2026 PLP 631 (CLD)

RAHEEL KAMRAN, J.

Through this petition in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter, the Constitution ) the petitioner has challenged vires of notices dated 27.10.2022 and 14.12.2022 issued by the Competition Commission of Pakistan (hereinafter, the CCP), whereby petitioner was required to provide information in relation to already pending inquiry under section 37(1) of the Competition Act, 2010 (hereafter, the Act, 2010 ). The prayer clause of the petition is reproduced hereunder for reference: In light of the above, it is most respectfully prayed that this Honorable Court may kindly: (i) Declare the Enquiry Proceedings initiated by the Respondent No.2 against the Petitioner as unlawful, illegal, unconstitutional, and not in accordance with the law settled by the honorable superior courts. (ii) Declare that the actions of Respondents Nos.2 and 3 (initiation of enquiry proceedings and issuance of notices for provision of information) as illegal, unlawful and unconstitutional. (iii) Declare that the Respondents Nos.2 and 3 exercised the discretion in an arbitrary and fanciful manner which has caused prejudiced to the Petitioner s constitutional rights. (iv) Declare the Impugned Notices issued by the Respondent No.3 have no nexus with the so-called subject matter of the Enquiry Proceedings and the same may kindly be struck down. Any other relief deemed fit and appropriate by this Honourable Court may also kindly be granted.

2. Petitioner company is an automobile manufacturer in Pakistan. The CCP initiated inquiry proceedings suo motu against three market players of automobile industry including the petitioner on 29.11.2018 under section 37(1) of the Act, 2010 with respect to the concerns regarding increase in prices of vehicles. Notices were issued to the petitioner requiring certain information, which were responded by the petitioner and in March, 2021 a detailed presentation regarding the operations and sales of the petitioner company was also given. However, the inquiry has not been concluded and the impugned notices have been issued.

3. Learned counsel for the petitioner submitted that the entire proceedings initiated by the CCP are coram non judice and without lawful authority. It is contended that the inquiry, having been initiated in 2018, has been pending for almost five years without conclusion, which amounts to harassment and is a violation of the petitioner s right to due process. It is further argued that the CCP has never formally communicated the grounds or prima facie reasons for the initiation of the suo motu inquiry, leaving the petitioner in the dark as to the precise allegations it must meet. Learned counsel maintained that the impugned notices are a testament to the CCP s arbitrary exercise of power, as they constitute a fishing and roving inquiry, demanding voluminous and irrelevant information that has no nexus with the purported subject matter of the inquiry.

4. Conversely, learned counsel for the respondent-CCP has vehemently opposed this petition, primarily on the ground of maintainability. It is argued that the petitioner, by its own conduct, is estopped from challenging the proceedings. Learned counsel explained that the petitioner received the first notice in 2018, replied to it and subsequently participated in the proceedings, even giving a detailed presentation in March 2021. Learned counsel emphasized that having accepted the jurisdiction of the CCP for four years, the petitioner cannot now be allowed to approbate and reprobate by challenging the very foundation of the inquiry. It is further argued that this petition is premature, as the impugned notices are not final orders but are merely procedural steps for information gathering, which is a power expressly conferred upon the CCP by Section 37 of the Act, 2010. On merits, it is submitted that the petitioner s plea of ignorance regarding the basis of the inquiry is factually incorrect. It has been explained that the notice dated 17.12.2018 clearly stated that the inquiry was initiated under Section 37(1) with respect to the concerns raised against increase(s) in the prices of vehicles by automobile manufacturers. Thus, the reason was communicated from day one. Learned Assistant Attorney General has adopted the arguments of the learned counsel for the CCP.

5. In rebuttal, learned counsel for the petitioner contended that mere compliance with earlier notices was done in good faith and does not create an estoppel against the petitioner from challenging a continuing illegality, especially when the new notices are overbroad and constitute a fresh cause of action.

6. I have heard the arguments advanced by the learned counsel for the parties and have perused the record with their able assistance.

7. The challenge in this petition primarily is to the legality of an inquiry initiated in 2018 and the subsequent notices issued in 2022 for procuring information. The petitioner has raised several grounds, including vagueness, lack of communicated reasons and arbitrary exercise of power. However, before delving into the merits of these grounds, the question of the petition s maintainability, in view of the petitioner s conduct, needs to be addressed. It is evident from the documents annexed with the petition that the inquiry was initiated in 2018. A notice dated 17.12.2018 was issued, to which the petitioner submitted a detailed reply dated 21.01.2019. The record further reflects that the petitioner continued to correspond with the CCP and, in March 2021, its representatives appeared and gave a detailed presentation. At no point during this four-year period from 2018 to 2022 did the petitioner challenge the CCP s authority, the basis of the inquiry, or the notices issued to it. Instead, the petitioner opted to comply, participate and submit to the jurisdiction of the CCP.

8. The law is well-settled that a party cannot be permitted to approbate and reprobate. By actively participating in the proceedings, furnishing information and making representations without any protest or reservation for a considerable period, the petitioner has, by its own conduct, acquiesced to the proceedings. The grounds of challenge now being agitated such as the inquiry s suo motu basis or the lack of communicated reasons were available to the petitioner when the very first notice was received in 2018. Having waived its right to challenge the proceedings at the contemporaneous stage, the petitioner is now barred by the principles of waiver, estoppel and acquiescence from turning around and assailing the inquiry s legitimacy. This petition is a clear afterthought, seemingly filed to stall the proceedings upon issuance of the impugned notices.

9. Even assuming arguendo that the petition is maintainable, the grounds of challenge raised by the petitioner are unfounded and contrary to the record. The CCP is a regulator that addresses anti-competitive practices. Section 36 of the Act, 2010 grants the CCP broad powers to call for any information it requires to conduct its inquiry. Sections 36 and 37 of the Act, 2010 are reproduced below for reference: -

36. Power to call for information relating to undertaking.-Notwithstanding anything contained in any other law for the time being in force, the Commission may, by general or special order, call upon an undertaking to furnish periodically or as and when required any information concerning the activities of the undertaking, including information relating to its organization, accounts, business, trade practices, management and connection with any other undertaking, which the Commission may consider necessary or useful for the purposes of this Act.

37. Enquiry and studies. (1) The Commission may, on its own, and shall upon a reference made to it by the Federal Government, conduct enquiries into any matter relevant to the purposes of this Act. (2) Where the Commission receives from an undertaking or a registered association of consumers a complaint in writing of such facts as appear to constitute a contravention of the provisions of Chapter II, it shall, unless it is of opinion that the application is frivolous or vexatious or based on insufficient facts, or is not substantiated by prima facie evidence, conduct an enquiry into the matter to which the complaint relates. (3) The Commission may outsource studies by hiring consultants on contract. (4). If upon the conclusion of an inquiry under subsection (1) or subsection (2), the Commission is of opinion that the findings are such that it is necessary in the public interest so to do, it shall initiate proceedings under section

30. Calling for information under section 36 is a regulatory power and is not considered a proceeding under Section

30. Section 37 grants the CCP the authority to conduct inquiries into matters relevant to the Act, either on its own initiative or upon a reference from the Federal Government. Subsection (2) of Section 37 specifies that the CCP may conduct an inquiry upon receipt of a complaint from an undertaking or a registered association of consumers. The petitioner has not controverted CCP s authority to initiate inquiry, rather primary contention of the petitioner is that the CCP has failed to inform it whether the action was suo motu or based on a complaint, and has not provided any justification for the inquiry. This assertion is demonstrably incorrect.

10. A bare perusal of the notice dated 17.12.2018, which the petitioner itself has placed on record, explicitly states:

The Competition Commission of Pakistan (the Commission ) has initiated an enquiry under section 37(1) of the Competition Act, 2010 with respect to the concerns raised against increase(s) in the price of vehicles by automobile manufacturers

This single sentence unequivocally clarifies: (i) the statutory provision Section 37(1), which empowers the CCP to initiate inquiries, including suo motu, and (ii) the precise reason for the inquiry i.e. concerns regarding price increases of vehicles. There is no requirement under the law that detailed reasons for initiating an inquiry should be conveyed, rather a gist of the reasons which led to the decision of initiating inquiry is required to be conveyed. Reliance is placed on the case of Competition Commission of Pakistan and others v. Dalda Foods Limited, Karachi (PLD 2023 SC 1991), wherein the Supreme Court of Pakistan held as under: - When perusing an order under section 37 of the Act, the CCP is not required to give a detailed reasoned explanation to the undertaking as to the enquiry, but should have deliberated on the issue so as to come to the conclusion that an enquiry is necessary, the gist of which reasoning should be communicated to the undertaking in writing. The internal working documents of the CCP need not be communicated in their entirety to the undertaking whilst at the same time its intent, along with gist of the reasoning, to conduct an enquiry must be communicated. The petitioner s claim of being unaware of the reasons for inquiry is, therefore, entirely misplaced. The summary of reasons or justification that the petitioner demands was, in fact, communicated to it at the very inception of the inquiry. The petitioner s persistence on this ground is, thus, untenable.

11. The challenge to the impugned notices of 2022, on the basis that they have no nexus with the subject matter, is equally without merit. The notices are merely in continuation of the pending inquiry initiated by the CCP. It is not for this Court, in the exercise of its constitutional jurisdiction under Article 199, to sit in appeal over the CCP s assessment of what information is relevant to its investigation. The CCP is the master of its own proceedings and unless mala fides are alleged and proven, this Court will not interfere in the investigative stage.

12. Additionally, the impugned notices are not a final order. They do not determine any of the petitioner s rights nor do they impose any penalty. They are simply notices for information. In essence, the enquiry conducted under Section 37 functions as a preliminary stage aimed at collecting information and evidence. If this process indicates a possible breach of Chapter II of the Act, 2010 the CCP may then take further action. However, conducting such an enquiry is not a mandatory prerequisite for proceeding against an undertaking. If the CCP is satisfied, based on the information already available, that a contravention of Chapter II has occurred, it may proceed directly without conducting an enquiry. In the Dalda Foods case supra, the Supreme Court explicated that the CCP being a regulator is tasked with and as such empowered to collect market information to understand market structure, therefore, providing such information to CCP by an undertaking is not considered an adverse action against the undertaking. The petitioner, if believes it is not involved in any anti-competitive practice, its remedy is not to rush to this Court, but to provide the requisite information to the CCP to substantiate its stance and bring the inquiry to a logical conclusion. If the petitioner does not possess some of the information demanded, it could have conveniently apprised the CCP of this fact. As discussed above, the impugned notices only sought certain information from the petitioner relating to an already pending inquiry. By no stretch of imagination the impugned notices can be considered as proceedings under section 30 of the Act, 2010 leading to penalty under section 38 ibid. At this stage, no adjudication has taken place against the petitioner nor has any view been formed by the CCP regarding contravention of the law. Therefore, there is no justiciable controversy that may call for interference by this Court.

13. For the foregoing reasons, this petition is found to be devoid of any merit and is accordingly dismissed.

14. Before parting with this order, it is observed that although the Act, 2010 does not prescribe any statutory timeframe for conclusion of an inquiry under Section 37, principle of fairness demands that such proceedings are not kept pending for an indefinite period and must be concluded within a reasonable time. What constitutes reasonable time depends upon the nature and complexity of the matter; however, prolonged pendency without conclusion gives rise to apprehensions of arbitrariness, uncertainty and administrative abuse. Vesting unregulated and open-ended discretion in a regulatory authority can inadvertently create fertile ground for exploitation and undermines the public confidence in a regulatory framework. While this Court refrains from interfering with the ongoing investigative process, it expects the respondent-CCP to ensure that the inquiry initiated in 2018 is brought to a logical conclusion expeditiously and within a reasonable period. The CCP shall make best endeavours to conclude the inquiry preferably within six months from the date of this judgment. UN/A-84/L Petition dismissed.