TaxTMI 
TaxTMI 
2003 (9) TMI 540
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....fair, unethical, restrictive trade practices by the appellants in not permitting the complainants and their associates from using the latest technology in Telecommunication known as 'Headend In The Sky' (HITS) which would facilitate easy distribution of television channels through a satellite to various Multiple System Operators (MSOs) and cable opera- tors from whom the programmes reach the various television viewers. They contended that the transmission of television programmes by the said HITS system which is approved by the Government of India would provide greater benefit to the public at large. They contended that this system is superior to the existing terrestrial distribution and is also economically cheap. They also urged that this system would ensure generation of higher revenues in terms of higher entertainment and service tax to the Government by 100% declaration. The complainants also alleged that the denial of such facilities to them by the appellants was with a view to prevent the introduction of Conditional Access System (CAS) which the Government of India has decided to introduce compulsorily in the areas notified by it. They also alleged that the said denial is wi....
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....for turnaround from the owners of the channels by entering into agreements clearly laying down terms and conditions permitting such turnaround of the channels. The appellants contend no such agreements have been entered into by the complainants and without doing so the said respondents are trying to take an undue advantage which amounts to misuse of the appellants proprietary right over the programmes owned by them. They also contend by using the technology of HITS, the said respondents are taking over the entire control over the telecast system which includes distribution to other MSOs and cable operators without accounting for the same to the appellants thereby causing huge financial loss to the appellants. They also contend that the CAS has not yet been introduced throughout India except may be in the city of Chennai, therefore, there was no mortal hurry for the complainants to use the HITS when the existing terrestrial system could have very well meet the needs of television viewers in the country. Therefore, there was neither a prima facie case nor any balance of convenience or any sort of urgency to make the impugned interim order in favour of the complainants. 8. The learne....
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.... orders. The appellants contend that the Commission has a conditional power to grant an interlocutory order as could be seen from the language of section 12A of the Act. In this regard, the appellants place reliance on the following words in section 12A of the Act : "(1) Where, during an inquiry before the Commission, it is proved...by order, grant a temporary injunction restraining such undertaking or person from carrying on any monopolistic or restrictive, or unfair trade practice until the conclusion of such inquiry or until further orders." From the said language of section 12A of the Act, the appellants contend that the Commission cannot grant an interlocutory order until the allegations made in the complaint are proved. It is argued that in the instant case the order of the Commission does not indicate what is the nature of violation which is proved even prima facie by the complainant which calls for the grant of an interim order. It is also submitted that from the material that was produced by the complainants themselves, it was clear that negotiations were in progress in regard to the request of the respondents and there was no immediate threat to their right to distribut....
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....ictive trade practice which will be prejudicial to the public interest or to the interest of traders etc. before an order for injunction can be issued. It is only if the trade practice which is being impugned is such that it would fall within the four corners of section 2(o), which define restrictive trade practice, can the Commission grant an injunction." (p. 606) A perusal of the above judgment shows that the power of the Commission to grant temporary injunction arises only after it is satisfied that a restrictive trade practice or unfair trade practice is being carried on. The emphasis on the words 'commission being satisfied' shows same to be a condition precedent for grant of an interim order whose satisfaction according to the judgment in Haridas Exports' case (supra) should be on proved facts. 13. From the perusal of the impugned order, we are unable to come to the conclusion that the Commission has addressed itself to the various issues which arise for its consideration even at an interim stage before making the impugned order. As noticed above, any conclusive opinion expressed by us in this regard in these appeals is likely to pre-empt the arguments that may be addressed....