The National Company Law Appellate Tribunal (NCLAT) has reserved its judgment on Google’s appeal against the Competition Commission of India (CCI) order of imposing a ₹1,337.76 crore fine on the tech giant for allegedly abusing its dominance in the Android mobile ecosystem.

The Bench of NCLAT Chairperson Justice Ashok Bhushan and Dr Alok Srivastava, Member (Technical) have reserved the verdict after hearing arguments in the case for over a month.

The Appellate Tribunal head Senior Advocate Arun Kathpalia and Maninder Singh represented Google LLC and Google India respectively, and Additional Solicitor General (ASG) N Venkatraman represented CCI.

The Appellate Tribunal had earlier refused to grant any interim relief to Google. The matter then travelled to the Supreme Court, which also denied relief to the company. However, the apex court requested the NCLAT to decide the matter by March 31.

Below is a brief summary of arguments made by the counsel in the case.

Google LLC argued that CCI’s order suffers from confirmation bias and is based on a similar order from the European Commission (EC) in 2018.

It was stated that the company’s agreements do not prevent equipment manufacturers from pre-installing competing apps with similar functionality.

Kathpalia refuted the CCI finding that Google reduced the ability and incentive for manufacturers to develop and sell devices operating on alternative versions of Android by making pre-installation of Google’s apps mandatory.

He further said mere dominance in a market does not mean abuse of dominance, and the reason Google why is popular among users is because of its effectiveness. Google is the most searched term on Bing, the search engine owned by Microsoft, Kathpalia said.

Arguments for CCI

ASG Venkataraman said that Google’s policies in India can be summed up in five phrases: digital feudalism, digital slavery, technological captivity, chokepoint capitalism and consumer exploitation.

He argued that the companies that did not sign Google’s contract have gone extinct. NCLAT was told that all these agreements are linked to one another, and cannot be signed independently.

It was stated that Google abused its dominant position in the Android Operating System (OS) market to indulge in unfair trade practices by restricting entry of other applications in its Play Store.

The ASG further submitted that Google controls nearly 98% of the smartphone market in the country, and if it is found to be violating competition laws, the regulator is duty bound to direct the company to mend its ways.

Intervenors

The Court also heard arguments from intervenors including American gaming company Epic Games, an Indian mobile application named Indus OS and a digital map data development company named MapmyIndia.

The Central Government enabled appointments of Advocates with ten years experience as Judicial members of various Tribunals while amending the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other conditions of service of members) Rules, 2020.

The amended Rules were notified by the Union Finance Ministry on June 30, and has come into force from then.

Search-cum-Selection Committee-

As per the amended Rules, Search-cum-Selection Committee means the Search-cum-Selection Committee referred to in sub-section (3) of section 184 of the Finance Act, 2017.

House Rent Allowance Rule Amended-

The Chairman, Chairperson, President, Vice Chairman, Vice Chairperson or Vice President shall have option to avail of accommodation to be provided by the Central Government as per the rules for the time being in force or entitled to house rent allowance subject to a limit of One lakh fifty thousand rupees per month and the Presiding Offices and Members shall have option to avail of accommodation to be provided by the Central Government as per the rules for the time being in force or entitled to house rent allowance subject to a limit of One lakh twenty-five thousand rupees per month.

Earlier, the Apex Court had observed that the exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members is contrary to the judgments in Union of India v. Madras Bar Association (2010) and Madras Bar Association v. Union of India.

The Court is of the view that, since the qualification for an Advocate of a High Court for appointment as a Judge of a High Court is only 10 years, the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal.

According to the amendment the qualification for appointment of the Chairman, Chairperson, President, Vice-Chairman, Vice- Chairperson, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member of the Tribunal, Appellate Tribunal or, as the case may be, Authority shall be such as specified in column (3) of the Schedule annexed to these
rules.

The qualifications required for advocates to be members of tribunals are given below.

1. Income-tax Appellate Tribunal under the Income tax Act, 1961

A person shall not be qualified for appointment as a Judicial Member, unless,–– (a) he has, for a combined period of ten years, been a District Judge and Additional District Judge; or (b) he has been a member of the Indian Legal Service with ten years of experience in litigation and has held a post of Additional Secretary or any equivalent or higher post for two years; or (c) he has been an advocate for ten years with substantial experience in litigation under Income-tax laws in Income-tax Appellate Tribunal, High Court or Supreme Court.

2. Customs, Excise and Service Tax Appellate Tribunal under the Customs Act, 1962

A person shall not be qualified for appointment as a Judicial Member, unless, — (a) he has, for a combined period of ten years, been a District Judge and Additional District Judge; or (b) he has been a member of the Indian Legal Service with ten years of experience in litigation and has held a post of Additional Secretary or any equivalent or higher post for two years; or (c) he has been an advocate for ten years with substantial experience in litigation under indirect tax laws in Customs, Excise and Service Tax Appellate Tribunal, High Court or Supreme Court.

3. Central Administrative Tribunal under the Administrative Tribunal Act 1985

A person shall not be qualified for appointment,– (a) as a Judicial Member, unless he,– (i) is, or has been, a Judge of a High Court; or (ii) has, for one year, held the post of Secretary to the Government of India in the Department of Legal Affairs or the Legislative Department including Member –Secretary, Law Commission of India; or (iii) has, for two years, held a post of Additional Secretary to the Government of India in the Department of Legal Affairs or Legislative Department; or (iv) has, for a combined period of ten years, been a District Judge and Additional District Judge; or (v) has, for ten years, been an advocate with substantial experience in litigation in service matters in Central Administrative Tribunal, Armed Forces Tribunal, High Court or Supreme Court.

4. Railway Claims Tribunal under the Railway Claims Tribunal Act 1987

(a) is, or has been, a Judge of a High Court; or (b) has, for a combined period of ten years, been a District Judge and Additional District Judge; or (c) has been an advocate for ten years with substantial experience in litigation in claim settlements pertaining to damage to life and property.

5. Securities Appellate Tribunal under the Securities Exchange Board of India Act 1992

(i) is, or has been, a Judge of a High Court; or (ii) has been an advocate for ten years with substantial experience in litigation in matters relating to financial sector before Securities Exchange Board of India, Securities Appellate Tribunal, High Court or Supreme Court.

6. Debts Recovery Appellate Tribunal (DRAT) – (b) member of the Indian Legal Service with ten years of experience in litigation and has held a post of Additional Secretary or any equivalent or any higher post for two years;
7. National Company Law Appellate Tribunal under the Companies Act, 2013

(a) is or has been a Judge of a High Court; or (b) is a Judicial Member of the National Company Law Tribunal for five years; or (c) has been an advocate for ten years with substantial experience in litigation in matters relating to company affairs before National Company Law Tribunal, National Company Law Appellate Tribunal, High Court or Supreme Court.

8. Appellate Tribunal for Electricity under the Electricity Act, 2003

(a) is, or has been, a Judge of a High Court; or (b) has, for a combined period of ten years, been a District Judge and Additional District Judge; or (c) has been an advocate for ten years with substantial experience in litigation in matters relating to power sector before Central Electricity Regulatory Commission, State Electricity Regulatory Commission, Appellate Tribunal for Electricity, High Court or Supreme Court.

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9. Armed Forces Tribunal under the Armed forces Act, 2007

(a) is, or has been, a Judge of a High Court; or (b) has, for ten years, been an advocate with substantial experience in litigation in service matters in Central Administrative Tribunal , Armed Forces Tribunal, High Court or Supreme Court.

10. National Green Tribunal under the National green Tribunal Act, 2010

(a) is, or has been, a Judge of a High Court; or (b) has, for a combined period of ten years, been a District Judge and Additional District Judge; or (c)has, for ten years, been an advocate with substantial experience in litigation in matters relating to environment and forest in National Green Tribunal, High Court or Supreme Court.

The Allahabad High Court on Monday has stayed the Debt Recovery Appellate Tribunal Prayagraj order of the auction of Mount Litera Zee School Jhunsi, affiliated to the CBSE, which was due to be held on Tuesday.

A single-judge bench of Justice Rajiv Joshi passed this order while hearing a Writ Petition filed by M/S Shiksha Education Trust.

“In pursuance of the direction of the appellate authority, the Tribunal below has directed to prepone the matter for March 4, 2021 and decide the same on the next date and even if not possible, the case be decided within 7 days thereafter positively”, the Court said.

The Counsel for the Petitioner submitted that before the Tribunal, March 17, 2021 is the date fixed and March 16, 2021 is fixed for auction of the properties belonging to the Petitioner Trust.

Senior Advocate Shailendra argued the Petition. They say that the school is being auctioned by the Trust by the order of Bank of India, Lohatiya Branch, Varanasi.

It is further contended that the Petitioner is ready to pay entire outstanding amount of loan which is more than Rs 6.16 crore, out of which the Petitioner has deposited Rs 95,00,000 and Rs 40,00,000 on two dates.

The petition demanded the cancellation of the order of DRAT on February 22, 2021 and the order of the authorized officer of the bank on February 06, 2021.

It is next contended that since the proceedings is pending before the Tribunal, there is no justification for holding any auction during the pendency of the said case.

In the fact circumstances of the case, the Tribunal is directed to conclude the hearing of the case if possible on March 17, 2021 and in case the Tribunal is not able to conclude the hearing on the date fixed, the Tribunal shall proceed with case on day to day basis.

“The auction which is scheduled to be held on March 16, 2021 shall remain stayed till the case is finally decided by Debts Recovery Appellate Tribunal, Allahabad”, the Court ordered.

The Petitioner has filed the Petition seeking following reliefs:

” A. Issue writ, order or direction in the nature of certiorari calling for the records and quashing the impugned order dated February 22, 2021 passed by the Debt Recovery Appellate Tribunal, Allahabad in Appeal (Siksha Education Trust Vs. Bank of India);

B. Issue writ, order or direction in the nature of certiorari calling for the records and quashing the impugned order/notice dated February 06, 2021 issued by the Authorized Officer, Bank of India, Lohatiya Branch, Varanasi informing the petitioner regarding auction proceedings scheduled to be held on March 16, 2021;

C. Issue a writ order or direction in the nature of mandamus restraining the respondent bank authorities from conducting the auction proceedings scheduled to be held on March 16, 2021 by the respondent bank and further to facilitate the Petitioner to provide sufficient time for depositing the remaining loan amount;

D. Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent authorities of bank as we as administration to release the educational institution, in dispute, so that studies of the students could be completed, practical and theory examination of CBSE may be conducted smoothly and further the school management may be provided facility to conduct the examination of other classes within time without any hindrance from the bank or police authorities; E. Issue any other writ, order or direction, which this Apex Court may deem fit and proper in the circumstances and facts of the case.”

The Court has disposed of the Petition, ordering the appeal and stopping the auction.

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The Supreme Court on Friday issued notice in the petition filed seeking directions to fill the vacancies of chairman, member and other administrative staff at the Appellate Tribunal for the Prevention of Money Laundering Act.

The notice was issued by the bench of Justices Ashok Bhushan,  R. Subhash Reddy and M.R. Shah under the Prevention of Money Laundering Act, 2002. The bench has sought reply in four weeks.

The petition has been filed by Advocate Amit Sahni, who has submitted that an RTI application filed by him revealed that out of the composition of 1 chairman and 4 members, the tribunal is functioning only with one member i.e. G.C. Mishra, who is also functioning as acting chairman. Hence, sufficient number of matters is not being taken up in natural course and litigants, lawyers and public at large is suffering for the same.

Moreover, as per the RTI reply, the petitioner was informed that 2,822 cases of PMLA, 66 cases of SAFEMA, 270 cases of NDPS, 1,077 cases of FEMA and 1,134 cases of PBPT are pending before the Tribunal.

It has further been submitted that various media reports in August 2019 showed that Justice Sunil Gaur, former Judge of Delhi High Court, was appointed chairperson of the Appellate Tribunal for PMLA following the retirement of Justice Manmohan Singh in September but the said appointment was not  notified. The Office of Chairman, ATPMLA is lying vacant since September 2019.

The petitioner has also stated that he had filed a representation dated December 26, 2020 to the Union government for relief sought in the present petition but no action has been taken upon the same to the knowledge of the petitioner and considering the urgency, the petitioner had no other option but to approach the Supreme Court.

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A petition has been filed in the Supreme Court seeking directions to fill the vacancies of Chairman, Member and other administrative staff at Appellate Tribunal, Prevention of Money Laundering Act, 2002 on utmost priority in the interest of justice.

The petition has been filed by Advocate Amit Sahni who has submitted that the RTI filed by him revealed that out of the composition of 1 Chairman and 4 members, the tribunal is functioning only with one member i.e. G.C. Mishra, who is also functioning as Acting Chairman. Hence, sufficient number of matters is not being taken up in natural course and litigants, lawyers and public at large are suffering due to it.

Moreover as per the RTI reply the petitioner was informed that 2822 cases of PMLA, 66 cases of SAFEMA, 270 cases of NDPS, 1077 cases of FEMA and 1134 cases of PBPT are pending before the Tribunal.

It has further been submitted that various media reports in August 2019 showed that Justice Sunil Gaur, Former Judge of Delhi High Court was appointed as chairperson of the Appellate Tribunal for the Prevention of Money Laundering Act (ATPMLA) following the retirement of incumbent Justice Manmohan Singh in September but the said appointment was not  notified. The Office of Chairman, ATPMLA is lying vacant since September 2019. 

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The petitioner has also stated that he had  filed a representation dated 26-12-2020 to the Union government for reliefs sought in the present petition but no action has been taken upon the same to the knowledge of the petitioner and considering the urgency, the petitioner had no other option but to approach the Supreme Court.

New Delhi (ILNS): The Supreme Court today reserved its judgment in a plea challenging the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020.

The bench comprising Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat has clarified that whenever the term of any Chairperson, Vice-Chairperson or members of the Tribunal is expiring, the same stands extended till December 12, 2020.

During the course of today’s hearing, Attorney General KK Venugopal submitted that the apex court that in Rojer Mathew v. South Indian Bank Ltd the court had upheld Section 184 of the Finance Act according to which the tenure should not exceed five years.

Venugopal further said: “Reappointment is made by the same selection committee. This is an entirely safe procedure where if a member is writing judgments in time and is working with integrity, then the member can be reappointed.”

With respect to the provision for housing for Tribunal members, the AG submitted that if the members are not accorded with the status of High Court Judges then as per Rojer Mathew case, housing facility cannot be given to such members.

On a plea for a separate Judge on the Search and Selection Committee, the AG submitted: “There are 19 Tribunals. Every time a vacancy arises, it has to be filled then and there. Having one more judge will affect the judicial functioning and judicial time.”

On Justice Nageswara Rao’s suggestion to the Government to revive the National Tribunals Commission as was suggested by the Court in Chander Kumar’s Judgment, the AG insisted that the bench reiterate the suggestion.

Concluding his submissions AG Venugopal submitted that Rules of 2017 were completely struck down and a vacuum was created which was later filled by 2020 Rules.

Senior Counsels Siddharth Luthra and CS Vaidanathan appeared for two applicants.

Senior Advocate AS Chandhiok, appearing for NCLT and NCLAT, urged the bench to protect the appointment of NCLAT chairperson, Justice Bansi Lal Bhat who will retire soon, until the Court passes orders on the petition.  

The Court expressed inclination to extend the tenure of any member whose tenure is about to expire till December 31. The bench has asked all the parties to submit their written submissions.

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The bench was hearing a Plea filed by The Madras Bar Association (MBA) challenging the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020, for contravening the principle of separation of powers.

The central government had already notified rules on the same in the year 2017 under the Finance Act, 2017. Both the rules and the act were challenged before the court.

In the case of Rojer Mathew Vs South Indian Bank Ltd., a five-judge bench of the Supreme Court had struck down the rules. These rules, providing the terms and conditions for service of members for at least 19 tribunals, were held to be “overstepping into the powers of the judiciary.”

The PIL states that the 2020 rules are in violation of several orders that upheld the non-interference of the executive in the appointments of the judiciary.

-ILNS