In W.P.(C) 4599/2023-DEL HC- Delhi HC grants relief to Alliance of Digital India Foundation, directs CCI to consider applications challenging Google’s new Billing & Payments Policy by April 26 
Justice Tushar Rao Gedela [24-04-2023]

Read Order: ALLIANCE OF DIGITAL INDIA FOUNDATION Vs. COMPETITION COMMISSION OF INDIA & ORS

Tulip Kanth

New Delhi, April 24, 2023: The Delhi High Court has come to the aid of Alliance of Digital India Foundation by asking the Competition Commission of India to take up the plea challenging Google’s Payments & Billing Policy on or before April 26, 2023.

On the issue whether CCI was validly constituted presently with two members to continue its adjudicatory roles, the Bench said, “Merely because of a defect or a vacancy in the constitution of the CCI, the CCI cannot be considered as a statutory authority not having jurisdiction to adjudicate the complaints or other proceedings pending before it. Any interpretation, other than the aforesaid, would render the provisions of Section 15 otiose and which could not possibly be the intention of the Legislature either.”

The facts of this case were such that an anonymous informant filed an information before the Competition Commission of India (CCI) under Section 19 of the Competition Act, 2002 against Respondent- Google and the CCI registered the First Information. Thereafter, a prima facie order was issued under Section 26(1) directing the Office of the Director General (DG) to conduct an investigation against Google.

Subsequently, a second informant (Match Group Inc.) filed information before the CCI against Google under Section 19. The Commission registered the Second Information and the same was followed by an application for interim relief filed by Alliance of Digital India Foundation (Petitioner) against Google, seeking ad-interim relief restraining Google from implementing its Payments Policy under Section 33.The CCI also registered a Third Information which was finally clubbed with other Cases. 

After the conclusion of CCI oral hearings and when the final order was reserved, Google swiftly announced a user choice billing (UCB) pilot program for non-gaming app developers in India on September 1, 2022.

The CCI passed the final order and Google submitted its Compliance Report on its supposed implementation of the eight remedial directions given by the CCI. To the said Compliance Report filed by Google, Petitioner filed three applications, under Section 42 mainly for causing an inquiry into the compliance report filed by Google alongwith certain other prayers.

It was the petitioner’s case that  the applications under Section 42 had been necessitated since the directions passed by the CCI vide the Final Order has been contravened in a veiled manner, in that, the directions of the CCI to Google to not create and launch an alternate billing system to the already existing billing system i.e. Google Pay, so as to ensure that the consumers and digital app developers like the petitioners have alternate methods of payment system, was being violated. 

According to the petitioner, Google, though, is about to launch the User Choice Billing System, the said alternate bill paying system is a sham and the said respondents had not materially altered original commission system which was found to be discriminatory, keeping in view the finding that Google was in a dominant position in the arena of Android ecosystem.

The petitioner had approached the Commission to validly invoke doctrine of necessity in this case for initiating non-compliance proceedings against Google and issue an appropriate order for timely adjudication of the interim relief application and the application under Section 42 of the Competition Act, 2002.

The High Court was of the view that the submission that the constitution of CCI less than three members would create lack of jurisdiction of CCI as an adjudicatory authority couldnot be sustained.

The Bench observed that the provisions of Section 15 act as a saving clause in regard to a situation where a vacancy or a defect in constitution of the CCI would arise and any such vacancy or defect in the constitution would not invalidate any proceedings so far as the adjudicatory powers of the CCI is concerned. 

On the issue of  doctrine of necessity, the Bench opined that it is only when an adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent Tribunal can be constituted, that the doctrine of necessity may become applicable. 

So far as the submissions in regard to touching upon the merit and findings of the CCI in respect of monetization model of Google in context of maintainability of applications under Section 42 was concerned, the Bench left the same for consideration of the CCI leaving the rights of the parties reserved.

The High Court was also in agreement with the submission  that the doctrine of necessity is in respect of an institution and not a particular case. 

“In view of the above, there is no impediment, legal or otherwise, in directing the CCI to take up the applications under Section 42 of the Act, as filed by the petitioner, for hearing and considering the same in accordance with law on or before 26.04.2023. Accordingly, the petition stands disposed of in above terms”, the Bench held.