Competition Law - Presumption in Section 3(3) contd..

This post is in continuation of this and this post.

Argument 2 - Irrebuttable presumption

Another useful aid of construction is the Parliamentary history which includes the Bill and the Reports of commissions or inquiry committees preceding the introduction of a Bill.( See CIT, MP v. Sodra Devi, AIR 1957 SC 832; Express Newspapers Ltd. v. Union of India, AIR 1958 578; Madanlal F. Dudhediya v. S. Chagandeo Sugar Mills Ltd., AIR 1962 SC 1543)

The recommendations of the Raghavan Committee Report which preceded the passing of the new Competition Act may thus, be looked at. The Report suggested that in general, the rule of reason test is required for establishing that an agreement is illegal. However, for certain kinds of agreements, the presumption is often that they cannot serve any useful or pro-competitive purpose and therefore do not need to be subject to the rule of reason test. They further suggested the following kinds of horizontal agreements to be presumed anti-competitive –

1) Agreements regarding prices, including those that directly or indirectly fix the purchase or sale price.

2) Agreements regarding quantities, including those aimed at limiting or controlling production and investment.

3) Agreements regarding bids.

4) Agreements regarding market sharing, by territory, type or size of customer or in any other way.

The report even referred to this presumption as the per se illegality rule, rooted in the provisions of the US law.

It may be pointed out that a significant number of the members of the Committee were not in favour of identifying categories presumed to be illegal, but the majority felt that such agreements are presumed to be illegal and this recommendation of the majority can be seen to have been given effect to by the legislators.

Thus having regard to the Raghavan Committee Report too, one can conclude that the intent of the legislature was to make the presumption under Section 3(3) irrebuttable.

Comments

Post a Comment

Popular posts from this blog

Competition Law - Presumption in Section 3(3) contd..

I have in my earlier posts,( here , here and here ) proposed argumets which may be made in favour of the the presumption being irrebuttable. I will now present the arguments  from the other side. Argument 1- Presumption Rebuttable . One of the principles of Interpretation of Statutes is that another statute may be referred to while interpreting a statute when the two are similar i.e. when they are statutes in pari materia  ( Harshad S. Mehta v. State of Maharashtra , (2001) 8 SCC 257) It has been held by the Supreme Court in State of Madras v. A Vaidyanath Aiyer , AIR 1958 SC 61, that it is not necessary that the entire subject-matter in the two statutes should be identical before any provision in one may be held to be in pari materia with some provision in the other. In this case, Section 4 of the Prevention of Corruption Act, 1947 which directs that on proof that the accused has accepted any gratification other than the legal remuneration, it shall be presumed unless the con
Read more

NOMINEE v/s LEGAL HEIRS

The Hon'ble Bombay High Court in its very recent decision, Harsha Nitin Kokate Vs. The Saraswat Co-op. Bank Limited & Others , held that position of a nominee under section 109A of the Companies Act is not merely that of a trustee for the estate of the deceased, and it further held that, "  on the death of the share holder, the nominee would become entitled to all rights in the shares to the exclusion of all other persons ." This means that, the nominee will be made the beneficial  owner thereof and all the rights incidental to ownership of shares would follow i.e. the right to transfer, pledge or hold the shares. The court based its decision on the express provisions of the section which provide as follows: ­S. 109A. Nomination of shares – (1) Every holder of shares in, or holder of debentures of a company may, at any time, nominate, in the prescribed manner, a person to whom his shares in or debentures of, the company shall vest in the event of his death. (2)
Read more

Retrospective Operation of PWDV Act

Amongst the many conflicting decisions arising out the application of Protection of Women Against Domestic Violence Act, one of them, is in respect of the operation of the Act. The Andhra Pradesh High Court held that the PWDV Act does not apply retrospectively and that an action under the Act can lie only if the acts of domestic violence are committed on or after 26 Oct 2006, i.e. the date on which the Act came into force. Similarly, a Delhi Metropolitan Court  and a JMFC in Goa also took the view that this Act will not be applicable if the acts complained of have been committed prior to the passing of the Act. On the other hand the Bombay High Court and Madras High Court have taken a different view. They held that, the court is competent to take cognizance of the act of domestic violence committed even prior to the Act came into force and pass necessary protection orders. The Act can be applied retrospectively to take cognizance of the act of violence alleged to have been committed
Read more