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 & Shri Lakshmi Reddy(informants) vs. NIIT Ltd. (Opponent Party) (Case Nos. 47, 48 & 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.

click here to read the judgment

Judgment Reviewed by Meenakshi Jena

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