Writ petitions are liable to be rejected on the ground of availability of the alternative remedy.
A writ petition is an application filed before a Court, requesting to issue a specific writ. In India, writs are issued by the Supreme Court under Article 32 of the Constitution of India and by the High Court under Article 226 of the Constitution of India. However, a writ petition can be rejected due to many reasons such as- not filing in due time, no substantial question of law is involved or alternative remedies are there. One such case was decided by Mr. Devender Kumar Sikri (Chairperson), Mr. S. L. Bunker (Member), Mr. Sudhir Mital (Member), Mr. Augustine Peter (Member), Mr. U. C. Nahta (Member), Justice G. P. Mittal (Member) in the case of Maj Pankaj Rai, Pankaj Gupta &amp; Shri Lakshmi Reddy(informants) vs. NIIT Ltd. (Opponent Party) (Case Nos. 47, 48 &amp; 49 of 2017). The facts of the case are that the Informants have the franchisees of the Opponent Party in the city of Hyderabad and are engaged in the business of provision of computer education/ training services. They offer computer education to public for making them more proficient in use of computer software. The Informants have filed a case against the franchisee of the OP. The Informants claim that they were first granted rights to offer a computer diploma programme through the franchisee, but these rights were later cancelled by the OP, However, according to the informants’ claim, the OP has been unfairly continuing the same course at its own facility in Hyderabad’s Basheerbagh. It is further claimed that the OP has been approaching schools in the Informants’ territory directly and has been giving computer-related courses through its application ‘nguru‘. Furthermore, it is claimed that the OP has been encroaching on the region allowed under the licencing agreement, depriving the Informants of their due portion of money generated by that territory. It is claimed that the OP has a different pricing structure for its consumers in metros versus its network centres, i.e., non-metro, which is damaging to both students (customers) and franchisees because the higher rates make the franchisees’ courses uncompetitive. Furthermore, the OP has a different revenue sharing slab and licence renewal price for its franchise licensee in metros than it does for network centres. It is also alleged by the informants that the OP is engaging in market manipulation through the NIIT.tv project, which is an online platform that offers free courses. Due to this, the prospective clients in a franchisee’s region might register online and subscribe for courses through NIIT.tv. The OP is accused of damaging the franchisees’ businesses by directly selling courses to schools, universities, and working professionals via this online platform. Many other such allegations related to this matter were put by the informants against the OP. Based on the aforementioned allegations, the Informants have filed a petition the Commission and prayed to conduct an investigation into the OP’s alleged abuse of dominant position, to direct the OP to discontinue and refrain from entering into any agreement containing allegedly unfair clauses, and to direct the OP to compensate the Informants. The Commission observed that there is no prima facie case framed against the OP. It was held that OP does not possess the market power to act independently of the competitive forces in the relevant market or has the ability to affect its competitors or consumers in the relevant market in its favour. Therefore, the OP is not found to be in a dominant position in the relevant market. it was noted that the prevailing competition is compelling the OP to venture into online mode of delivery though it learning portals such as Training.com, nguru and NIIT.tv.  The prevailing competition is compelling the OP to venture into online mode of delivery. It was also observed that the OP supplies all the necessary course materials and training to its faculty members without discrimination and also equips them with the necessary equipment and training without discrimination. The Commission is of the view that no case under Section 3 is made out against the OP in the instant matters. Owing to differences in the factors such as lower awareness in non-metro areas, lack of affordability by the student in non-metros, responsibility of marketing and placements of students etc., the differential pricing of courses does not seem to be arbitrary. However, Major Pankaj Rai (Informant 1) filed various writ petitions and review petitions before the Hon’ble High Court of Hyderabad. However, the judge stated that writ petitions are liable to be rejected on the ground of availability of the alternative remedy and dismissed the writ petition and the review petition as well. Dissatisfied with the orders of Hon’ble High Court of Hyderabad, the informant moved to Hon’ble NCLAT, where the court dismissed his petition saying that there is no “sufficient cause” for not exercising the statutory right of appeal. he appeals is accordingly dismissed as being barred by limitation. The informant against challenged the orders of Hon’ble NCLAT before the Hon’ble Supreme Court of India, as a Civil Appeal, where the court dismissed his appeal by saying that the appellate tribunal has ruled that the delay in filing an appeal against the decision of a High Court judge to dismiss a petition under Article 226 could not have been acceptable. The legislation requires an appeal to be submitted within sixty days, but the appeal was filed after a delay of seven hundred days.
 Case No. 417 NIIT Ltd. Case No. 417 NIIT Ltd. Case No. 417 NIIT Ltd. COMPETITION COMMISSION OF INDIA Case Nos. 47 48 and 417 In Re: Maj. Pankaj Rai Opposite Party Opposite Party In Re: Pankaj Gupta Informant In Re: Shri Lakshmi Reddy Eddula Informant Opposite Party This order shall govern disposal of an application dated 02.04.2021 moved by the Informant in Case No. 417 i.e. Major Pankaj Rai whereby and whereunder the order dated 28.11.2017 passed by the Commission in the present batch of Informations closing the matters finding no contravention of the provisions of the Competition Act Case Nos. 47 48 and 417 2002 is sought to be recalled and reviewed. Separately but concurrently another application of even date has been moved by this Informant seeking condonation of delay of 1193 days in moving the instant review recall application. For appreciating the genesis of and developments leading up to the filing of the instant application it would be appropriate to recapitulate the events arising out of the order dated 28.11.2017 passed by the Commission in a chronological manner which would demonstrate the egregious misconduct of Major Pankaj Rai in abusing the regulatory process whereby a final order passed by the Commission under Section 26(2) of the Act which has been affirmed by the Hon’ble Appellate Tribunal and the Hon’ble Supreme Court in statutory appeals is sought to be reopened. In the captioned matters the Commission vide a common order dated 28.11.2017 passed under Section 26(2) of the Act closed all the three Information finding no case of contravention of the provisions of the Act. This order was put to challenge in judicial review by Major Pankaj Rai by filing a writ petition bearing W.P. No. 422217 before the Hon’ble High Court of Hyderabad. The said writ petition came to be dismissed by a judgment and order dated 14.02.2018 passed by the learned Single Judge of the Hon’ble Hyderabad High Court by noting that the impugned order could be challenged in statutory appeal before the Hon’ble National Company Law Appellate Tribunal NCLAT). The relevant excerpts from this order are noted below: “….This Court has absolutely no scintilla of hesitation nor any traces of doubt to hold that the present writ petitions are liable to be rejected on the ground of availability of the alternative remedy….” 4. Aggrieved thereby and dissatisfied therewith Major Pankaj Rai preferred an intra court appeal before a Division Bench of the Hon’ble High Court of Hyderabad bearing Writ Appeal No. 456 of 2018. The same also came to be dismissed vide an order dated 31.12.2018 passed by the Division Bench by noting the following: Case Nos. 47 48 and 417 “8. The aforesaid position notwithstanding having regard to various submissions made by the appellants touching the merits of the matter and to satisfy ourselves as to whether any critical factor has been ignored for the purpose of exercising the discretion to entertain the writ petitions or not on the face of an admittedly available alternative remedy we had required the learned counsel appearing for the Commission to place before us the entire records relating to the case. We have perused those records. We do not see that the discretion exercised by the learned single Judge by relegating the appellants to the statutory appellate jurisdiction is unfounded on fundamental principles of law. We therefore do not find any ground to interfere with the impugned order. 9. For the aforesaid reasons the Writ Appeals fail. We clarify that even if the appellants were move to the Appellate Tribunal established under the Competition Act the said authority would not be bound by any of the observations made by the learned single Judge in the impugned order or by us through this Judgment in acting upon the statutory appeal in accordance with law…” 5. Against the aforesaid dismissal of the writ appeal Major Pankaj Rai filed a review petition before the Hon’ble High Court. In order to expedite the hearing on the review application Major Pankaj Rai moved a writ petition bearing W.P.No. 13119 before the Hon’ble Supreme Court under Article 32 of the Constitution of India in January 2019 and sought directions from the Hon’ble Supreme Court for early disposal of the review petition filed before the Hon’ble High Court. This writ petition also came to be dismissed whereafter the review petition pending before the Hon’ble High Court was sought to be withdrawn by Major Pankaj Rai. Accordingly the review petition was dismissed with the following order of the Court dated 02.12.2019: “Major Pankaj Rai Party in Person seeks liberty to withdraw the petitions. Therefore the petitions are hereby dismissed as withdrawn”. Case Nos. 47 48 and 417 A bare perusal of the aforesaid order makes it evident that while seeking withdrawal no liberty was prayed for by Major Pankaj Rai much less granted by the Hon’ble Court. Notwithstanding this factual backdrop Major Pankaj Rai has made a false averment in the application filed before the Commission seeking condonation of delay that the review petition was “withdrawn with liberty to approach NCLAT”1926 2020. This review petition was also dismissed by the Hon’ble Supreme Court vide its order dated 27.01.2021. In view of the afore detailed summary of events it is manifestly evident that Major Pankaj Rai was not pursuing his remedies in a bona fide manner. As previously noted the Commission passed a final order under Section 26(2) of the Act closing the matter on 28.11.2017. The statutory appeals filed thereagainst first before the Hon’ble Appellate Tribunal and subsequently before the Hon’ble Supreme Court stand dismissed as noted supra. In these circumstances filing of the instant application seeking review recall of the order dated 28.11.2017 passed by the Commission which has attained finality is gross abuse of the process of law. The Commission has also taken a serious note of the false averment made by Major Pankaj Rai in the application as noted in para 5 of this order. Case Nos. 47 48 and 417 Dated: 03 06 2021 Place: New Delhi In view of the foregoing the applications moved by Major Pankaj Rai stand dismissed. A copy of this order be also conveyed to NIIT Ltd. i.e. the Opposite Party in these matters and a copy of this order be further uploaded on the website of the Commission. 11. The Secretary is directed to communicate to the Informant Major Pankaj Rai Sd Ashok Kumar Gupta) Sd Sangeeta Verma) Sd Bhagwant Singh Bishnoi) Case Nos. 47 48 and 417 