2022 PLP 1509 (CLD)

The instant appeal and the connected appeals are directed against the order, dated 13-08-2021, passed by the Competition Commission of Pakistan (the CCP/the respondent) in Show Cause Notices (SCNs) Nos. 56/2020 to 140/2020 issued by the CCP to the Pakistan Sugar Mills Association (the PSMA) and 84 Sugar Mills affiliated with the PSMA (the Sugar Mills). The CCP initiated an Enquiry on 19-12-2019, against the Sugar Mills, under section 37(1) of the Competition Act, 2010 (the Act), in order to analyze the "Possible anti -competitive activities in the Sugar Industry". An Enquiry Committee was constituted by the CCP in this respect. And based on the Report of the Enquiry Committee the afore-referred SCNs were issued to the Sugar Mills. On the basis of the SCNs and the Enquiry Report (the ER) and the defence put up by the Sugar Mills 6 Issues were framed to be determined in the matter. The Chairperson and one (1) Member of the CCP held against the Sugar Mills through their decision/order, dated 06.08.2021, designated as the, "First Opinion". However, the other two (2) Members through their decision/order, dated 12.08.2021, designated as the, "Second Opinion", partially accepted the Sugar Mills' defence, in that, in respect of Issues Nos. I, IV and V the SCNs and ER were set aside and the matter was remanded for a de novo inquiry, however, in respect of Issues Nos. II and III the SCNs and ER were set aside. As the decision was equally split between the Chairperson and one Member on the one hand and the two other Members on the other hand, therefore, the Chairperson proceeded to give a casting vote, in exercise of the power conferred upon the Chairperson through section 24(5) of the Act, in favour of the First Opinion, hence the First Opinion was declared to be the order of the CCP and thus the impugned order, dated 13.08.2021.

2. Feeling aggrieved almost all of the Sugar Mills have challenged the impugned order through the appeals in question. The said Sugar Mills shall hereinafter be referred to as the appellants.

3. The appellants have challenged the impugned order primarily on the ground, that under the Act and the law the Chairperson of the CCP does not have any power to exercise a casting vote in the matter in issue. Secondly, under section 14(1) of the Act the composition of the CCP is not to be less than 5 (five) and not more than 7 (seven) Members. At the relevant time the CCP had only 4 (four) Members including the Chairperson. It is contended that the entire proceedings before the CCP are, therefore, coram non judice, void ab initio and non est. It is further contended that the reliance of the CCP on the saving clause (re it's strength) in section 14(7) of the Act is misconceived inasmuch as no cogent reason has been given for the CCP being under strength or for that matter the existence of vacancies therein. It is further maintained that through the impugned order it has been erroneously held that the appellants have contravened the provisions of the various sections of the Act and in particular the provisions of sections 4(1), 4(2)(a) and 4(2)(c) of the Act.

4. The appellants, besides raising the above grounds, have also contended that the impugned order is bad in law. It has been passed against the facts and law of the case. It is without jurisdiction. It is, therefore, liable to be set aside.

5. Mr. Mamoon M. Chaudhary, Advocate, the learned Counsel for the PSMA and the appellants in Appeals/Diary Nos. 23 to 44 of 2021, besides raising the above grounds submits that at the time of passing of the impugned order (13.08.2021), the Tribunal was not functional due to the non-appointment of the learned Technical Members of the Tribunal. As a consequence, most of the appellants, in addition to filing the appeals against the impugned order, were constrained to file writ petitions and/or civil suits against the impugned order before the various learned High Courts including the learned Sindh High Court and the learned Lahore High Court. The said writ petitions/suits were entertained by the learned High Courts and by way of interim relief the operation of the impugned order was suspended. However, subsequently the Tribunal become functional in or about the month of December, 2021. Consequently, the CCP moved miscellaneous applications before the learned Sindh High Court as well as the learned Lahore High Court for vacation of the stay orders granted in favor of the appellants. The CCP also maintained that since the Tribunal has become functional the writ petitions/suits should be withdrawn by the appellants and they should instead pursue their appeals before the Tribunal.

6. Submits that the very question of the composition of the CCP at the relevant time and the CCP's Chairperson's competence to exercise the right of casting vote are substantial questions of law which have been raised by the appellants in their writ petitions/ suits. The said questions are under-consideration of the learned High Courts. The learned Sindh High Court has heard arguments on these questions and whether or not the appeals ought to proceed before the Tribunal during pendency of the proceedings before the learned Sindh High Court. And judgment has been reserved. Moreover, the learned Lahore High Court has also set down these questions for determination in the various writ petitions pending before it. Submits that till the final decision of the learned Sindh High Court and the learned Lahbre High Court in the matter the hearing of the appeals may be adjourned sine die.

7. Mr. Shehzad A. Elahi, Advocate, the learned Counsel for the appellants in Appeals/Diary Nos. 46 to 58 of 2021, has called into question the validity of the impugned order, inter alia, on the above-mentioned grounds. He further submits that since the question as to whether the appellants' writ petitions remain maintainable after the Tribunal has become functional and whether the Tribunal can determine the above-mentioned questions of law are pending adjudication before the learned Lahore High Court, the Tribunal should, therefore, await the decision of the learned Lahore High Court. If the Tribunal proceeds to hear the appeals the appellants case before the learned Lahore High Court is liable to be prejudiced. Moreover, there is an apprehension of passing of conflicting judgments.

8. The learned Counsel for the other appellants represented today adopt the arguments of Messrs Mamoon M. Chaudhry and Shehzad A. Elahi, Advocates.

9. The learned Law Officer of the CCP submits that the impugned order has been passed in accordance with the law and facts of the case. The appellants were found to be engaged in anti-competitive activities. Further submits that once the Tribunal became functional the CCP raised the issue of the maintainability of the appellants' writ petitions/suits before the learned High Courts by submitting that the Tribunal has jurisdiction in the matter. Further summits that the pendency of the writ petitions/suits before the learned High Courts in no way detracts from the power of the Tribunal to adjudicate upon the appeals.

10. The learned Counsel for the appellants whilst reiterating their arguments pray that till such time the learned High Courts decide the question of the maintainability of the writ petitions/suits and/or the legality of the impugned order the Tribunal may adjourn the appeals sine die.

11. We have considered the arguments of the learned Counsel for the appellants as also of the learned Law Officer of the CCP.

12. It is common ground between the appellants as well as the CCP that at the time (13.08.2021) of the passing of the impugned order the Tribunal was not functional due to the non-appointment of the learned Technical Members of the Tribunal. The learned Technical Members have since been appointed and the Tribunal became fully functional as of 02-12-2021.

13. We find that under section 42 of the Act the Tribunal is empowered to hear appeals against orders of the Commission (the CCP) passed by two (2) or more Members or by the Appellate Bench of the Commission (the CCP). In deciding such appeals, the Tribunal is empowered to decide all questions of law and facts raised before it including the question of the jurisdiction of the Chairperson of the CCP or the composition of the CCP.

14. There is no cavil about the proposition that in case an Administrative Court or Tribunal, in the instant case the Tribunal, is not available to a litigant for the reason that it is not functional then the litigant who has a remedy before such Administrative Court or Tribunal cannot be left in a vacuum for an indefinite period due to the non-establishment of such Administrative Court or Tribunal or in other words a litigant cannot be rendered remediless. In such circumstances, whilst acting upon the principle, "ubi jus ibi remedium", that is to say, where there is a right there is a remedy, and in the spirit of Articles 4 and 10A of the Constitution of the Islamic Republic Pakistan, 1973, a Constitutional petition under Article 199 of the Constitution is normally entertained by the High Court to provide relief to the litigant. However, once the Administrative Court or Tribunal becomes functional then under the relevant statue the remedy of the litigant ordinarily lies before such Administrative Court or Tribunal established under the statue, inter alia, for the reason that, although the jurisdiction of a High Court under Article 199 of the Constitution is open ended, yet it is subject to certain limitations mentioned in the said Article, one of which being the availability of other adequate remedy to the litigant. In the instant case the learned Counsel for the appellants have been unable to establish that the alternative remedy of appeal before the Tribunal is neither efficacious nor speedy. Reliance in this regard is placed on the judgment reported as Sarfraz Saleem v. Federation of the Pakistan and others (PLD 2014 SC 232).

15. It is further settled law that if a Court does not have jurisdiction and it wrongly exercises such jurisdiction then an appeal lies from the decision in the same manner as an appeal lies from a decision with jurisdiction. In the instant case the appellants have maintained that the impugned order is illegal as it is without jurisdiction, therefore, the Tribunal cannot look into this question. The said argument is not tenable in view of the above principle of the law. Reference is made to the judgments reported as Muhammad Ashfaq v. The State (PLD 1973 SC 368); Abrar Hassan v. Government of Pakistan and others (PLD 1976 SC 315) and Pir Sabri Shah v. Shah Muhammad Khan and another (PLD 1995 SC 66).

16. It may be pertinent to point out here that whilst entertaining the appellants' writ petitions/suits the learned High Courts have granted interim relief to the appellants by way of suspending the impugned order. However, the learned High Courts have not stayed the proceedings in the instant appeals. Indeed, the learned Counsel for the appellants have been unable to show us any such orders.

17. It is settled law that mere filing of an appeal/writ petition before the High Court or a higher forum does not automatically operate as a stay of proceedings unless a specific order has been passed in this respect. Reliance in this regard is placed on the judgments reported as Shah Wali v. Ghulam Din alias Gaman and another (PLD 1966 SC 983); H.M. Fazal Zaheer v. Kh. Abdul Harmed and others (1983 SCMR 906) and Muhammad Iqbal v. Additional District Judge, Rahimyar Khan and others (PLD 2011 Lahore 497).

18. On this view of the matter and the fact that the appeals are pending since long due to the non-functioning of the Tribunal we are inclined to proceed with the appeals. The request of the learned Counsel for the appellants to adjourn the appeals sine die is accordingly declined.

19. In view, however, of the substantial questions of law raised by the learned Counsel for the appellants regarding the legality of the impugned order we admit the appeals to regular hearing.

20. Admit. Notice. Record.

21. Relist for 25-10-2022. C.M.A. No. 01 of 2022.

22. Notice for 25-10-2022.

23. Meanwhile, no coercive measures shall be adopted by the CCP/ the respondent against the appellants for recovery of the impugned amount. SA/1/CAT Order accordingly.