.
Section 46 – [Power to impose lesser penalty
(1)
The Commission may, if
it is satisfied that any producer, seller, distributor, trader or service
provider included in any cartel, which is alleged to have violated section 3,
has made a full and true disclosure in respect of the alleged violations and such
disclosure is vital, impose upon such producer, seller, distributor, trader or
service provider a lesser penalty as may be specified by regulations, than
leviable under this Act or the rules or the regulations made under this Act:
Provided that lesser penalty shall not be imposed by the
Commission in cases where the report of investigation directed under section 26
has been received before making of such disclosure:
Provided further that lesser penalty shall be imposed by the
Commission only in respect of a producer, seller, distributor, trader or
service provider included in the cartel, who has made the full, true and vital
disclosures under this section:
Provided also that lesser penalty shall not be imposed by the
Commission if the person making the disclosure does not continue to co-operate
with the Commission till the completion of the proceedings before the
Commission:
Provided also that the Commission may, if it is satisfied that
such producer, seller, distributor, trader or service provider included in the
cartel had in the course of proceedings,--
(a)
not complied with the
condition on which the lesser penalty was imposed by the Commission; or
(b)
had given false
evidence; or
(c)
the disclosure made is
not vital,
and thereupon such producer, seller, distributor, trader or
service provider may be tried for the contravention with respect to which the
lesser penalty was imposed and shall also be liable to the imposition of
penalty to which such person has been liable, had lesser penalty not been
imposed.
(2) The Commission may allow a producer, seller,
distributor, trader or service provider included in the cartel, to withdraw its
application for lesser penalty under this section, in such manner and within
such time as may be specified by regulations.
(3) Notwithstanding anything contained in
sub-section (2), the Director General and the Commission shall be entitled to
use for the purposes of this Act, any evidence submitted by a producer, seller,
distributor, trader or service provider in its application for lesser penalty,
except its admission.
(4)
Where during the course
of the investigation, a producer, seller, distributor, trader or service
provider who has disclosed a cartel under sub-section (1), makes a full, true
and vital disclosure under sub-section (1) with respect to another cartel in
which it is alleged to have violated section 3, which enables the Commission to
form a prima facie opinion under sub-section (1) of section 26 that there
exists another cartel, then the Commission may impose upon such producer, seller,
distributor, trader or service provider a lesser penalty as may be
specified by regulations, in respect of the cartel already being investigated,
without prejudice to the producer, seller, distributor, trader or service
provider obtaining lesser penalty under sub-section (1) regarding the newly
disclosed cartel.]
Section 47 - Crediting sums realised by way of penalties to Consolidated Fund of India
[All sums realised by
way of penalties [and recovery of legal costs by the Commission] under this Act shall
be credited to the Consolidated Fund of India.]
Section 48 - Contravention by companies
(1)
Where a person
committing contravention of any of the provisions of this Act or of any rule,
regulation, order made or direction issued thereunder is a company, every
person who, at the time the contravention was committed, was in charge of, and
was responsible to the company for the conduct of the business of the company,
as well as the company, shall be deemed to be in contravention of this Act and
unless otherwise provided in this Act, the Commission may impose such penalty
on such persons, as it may deem fit which shall not be more than ten per cent.
of the average of the income for the last three preceding financial years:
Provided that in case any agreement referred to in sub-section (3)
of section 3 has been entered into by a cartel, the Commission may unless
otherwise provided in this Act, impose upon such persons referred to in
sub-section (1), a penalty of up to ten per cent. of the income for each year
of the continuance of such agreement.
(2)
Nothing contained in
sub-section (1) shall render any such person liable to any penalty if he proves
that the contravention was committed without his knowledge or that he had
exercised all due diligence to prevent the commission of such contravention.
(3)
Notwithstanding anything
contained in sub-section (1), where a contravention of any of the provisions of
this Act or of any rule, regulation, order made or direction issued thereunder
has been committed by a company and it is proved that the contravention has
taken place with the consent or connivance of, or is attributable to any
neglect on the part of, any director, manager, secretary or other officers of
the company, such director, manager, secretary or other officers shall also be
deemed to be in contravention of the provisions of this Act and unless
otherwise provided in this Act, the Commission may impose such penalty on such
persons, as it may deem fit which shall not be more than ten per cent. of the average
of the income for the last three preceding financial years:
Provided that in case any agreement referred to in sub-section (3)
of section 3 has been entered into by a cartel, the Commission may, unless
otherwise provided under this Act, impose upon such person a penalty as it may
deem fit which shall not exceed ten per cent. of the income for each year of
the continuance of such agreement.
Explanation.- For the purposes of this section,--
(a)
"company"
means a body corporate and includes a firm or other association of individuals;
(b)
"director", in
relation to a firm, means a partner in the firm;
(c)
"income", in
relation to a person, shall be determined in such manner as may be specified by
regulations.]
Section 48A - [Settlement
(1)
Any enterprise, against whom any inquiry has been initiated under
sub-section (1) of section 26 for contravention of sub-section (4) of section 3
or section 4, may, for settlement of the proceeding initiated for the alleged
contraventions, submit an application in writing to the Commission in such form
and upon payment of such fee as may be specified by regulations.
(2)
An application under sub-section (1) may be submitted at any time
after the receipt of the report of the Director General under sub-section (4)
of section 26 but prior to such time before the passing of an order under
section 27 or section 28 as may be specified by regulations.
(3)
The Commission may, after taking into consideration the nature,
gravity and impact of the contraventions, agree to the proposal for settlement,
on payment of such amount by the applicant or on such other terms and manner of
implementation of settlement and monitoring as may be specified by regulations.
(4)
While considering the proposal for settlement, the Commission
shall provide an opportunity to the party concerned, the Director General, or
any other party to submit their objections and suggestions, if any.
(5)
If the Commission is of the opinion that the settlement offered
under sub-section (1) is not appropriate in the circumstances or if the
Commission and the party concerned do not reach an agreement on the terms of
the settlement within such time as may be specified by regulations, it shall,
by order, reject the settlement application and proceed with its inquiry under
section 26.
(6)
The procedure for conducting the settlement proceedings under this
section shall be such as may be specified by regulations.
(7)
No appeal shall lie under section 53B against any order passed by
the Commission under this section.
(8)
All settlement amounts, realised under this Act shall be credited
to the Consolidated Fund of India.]
Section 48B - [Commitment
(1)
Any enterprise, against whom any inquiry has been initiated under
sub-section (1) of section 26 for contravention of sub-section (4) of section 3
or section 4, as the case may be, may submit an application in writing to the
Commission, in such form and on payment of such fee as may be specified by
regulations, offering commitments in respect of the alleged contraventions
stated in the Commission's order under sub-section (1) of section 26.
(2)
An offer for commitments under sub-section (1) may be submitted at
any time after an order under sub-section (1) of section 26 has been passed by
the Commission but within such time prior to the receipt by the party of the report
of the Director General under sub-section (4) of section 26 as may be specified
by regulations.
(3)
The Commission may, after taking into consideration the nature,
gravity and impact of the alleged contraventions and effectiveness of the
proposed commitments, accept the commitments offered on such terms and the
manner of implementation and monitoring as may be specified by regulations.
(4)
While considering the proposal for commitment, the Commission
shall provide an opportunity to the party concerned, the Director General, or
any other party to submit their objections and suggestions, if any.
(5)
If the Commission is of the opinion that the commitment offered
under sub-section (1) is not appropriate in the circumstances or if the
Commission and the party concerned do not reach an agreement on the terms of
the commitment, it shall pass an order rejecting the commitment application and
proceed with its inquiry under section 26 of the Act.
(6)
The procedure for commitments offered under this section shall be
such as may be specified by regulations.
(7)
No appeal shall lie under section 53B against any order passed by
the Commission under this section.]
Section 48C – [Revocation of the settlement or commitment order and penalty
If an applicant fails to comply with the order passed under
section 48A or section 48B or it comes to the notice of the Commission that the
applicant has not made full and true disclosure or there has been a material
change in the facts, the order passed under section 48A or section 48B, as the
case may be, shall stand revoked and withdrawn and such enterprise shall be
liable to pay legal costs incurred by the Commission which may extend to rupees
one crore and the Commission may restore or initiate the inquiry in respect of
which the order under section 48A or section 48B was passed.]
Section 49 - Competition advocacy
[(1) The Central
Government may, in formulating a policy on competition (including review of
laws related to competition) or on any other matter, and a State Government
may, in formulating a policy on competition or on any other matter, as the case
may be, make a reference to the Commission for its opinion on possible effect
of such policy on competition and on the receipt of such a reference, the
Commission shall, within sixty days of making such reference, give its opinion
to the Central Government, or the State Government, as the case may be, which
may thereafter take further action as it deems fit.]
(2) The opinion given by the Commission under
sub-section(1) shall not be binding upon the Central Government
[or the State Government, as the case may be,] in formulating such policy.
(3) The Commission shall take suitable
measures, [*
* *], for the promotion of competition advocacy [or
culture], creating awareness and imparting training about competition issues.
Section 50 - Grants by Central Government
The Central Government may, after due
appropriation made by Parliament by law in this behalf, make to the Commission
grants of such sums of money as the Government may think fit for being utilised
for the purposes of this Act.]
Section 51 - Constitution of Fund
(1)
There shall be constituted a fund to be called
the "Competition Fund" and there shall be credited thereto
(a)
all Government grants received by the
Commission:
(b)
[* * *]
(c)
the fees received under this Act:
(d)
the interest accrued on the amounts referred to
in [clauses
(a) and (c)].
[(e) all sums received by the Commission from such other sources
as may be decided upon by the Government.]
(2)
The Fund shall be applied for meeting
(a)
the salaries and allowances payable to the
Chairperson and other Members and the administrative expenses including the
salaries, allowances and pension payable to the Director General, Additional,
Joint, Deputy or Assistant Directors General, the Registrar and officers and
other employees of the Commission:
(b)
the other expenses of the Commission in
connection with the discharge of its functions and for the purposes of this
Act.
(3)
The Fund shall be administered by a committee of
such Members of the Commission as may be determined by the Chairperson.
(4)
The committee appointed under sub-section (3)
shall spend monies out of the Fund for carrying out the objects for which the
Fund has been constituted.]
Section 52 - Accounts and audit
(1)
The Commission shall maintain proper accounts
and other relevant records and prepare an annual statement of accounts in such
form as may be prescribed by the Central Government in consultation with the
Comptroller and Auditor-General of India.
(2)
The accounts of the Commission shall be audited
by the Comptroller and Auditor-General of India at such intervals as may be
specified by him and any expenditure incurred in connection with such audit
shall be payable by the Commission to the Comptroller and Auditor-General of
India.
Explanation. For the removal of doubts, it is
hereby declared that the orders of the Commission, being matters appealable to
the
[Appellate Tribunal or the Supreme Court], shall not be subject to audit under
this section.
(3)
The Comptroller and Auditor-General of India and
any other person appointed by him in connection with the audit of the accounts
of the Commission shall have the same rights, privileges and authority in
connection with such audit as the Comptroller and Auditor-General of India
generally has, in connection with the audit of the Government accounts and, in
particular, shall have the right to demand the production of books, accounts,
connected vouchers and other documents and papers and to inspect any of the
offices of the Commission.
(4)
The accounts of the Commission as certified by
the Comptroller and Auditor-General of India or any other person appointed by
him in this behalf together with the audit report thereon shall be forwarded
annually to the Central Government and that Government shall cause the same to
be laid before each House of Parliament.]
Section 53 - Furnishing of returns, etc., to Central Government
(1)
The Commission shall furnish to the Central
Government at such time and in such form and manner as may be prescribed or as
the Central Government may direct, such returns and statements and such
particulars in regard to any proposed or existing measures for the promotion of
competition advocacy, creating awareness and imparting training about
competition issues, as the Central Government may, from time to time, require.
(2)
The Commission shall prepare once in every year
in such form and at such time as may be prescribed, an annual report giving a
true and full account of its activities during the previous year and copies of
the report shall be forwarded to the Central Government.
(3)
A copy of the report received under sub-section
(2) shall be laid, as soon as may be after it is received, before each House of
Parliament.]
CHAPTER VIIIA [APPELLATE
TRIBUNAL]
Section 53A - Appellate Tribunal
The National Company Law Appellate Tribunal
constituted under section 410 of the Companies Act, 2013 (18 of 2013)
shall, on and from the commencement of Part XIV of Chapter VI of the Finance
Act, 2017, be the Appellate Tribunal for the purposes of this Act and the said
Appellate Tribunal shall
(a)
hear and dispose of appeals against any direction issued or
decision made or order passed by the Commission under [sub-section
(6) of section 6, sub-sections (2), (2A), (6) and (9) 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; and
(b)
adjudicate on claim for compensation that may
arise from the findings of the Commission or the orders of the Appellate
Tribunal in an appeal against any finding of the Commission or under section
42A or under sub-section (2) of section 53Q of this Act, and pass orders for
the recovery of compensation under section 53N of this Act.]
Section 53B - Appeal to Appellate Tribunal
[(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.
[Provided further that no appeal by a person,
who is required to pay any amount in terms of an order of the Commission, shall
be entertained by the Appellate Tribunal unless the appellant has deposited
twenty-five per cent. of that amount in the manner as directed by the Appellate
Tribunal.]
(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 endeavour shall be made by it to dispose of the appeal within six
months from the date of receipt of the appeal.]
Section 53C - [Omitted]
[***]
Section 53D - [Omitted]
[***]
Section 53E - [Omitted]
[***]
Section 53F - [Omitted]
[***]
Section 53G - [Omitted]
[***]
Section 53H - [Omitted]
[***]
Section 53-I - [Omitted]
[***]
Section 53J - [Omitted]
[***]
Section 53K - [Omitted]
[***]
Section 53L - [Omitted]
[***]
Section 53M - [Omitted]
[***]
Section 53N - Awarding compensation
(1)
Without prejudice to any other provisions
contained in this Act, the Central Government or a State Government or a local
authority or any enterprise or any person may make an application to the
Appellate Tribunal to adjudicate on claim for compensation that may arise from
the findings of the Commission or the orders of the Appellate Tribunal in an
appeal against any finding of the Commission or under section 42A or [under sub-section (2)
of section 53Q or the orders of the Supreme Court in an appeal against the
findings of the Appellate Tribunal under section 53T or an order for settlement
passed under section 48A, and to pass an order for the recovery of compensation
from any enterprise for any loss or damage shown to have been suffered, by the
Central Government or a State Government or a local authority or any enterprise
or any person as a result of any contravention of the provisions of Chapter II,
having been committed by enterprise or as a result of order of settlement
passed by the Commission.]
(2)
Every application made under sub-section (1)
shall be accompanied by the findings of the Commission, if any, and also be
accompanied with such fees as may be prescribed.
(3)
The Appellate Tribunal may, after an inquiry
made into the allegations mentioned in the application made under sub-section
(1), pass an order directing the enterprise to make payment to the applicant,
of the amount determined by it as realisable from the enterprise as
compensation for the loss or damage caused to the applicant as a result of any contravention
of the provisions of Chapter II having been committed by such enterprise:
Provided that the Appellate Tribunal may obtain the
recommendations of the Commission before passing an order of compensation.
(4)
Where any loss or damage referred to in sub-section
(1) is caused to numerous persons having the same interest, one or more of such
persons may, with the permission of the Appellate Tribunal, make an application
under that sub-section for and on behalf of, or for the benefit of, the persons
so interested, and thereupon, the provisions of rule 8 of Order 1 of the First
Schedule to the Code of Civil Procedure, 1908(5 of 1908), shall apply subject
to the modification that every reference therein to a suit or decree shall be
construed as a reference to the application before the Appellate Tribunal and
the order of the Appellate Tribunal thereon.
Explanation. For the removal of
doubts, it is hereby declared that
(a)
an application may be made for compensation
before the Appellate Tribunal only after either the Commission or the Appellate
Tribunal on appeal under clause (a) of sub-section (1) of section 53A of the
Act, has determined in a proceeding before it that violation of the provisions
of the Act has taken place, or if provisions of section 42A or sub-section (2)
of section 53Q of the Act are attracted.
(b)
enquiry to be conducted under sub-section (3)
shall be for the purpose of determining the eligibility and quantum of
compensation due to a person applying for the same, and not for examining
afresh the findings of the Commission or the Appellate Tribunal [or the Supreme Court,] on whether any
violation of the Act has taken place.]
Section 53O - Procedure and powers of Appellate Tribunal
(1)
The Appellate Tribunal shall not be bound by the
procedure laid down in the Code of Civil Procedure, 1908(5 of 1908), but shall
be guided by the principles of natural justice and, subject to the other
provisions of this Act and of any rules made by the Central Government, the
Appellate Tribunal shall have power to regulate its own procedure including the
places at which they shall have their sittings.
(2)
The Appellate Tribunal shall have, for the
purposes of discharging its functions under this Act, the same powers as are
vested in a civil court under the Code of Civil Procedure, 1908(5 of 1908)
while trying a suit in respect of the following matters, namely:
(a)
summoning and enforcing the attendance of any
person and examining him on oath:
(b)
requiring the discovery and production of
documents:
(c)
receiving evidence on affidavits:
(d)
subject to the provisions of sections
123 and 124 of the Indian Evidence Act, 1872(1 of 1872),
requisitioning any public record or document or copy of such record or document
from any office:
(e)
issuing commissions for the examination of
witnesses or documents:
(f)
reviewing its decisions:
(g)
dismissing a representation for default or
deciding it ex parte:
(h)
setting aside any order of dismissal of any
representation for default or any order passed by it ex parte:
(i)
any other matter which may be prescribed.
(3)
Every proceeding before the Appellate Tribunal
shall be deemed to be judicial proceedings within the meaning of sections
193 and 228, and for the purposes of section 195, of the Indian
Penal Code(45 of 1860) and the Appellate Tribunal shall be deemed to be a civil
court for the purposes of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973.]
Section 53P - Execution of orders of Appellate Tribunal
(1)
Every order made by the Appellate Tribunal shall
be enforced by it in the same manner as if it were a decree made by a court in
a suit pending therein, and it shall be lawful for the Appellate Tribunal to
send, in case of its inability to execute such order, to the court within the
local limits of whose jurisdiction,
(a)
in the case of an order against a company, the registered
office of the company is situated: or
(b)
in the case of an order against any other
person, place where the person concerned voluntarily resides or carries on
business or personally works for gain, is situated.
(2)
Notwithstanding anything contained in sub-section
(1), the Appellate Tribunal may transmit any order made by it to a civil court
having local jurisdiction and such civil court shall execute the order as if it
were a decree made by that court.]
Section 53Q - Contravention of orders of Appellate Tribunal
(1)
[Without prejudice to the provisions of this Act, if any person
contravenes, without
any reasonable ground, any order of the Appellate Tribunal, he shall be liable
for contempt proceeding under section 53U.]
(2)
Without prejudice to the provisions of this Act,
any person may make an application to the Appellate Tribunal for an order for
the recovery of compensation from any enterprise for any loss or damage shown
to have been suffered, by such person as a result of the said enterprise
contravening, without any reasonable ground, any order of the Appellate
Tribunal or delaying in carrying out such orders of the Appellate Tribunal.]
Section 53R - [Omitted]
[***]
Section 53S - Right to legal representation
(1)
A person preferring an appeal to the Appellate
Tribunal may either appear in person or authorise one or more chartered
accountants or company secretaries or cost accountants or legal practitioners
or any of its officers to present his or its case before the Appellate
Tribunal.
(2)
The Central Government or a State Government or
a local authority or any enterprise preferring an appeal to the Appellate
Tribunal may authorise one or more chartered accountants or company secretaries
or cost accountants or legal practitioners or any of its officers to act as presenting
officers and every person so authorised may present the case with respect to
any appeal before the Appellate Tribunal.
(3)
The Commission may authorise one or more
chartered accountants or company secretaries or cost accountants or legal
practitioners or any of its officers to act as presenting officers and every
person so authorised may present the case with respect to any appeal before the
Appellate Tribunal.
Explanation. The expressions
"chartered accountant" or "company secretary" or "cost
accountant" or "legal practitioner" shall have the meanings
respectively assigned to them in the Explanation to section 35.]
Section 53T - Appeal to Supreme Court
[The Central Government or
any State Government or the Commission or any statutory authority or any local
authority or any enterprise or any person aggrieved by any decision or order of
the Appellate Tribunal may file an appeal to the Supreme Court within sixty
days from the date of communication of the decision or order of the Appellate
Tribunal to them:
Provided that the Supreme
Court may, if it is satisfied that the applicant was prevented by sufficient
cause from filing the appeal within the said period, allow it to be filed after
the expiry of the said period of sixty days.]
Section 53U - Power to Punish for contempt
[The Appellate Tribunal shall
have, and exercise, the same jurisdiction, powers and authority in respect of
contempt of itself as a High Court has and may exercise and, for this purpose,
the provisions of the Contempt of Courts Act, 1971(70 of 1971) shall have
effect subject to modifications that,
(a)
the reference therein to a
High Court shall be construed as including a reference to the Appellate
Tribunal:
(b)
the references to the
Advocate-General in section 15 of the said Act shall be construed as a
reference to such Law Officer as the Central Government may, by notification,
specify in this behalf.]
Section 54 - Power to exempt
The Central Government may, by
notification, exempt from the application of this Act, or any provision
thereof, and for such period as it may specify in such notification
(a)
any class of enterprises if such exemption is
necessary in the interest of security of the State or public interest:
(b)
any practice or agreement arising out of and in
accordance with any obligation assumed by India under any treaty, agreement or
convention with any other country or countries:
(c)
any enterprise which performs a sovereign
function on behalf of the Central Government or a State Government:
Provided that in case
an enterprise is engaged in any activity including the activity relatable to
the sovereign functions of the Government, the Central Government may grant
exemption only in respect of activity relatable to the sovereign functions.]]
Section 55 - Power of Central Government to issue directions
(1)
Without prejudice to the foregoing provisions of
this Act, the Commission shall, in exercise of its powers or the performance of
its functions under this Act, be bound by such directions on questions of
policy, other than those relating to technical and administrative matters, as
the Central Government may give in writing to it from time to time:
Provided that the
Commission shall, as far as practicable, be given an opportunity to express its
views before any direction is given under this sub-section.
(2)
The decision of the Central Government whether a
question is one of policy or not shall be final.]]
Section 56 - Power of Central Government to supersede Commission
(1)
If at anytime the Central Government is of the
opinion
(a)
that on account of circumstances beyond the
control of the Commission, it is unable to discharge the functions or perform
the duties imposed on it by or under the provisions of this Act: or
(b)
that the Commission has persistently made
default in complying with any direction given by the Central Government under
this Act or in the discharge of the functions or performance of the duties
imposed on it by or under the provisions of this Act and as a result of such
default the financial position of the Commission or the administration of the
Commission has suffered: or
(c)
that circumstances exist which render it
necessary in the public interest so to do, the Central Government may, by
notification and for reasons to be specified therein, supersede the Commission
for such period, not exceeding six months, as may be specified in the
notification:
Provided that before issuing any such
notification, the Central Government shall give a reasonable opportunity to the
Commission to make representations against the proposed super session and shall
consider representations, if any, of the Commission.
(2)
Upon the publication of a notification under
sub-section (1) superseding the Commission,
(a)
the Chairperson and other Members shall, as from
the date of super session, vacate their offices as such:
(b)
all the powers, functions and duties which may,
by or under the provisions of this Act, be exercised or discharged by or on
behalf of the Commission shall, until the Commission is reconstituted under
sub-section (3), be exercised and discharged by the Central Government or such
authority as the Central Government may specify in this behalf:
(c)
all properties owned or controlled by the
Commission shall, until the Commission is reconstituted under sub-section (3),
vest in the Central Government.
(3)
On or before the expiration of the period of
super session specified in the notification issued under sub-section (1), the
Central Government shall reconstitute the Commission by a fresh appointment of
its Chairperson and other Members and in such case any person who had vacated
his office under clause (a) of sub-section(2) shall not be deemed to be
disqualified for re-appointment.
(4)
The Central Government shall cause a
notification issued under sub-section (1) and a full report of any action taken
under this section and the circumstances leading to such action to be laid
before each House of Parliament at the earliest.]]
Section 57 - Restriction on disclosure of information
No information relating to any
enterprise, being an information which has been obtained by or on behalf of [the Commission or the Appellate
Tribunal] for the purposes of this Act, shall, without the
previous permission in writing of the enterprise, be disclosed otherwise than
in compliance with or for the purposes of this Act or any other law for the
time being in force.
Section 58 - Chairperson, Members, Director General, Secretary, officers and other employees etc., to be public servants
The Chairperson and other Members
and the Director General, Additional, Joint, Deputy or Assistant Directors General
and Secretary and officers and other employees of the Commission and the
Chairperson, Members, officers and other employees of the Appellate Tribunal
shall be deemed, while acting or purporting to act in pursuance of any of the
provisions of this Act, to be public servants within the meaning
of section 21 of the Indian Penal Code.]
Section 59 - Protection of action taken in good faith
No suit, prosecution or other
legal proceedings shall lie against the Central Government or Commission or any
officer of the Central Government or the Chairperson or any Member or the
Director-General, Additional, Joint, Deputy or Assistant Directors General
or [the
Secretary or officers or other employees of the Commission or the Chairperson,
Members, officers and other employees of the Appellate Tribunal] for anything
which is in good faith done or intended to be done under this Act or the rules
or regulations made there under.]
Section 59A - [Compounding of certain offences
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), any offence punishable under this Act, not being
an offence punishable with imprisonment only or imprisonment and also with
fine, may either before or after the institution of any proceeding, be
compounded by the Appellate Tribunal or a court before which such proceeding is
pending.]
Section 60 - Act to have overriding effect
The provisions of this Act shall
have effect notwithstanding anything inconsistent therewith contained in any
other law for the time being in force.]
Section 61 - Exclusion of jurisdiction of civil courts
No civil court shall have
jurisdiction to entertain any suit or proceeding in respect of any matter which
the [Commission or the Appellate Tribunal] is
empowered by or under this Act to determine and no injunction shall be granted
by any court or other authority in respect of any action taken or to be taken
in pursuance of any power conferred by or under this Act.
Section 62 - Application of other laws not barred
The provisions of this Act shall
be in addition to, and not in derogation of, the provisions of any other law
for the time being in force.]
Section 63 - Power to make rules
[(1) The Central
Government may, by notification, make rules to carry out the provisions of this
Act.
(2) In particular, and without prejudice to the
generality of the foregoing power, such rules may provide for all or any of the
following matters, namely:
[(a) the value of the assets or turnover of the
enterprise acquired, taken control of, merged or amalgamated in India under
clause (e) of section 5;
(ab) the percentage of voting rights higher than
twenty-six per cent. under sub-clause (i) of clause (b) of the Explanation to
section 5;
(ac) the criteria of combinations under
sub-section (4) of section 6;
(ad) the criteria under sub-section (7) of
section 6;]
[[(ae)]
the term of the Selection Committee and the manner of selection of panel of
names under sub-section (2) of section 9;]
[(b) the form and
manner in which and the authority before whom the oath of office and of secrecy
shall be made and subscribed to under sub-section (3) of section10:
(c) [* * *]
[(d) the salary and
the other terms and conditions of service including travelling expenses, house
rent allowance and conveyance facilities, sumptuary allowance and medical
facilities to be provided to the Chairperson and other Members under
sub-section (1) of section 14:
[(da) the number of
Additional, Joint, Deputy or Assistant Directors General or such officers or
other employees in the office of Director General and the manner in which such
Additional, Joint, Deputy or Assistant Directors General or such officers or
other employees may be appointed under subsection (1A) of section 16:]
(e) the salary,
allowances and other terms and conditions of service of the Director General,
Additional, Joint, Deputy or Assistant Directors General or
[such officers or other employees] under sub-section (5) of section 16:
(f) the
qualifications for appointment of the Director General, Additional, Joint, Deputy
or Assistant Directors General or
[such officers or other employees] under sub-section (4) of section 16:
(g) the salaries and
allowances and other terms and conditions of service of the
[Secretary] and officers and other employees payable, and the number of such
officers and employees under sub-section (2) of section 17:
(h) [* * *]
(i) [* * *]
(j) [* * *]
(k) the form in which
the annual statement of accounts shall be prepared under sub-section (1) of
section 52:
(l) the time within
which and the form and manner in which the Commission may furnish returns,
statements and such particulars as the Central Government may require under
sub-section (1) of section 53:
(m) the form in which
and the time within which the annual report shall be prepared under sub-section
(2) of section 53:
[(ma) the form in
which an appeal may be filed before the Appellate Tribunal under sub-section
(2) of section 53B and the fees payable in respect of such appeal:
[***]
(me) the fee which
shall be accompanied with every application made under sub-section (2) of
section 53N:
(mf) the other
matters under clause (i) of sub-section (2) of section 53-O in respect of which
the Appellate Tribunal shall have powers under the Code of Civil Procedure,
1908 (5 of 1908)while trying a suit:]
[(mg) the form of the publication of guidelines
under sub-section (5) of section 64B;]
[(n) the manner in
which the monies transferred to the Competition Commission of India or the
Appellate Tribunal shall be dealt with by the Commission or the Appellate
Tribunal, as the case may be, under the fourth proviso to sub-section (2) of
section 66:]
(o) any other matter
which is to be, or may be, prescribed, or in respect of which provision is to
be, or may be, made by rules.
(3) Every
notification issued under sub-section (5) of section 20 and section 54 and
every rule made under this Act by the Central Government shall be laid, as soon
as may be after it is made, before each House of Parliament, while it is in
session, for a total period of thirty days which may be comprised in one
session, or in two or more successive sessions, and if, before the expiry of
the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the notification or
rule, or both Houses agree that the notification should not be issued or rule
should not be made, the notification or rule shall thereafter have effect only
in such modified form or be of no effect, as the case may be: so, however, that
any such modification or annulment shall be without prejudice to the validity
of anything previously done under that notification or rule, as the case maybe.
Section 64 - Power to make regulations
(1) The Commission may,
by notification, make regulations consistent with this Act and the rules made
there under to carry out the purposes of this Act.
(2) In particular, and
without prejudice to the generality of the foregoing provisions, such
regulations may provide for all or any of the following matters, namely:
(a) the cost of
production to be determined under clause (b) of the Explanation to section 4:
(b) the form of notice as
may be specified and the fee which may be determined under sub-section (2) of
section 6:
[(c) the manner of determination of substantial
business operations in India under clause (d) of section 5;]
[(d) the procedures
to be followed for engaging the experts and professionals under sub-section (3)
of section 17:
(e) the fee which may be determined under clause
(a) of sub-section (1) of section 19:
(f) the rules of procedure in regard to the
transaction of business at the meetings of the Commission under sub-section (1)
of section 22:
(g) the manner in which penalty shall be
recovered under sub-section (1) of section 39:
(h) any other matter in respect of which
provision is to be, or may be, made by regulations.]
(3) Every regulation made
under this Act shall be laid, as soon as may be after it is made, before each
House of Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more successive sessions,
and if, before the expiry of the session immediately following the session or
the successive sessions aforesaid, both Houses agree in making any modification
in the regulation, or both Houses agree that the regulation should not be made,
the regulation shall thereafter have effect only in such modified form or be of
no effect, as the case may be: so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously
done under that regulation.
Section 64A - [Process of issuing regulations
The Commission shall ensure transparency while making regulations
under section 64, by--
(a)
publishing draft
regulations along with such other details as may be specified on its website
and inviting public comments for a specified period prior to issuing
regulations;
(b)
publishing a general
statement of its response to the public comments, not later than the date of
notification of the regulations;
(c)
periodically reviewing
such regulations:
Provided that if the Commission is of the opinion that certain
regulations are required to be made or existing regulations are required to be
amended urgently in public interest or the subject matter of the regulation
relates solely to the internal functioning of the Commission, it may make
regulations or amend the existing regulations, as the case may be, without
following the provisions stated in this section recording the reason, for doing
so.]
Section 64B - [Commission to issue guidelines
(1)
The Commission may
publish guidelines on the provisions of this Act or the rules and regulations
made thereunder either on a request made by a person or on its own motion.
(2)
Guidelines issued under
sub-section (1) shall not be construed as determination of any question of fact
or law by the Commission, its Members or officers and shall not be binding on
the Commission, its Members or officers.
(3)
Without prejudice to
anything contained in sub-section (1), the Commission shall publish guidelines
as to the appropriate amount of any penalty for any contravention of provision
of this Act.
(4)
While imposing penalty
under clause (b) of section 27 or under section 43A or section 48 for any
contravention of provision of this Act, the Commission shall consider the
guidelines under sub-section (3) and provide reasons in case of any divergence
from such guidelines.
(5)
The guidelines under
sub-sections (1) and (3) shall be published in such form as may be prescribed.]
Section 65 - Power to remove difficulties
(1)
If any difficulty
arises in giving effect to the provisions of this Act, the Central Government
may, by order published in the Official Gazette, make such provisions, not
inconsistent with the provisions of this Act as may appear to it to be
necessary for removing the difficulty:
Provided that no such
order shall be made under this section after the expiry of a period of two
years from the commencement of this Act.
(2)
Every order made
under this section shall be laid, as soon as may be after it is made, before
each House of Parliament.]
Section 66 - Repeal and saving
[(1) The Monopolies and Restrictive Trade Practices
Act, 1969 (54 of 1969)is hereby repealed and the Monopolies and Restrictive
Trade Practices Commission established under sub-section (1) of section
5 of the said Act (hereafter referred to as the repealed Act) shall stand
dissolved:
[***]
(1A) The repeal of the Monopolies and Restrictive
Trade Practices Act, 1969(54 of 1969) shall, however, not affect,
(a)
the previous operation
of the Act so repealed or anything duly done or suffered there under: or
(b)
any right, privilege,
obligation or liability acquired, accrued or incurred under the Act so
repealed: or
(c)
any penalty,
confiscation or punishment incurred in respect of any contravention under the
Act so repealed: or
(d)
any proceeding or
remedy in respect of any such right, privilege, obligation, liability, penalty,
confiscation or punishment as aforesaid, and any such proceeding or remedy may
be instituted, continued or enforced, and any such penalty, confiscation or
punishment may be imposed or made as if that Act had not been repealed.]
(2) On the
dissolution of the Monopolies and Restrictive Trade Practices Commission, the
person appointed as the Chairman of the Monopolies and Restrictive Trade
Practices Commission and every other, person appointed as Member and Director
General of Investigation and Registration, Additional, Joint, Deputy, or
Assistant Directors General of Investigation and Registration and any officer and
other employee of that Commission and holding office as such immediately before
such dissolution shall vacate their respective offices and such Chairman and
other Members shall be entitled to claim compensation not entitled to claim
compensation not exceeding three months' pay and allowances for the premature
termination of term of their office or of any contract of service:
Provided
that the Director General of Investigation and Registration, Additional, Joint,
Deputy or Assistant Directors General of Investigation and Registration or any
officer or other employee who has been, immediately before the dissolution of
the Monopolies and Restrictive Trade Practices Commission appointed on
deputation basis to the Monopolies and Restrictive Trade Practices Commission,
shall, on such dissolution, stand reverted to his parent cadre, Ministry or
Department, as the case may be:
[Provided further that the Director- General of
Investigation and Registration, Additional, Joint, Deputy or Assistant
Directors- General of Investigation and Registration or any officer or other
employee who has been, immediately before the dissolution of the Monopolies and
Restrictive Trade Practices Commission employed on regular basis by the
Monopolies and Restrictive Trade Practices Commission, shall become, on and
from such dissolution, the officer and employee, respectively, of the
Competition Commission of India or the Appellate Tribunal, in such manner as
may be specified by the Central Government, with the same rights and privileges
as to pension, gratuity and other like matters as would have been admissible to
him if the rights in relation to such Monopolies and Restrictive Trade
Practices Commission had not been transferred to, and vested in, the
Competition Commission of India or the Appellate Tribunal, as the case may be,
and shall continue to do so unless and until his employment in the Competition
Commission of India or the Appellate Tribunal, as the case may be, is duly
terminated or until his remuneration, terms and conditions of employment are
duly altered by the Competition Commission of India or the Appellate Tribunal,
as the case may be:]
Provided
also that notwithstanding anything contained in the Industrial Disputes Act,
1947(14 of 1947), or in any other law for the time being in force, the transfer
of the services of any Director General of Investigation and Registration,
Additional, Joint, Deputy or Assistant Directors General of Investigation and
Registration or any officer or other employee, employed in the Monopolies and
Restrictive Trade Practices Commission, to [the
Competition Commission of India or the Appellate Tribunal, as the case may be]
shall not entitle such Director General of Investigation and Registration,
Additional, Joint, Deputy or Assistant Directors General of Investigation and
Registration or any officer or other employee any compensation under this Act
or any other law for the time being in force and no such claim shall be
entertained by any court, tribunal or other authority:
Provided
also that where the Monopolies and Restrictive Trade Practices Commission has
established a provident fund, superannuation, welfare or other fund for the
benefit of the Director General of Investigation and Registration, Additional,
Joint, Deputy or Assistant Directors General of Investigation and Registration
or the officers and other employees employed in the Monopolies and Restrictive
Trade Practices Commission, the monies relatable to the officers and other
employees whose services have been transferred by or under this Act to
[the Competition Commission of India or the Appellate Tribunal, as the case may
be, shall, out of the monies standing], on the dissolution of the Monopolies
and Restrictive Trade Practices Commission to the credit of such provident
fund, superannuation, welfare or other fund, stand transferred to, and vest
in, [the
Competition Commission of India or the Appellate Tribunal, as the case may be,
and such monies which stand so transferred shall be dealt with by the said
Commission or the Tribunal, as the case may be, in such manner as may be
prescribed].
[(3) All cases pertaining to monopolistic trade
practices or restrictive trade practices pending (including such cases, in
which any unfair trade practice has also been alleged), before the Monopolies
and Restrictive Trade Practices Commission shall,
[on the commencement of the Competition (Amendment) Act, 2009], stand
transferred to the Appellate Tribunal and shall be adjudicated by the Appellate
Tribunal in accordance with the provisions of the repealed Act as if that Act
had not been repealed.]
[Explanation.” For the removal of doubts, it is hereby
declared that all cases referred to in this sub-section, sub-section (4) and
sub-section (5) shall be deemed to include all applications made for the
losses or damages under section 12B of the Monopolies and
Restrictive Trade Practices Act, 1969 (54 of 1969) as it stood before its
repeal:]
(4) Subject to
the provisions of sub-section (3), all cases pertaining to unfair trade
practices other than those referred to in clause (x) of sub-section (1)
of section 36A of the Monopolies and Restrictive Trade Practices Act,
1969 (54 of1969) and pending before the Monopolies and Restrictive Trade
Practices Commission [immediately
before the commencement of the Competition (Amendment) Act, 2009, shall, on
such commencement], stand transferred to the National Commission constituted
under the Consumer Protection Act, 1986 (68 of 1986) and the National
Commission shall dispose of such cases as if they were cases filed under that
Act:
Provided
that the National Commission may, if it considers appropriate, transfer any
case transferred to it under this sub-section, to the concerned State
Commission established under section 9 of the Consumer Protection
Act, 1986 (68 of 1986)and that State Commission shall dispose of such case as
if it was filed under that Act.
[Provided further that all the cases relating to the
unfair trade practices pending, before the National Commission under this
sub-section, on or before the date on which the Competition (Amendment) Bill,
2009 receives the assent of the President, shall, on and from that date, stand
transferred to the Appellate Tribunal and be adjudicated by the Appellate
Tribunal in accordance with the provisions of the repealed Act as if that Act
had not been repealed.]
[(5) All cases pertaining to unfair trade practices
referred to in clause (x) of sub-section (1) of section 36Aof the
Monopolies and Restrictive Trade Practices Act, 1969(54 of 1969) and pending
before the Monopolies and Restrictive Trade Practices Commission shall, [on
the commencement of the Competition (Amendment) Act, 2009], stand transferred
to the Appellate Tribunal and the Appellate Tribunal shall dispose of such
cases as if they were cases filed under that Act.]
(6) All
investigations or proceedings, other than those relating to unfair trade
practices, pending before the Director General of Investigation and
Registration on or before the commencement of this Act shall, on such
commencement, stand transferred to the Competition Commission of India, and the
Competition Commission of India may conduct or order for conduct of such
investigation or proceedings in the manner as it deems fit.
(7) All
investigations or proceedings, relating to unfair trade practices, other than
those referred to in clause (x) of sub-section (1) of section 36A of
the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and
pending before the Director General of Investigation and Registration on or before
the commencement of this Act shall, on such commencement, stand transferred to
the National Commission constituted under the Consumer Protection Act, 1986 (68
of1986) and the National Commission may conduct or order for conduct of such
investigation or proceedings in the manner as it deems fit.
[Provided that all investigations or proceedings,
relating to unfair trade practices pending before the National Commission, on
or before the date on which the Competition (Amendment) Bill, 2009 receives the
assent of the President shall, on and from that date, stand transferred to the
Appellate Tribunal and the Appellate Tribunal may conduct or order for conduct
of such investigation or proceedings in the manner as it deems fit.]
(8) All
investigations or proceedings relating to unfair trade practices referred to in
clause (x) of sub-section (1) of section 36A of the Monopolies and
Restrictive Trade Practices Act, 1969 (54 of 1969), and pending before the
Director General of Investigation and Registration on or before the commencement
of this Act shall, on such commencement, stand transferred to the Competition
Commission of India and the Competition Commission of India may conduct or
order for conduct of such investigation in the manner as it deems fit.
(9) Save as
otherwise provided under sub-sections (3) to (8), all cases or proceedings
pending before the Monopolies and Restrictive Trade Practices Commission shall
abate.
(10) The mention of the particular matters referred to
in sub-sections (3) to (8) shall not be held to prejudice or affect the general
application of section 6 of the General Clauses Act, 1897 (10 of
1897) with regard to the effect of repeal.