AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2018 (12) TMI 1683
X X X X Extracts X X X X
X X X X Extracts X X X X
....ha, Swathi Girimaji, Areen De, Vipul Wadhwa, Harsh Kaushik, Atul Dua, Chinmayee Chandra, Ankush Walia, Param Tandon, Anju Berry, Aashish Gupta, Aditya Mukherjee, Sugnadha Rohatgi, S.S. Shroff, Sanjay Kapur, Megha Karnwal, Mansi Kapur and Shubhra Kapur, Advs. JUDGMENT A.K. Sikri, 1. Leave granted. 2. Reliance Jio Infocomm Limited (hereinafter referred to as 'RJIL') has filed information Under Section 19(1) of the Competition Act, 2002 (hereinafter referred to as the 'Competition Act') before the Competition Commission of India (for short, 'CCI') alleging anticompetitive agreement/cartel having been formed by three major telecom operators, namely, Bharti Airtel Limited, Vodafone India Limited and Idea Cellular Limited (Incumbent Dominant Operators) (hereinafter referred to as the 'IDOs'). Similar Informations Under Section 19 of the Competition Act were also filed by one Mr. Ranjan Sardana, Chartered Accountant, and Mr. Justice Kantilal Ambalal Puj (Retd.). These were registered by the CCI as Case Nos. 80-81, 83 and 95 respectively. As per Section 26 of the Competition Act, on receipt of such an information, the CCI has to form an opinion a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arties", "persons", "stakeholders", "service providers", "consumers" and "enterprise" are bound by the statutory agreements/contracts, apart from related policy, usage, custom, practice so announced by the Government/Authority, from time to time. c) The question of interpretation of clarification of any "contract clauses", "unified license", "interconnection agreements", "quality of service Regulations", "rights and obligations of TSP between and related to the above provisions", are to be settled by the Authorities/TDSAT and not by the Authorities under the Competition Act. d) The concepts of "subscriber", "test period", "reasonable demand", "test phase and commercial phase rights and obligations", "reciprocal obligations of service providers" or "breaches of any contract and/or practice", arising out of TRAI Act and the policy so declared, are the matters within the jurisdiction of the Authority/TDSAT under the TRAI Act only. e) The Competition Act and the TRAI Act are independent statutes. The statutory authorities under the respective Acts are to discharge their power and jurisdiction in the light of the object, for which they are established. There i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d "market" has clearly defined the respective rights and obligations of the concerned parties/persons. j) Impugned order dated 21 April 2017 and all the consequential actions/notices of the Director General under the Competition Act, therefore, in the present facts and circumstances, are not mere "administrative directions". k) Impugned order dated 21 April 2017 and all the consequential actions/notices of the Director General under the Competition Act are, therefore, illegal, perverse and also in view of the fact that it takes into consideration irrelevant material and ignores the relevant material and the law. l) Every majority decision cannot be termed as "cartelisation". Even ex-facie service providers and its Association COAI have not committed any breaches of any provisions of the Competition Act. 131. Hence the following ORDER a) Impugned order dated 21 April 2017, passed by the Competition Commission of India (CCI) under the provisions of Section 26(1) of the Competition Act, 2002 in case Nos. 81 of 2016, 83 of 2016 and 95 of 2016 and all the consequential actions/notices of the Director General Under Section 41 of the C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....formation to the effect that the particular act appears to be anticompetitive, only thereafter the CCI gets jurisdiction to go into the question of such anti-competitive practice. Primarily the message behind the decision of the High Court is that jurisdictional facts are to be decided by the authorities under the TRAI Act which has the exclusive jurisdiction to determine those issues as the TRAI is the statutory authority established for this very purpose, and unless there is a determination of these facts, the machinery under the Competition Act cannot be invoked. To put it otherwise, the judgment proceeds to decide that it was premature for the CCI to entertain the Information for want of determination of such issues that fall within the domain of the TRAI Act. 5. It is obvious that the RJIL is not happy with the aforesaid outcome. Even the CCI feels aggrieved. CCI has impugned this decision by filing four special leave petitions, while the other one has been filed by the RJIL. 6. The material facts which are absolutely essential to determine the controversy, eschewing the unnecessary details, may now be recapitulated: Factual Background: With the decision of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nstituted as a statutory body which is to ensure healthy competition in markets thereby preventing the practice of having adverse effect on competition; to promote and sustain the competition in markets; to protect the interest of consumers and to ensure freedom of trade. In that sense, the CCI is also a regulator. But a unique feature of the CCI is that it is not sector based body but has the jurisdiction across which transcends sectoral boundaries, thereby covering all the industries, with focus on the aforesaid object and purpose behind the Competition Act, 2002. 7. In the instant appeals, width and scope of the powers of the CCI under the Competition Act, 2002 pertaining to telecom sector i.e. in respect of the companies in telecom industry providing telecom services is to be defined vis-a-vis the scope of the powers of TRAI under the TRAI Act, 1997. It has arisen in these appeals, in the following background: As mentioned above, TRAI is the regulatory which regulates the functioning of the telecom service provider i.e. the telecom sector. Section 11 of the TRAI Act enumerates various functions which TRAI is supposed to perform under the Act. Section 13, likewise, e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rate letters dated July 19, 2014 requested inter alia the aforementioned telecom operators to augment POIs as per the RJIL's request. Further, responses of the respective companies were also sought on the issues raised by RJIL, within seven days. Idea responded by sending letter dated July 26, 2016 to RJIL denying that there had been any delay in augmentation of POIs and further stated that it is willing to fully support RJIL and that it had instructed its circle teams to augment the POIs on the basis of traffic congestion as per the ICA. Likewise, Airtel also sent reply dated August 03, 2016 to TRAI, inter alia stating that augmentation of POIs shall be undertaken as per the terms and conditions of the ICA and on the basis of traffic trends post their commercial launch. RJIL was not satisfied with such responses. It sent another letter dated August 04, 2016 to TRAI reiterating its earlier request for augmentation of POIs by the subject telecom operators. In the meantime, even Cellular Operators Association of India (COAI) intervened by addressing communication dated August 08, 2016 to TRAI wherein it took a stand by stating that the RJIL was providing free service to millions ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2016 to IDOs and RJIL for violation of Standard of Quality of Service of Basic Telephone Service (Wireline) and Cellular Mobile Telephone Service Regulations, 2009 (hereinafter referred to as the 'QoS') and for provision of the License Agreements. Similar show cause notices were also sent to other telecom operators. On October 21, 2016, TRAI issued recommendations to DoT after finding that IDOs have violated conditions under the QoS, interconnection agreements and Unified License. The TRAI inter alia stated in its recommendation as under: 21. ... (vii) It is evident from the above clauses that the licensees are mandated to provide interconnection to all eligible telecom service provider. However, as mentioned in para 6 above, Airtel along with other service providers have jointly through their association (COAI), declined Point of Interconnection to RJIL which is willful violation of the above mentioned license conditions. ...(x) COAI's letter dated 2nd September, 2016 which was confirmed by Airtel in the meeting held on 9th September, 2016 clearly indicates attempt by three service providers namely, Airtel, Vodafone India Limited and Idea Cellular Lim....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... conduct of refusal to facilitate call termination services and denial of mobile number portability. As discussed earlier, the Commission is satisfied that there exist a prima facie contravention of Section 3(3)(b) of Act, as the ITOs appear to have entered into an agreement amongst themselves through the platform of COAI, to deny POIs to RJIL. Having been prima facie convinced that the impugned conduct is an outcome of the anti-competitive agreement amongst ITOs, Commission does not find it appropriate to consider the same impugned conduct as unilateral action by each of the ITOs. The Commission therefore at this stage does not find it necessary to deal with the allegations and submissions regarding abuse of dominance in contravention of the provisions of Section 4 of Act. 24. In view of the foregoing, the Commission directs the DG to cause an investigation into the matter under the provisions of Section 26(1) of the Act. Considering the substantial similarity of allegations in all the informations, the Commission clubs them in terms of the proviso to Section 26(1) of the Act read with Regulation 27 of the Competition Commission of India (General) Regulations, 2009. The D....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tant cases ought to be closed Under Section 26(2) of the Act..." (hereafter "Dissent Note"). 16. On June 08, 2017, the Director General issued a letter of investigation to the Appellant seeking call data records in respect of certain identified mobile numbers by June 19, 2017. On June 19, 2017, Respondent No. 2 issued a letter of investigation to the Appellant seeking detailed information/documents to be furnished by June 30, 2017. Immediately thereafter, writ petitions were filed challenging the aforesaid order of the CCI as well as action of the Director General seeking information for holding inquiry. After preliminary hearing, the High Court passed interim orders dated June 30, 2017 on the basis of statement of the counsel for CCI that they shall not proceed with the investigation, which order continued till the disposal of the writ petitions. The High Court after hearing the matter finally allowed the writ petitions, as already mentioned. 17. It is clear from the above that as per RJIL, the Respondent service providers, along with COAI, entered into an anti-competitive agreement/formed a cartel and acted in an anti-competitive manner which is prohibited by the Act. On th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....according to the Appellants, the CCI had decided to examine the facts purely from the stand point as to whether the alleged Act constituted anti-competitive practice on the part of the Respondents and, therefore, contravened the provisions contained in Section 3 or Section 4 of the Act. This aspect, they had argued, could not be gone into by the TRAI as the CCI was the only statutory authority constituted under the Act to examine such an issue. 21. The Bombay High Court in the impugned judgment has, thus, inter alia, held as under: (i) the Competition Commission of India (CCI) had no jurisdiction in view of the Telecom Regulatory Authority of India Act, 1997 and the authorities and Regulations made thereunder; (ii) the CCI could exercise jurisdiction only after proceedings under the TRAI Act had concluded/attained finality; (iii) the order dated 21.04.2017 passed Under Section 26(1) of the Competition Act was not an administrative direction, but rather a quasi judicial one that finally decided the rights of parties and caused serious adverse consequences, because a detailed hearing had been given and many materials had been tendered in the courts of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....issue before the TRAI, on the other hand, is whether the delay/denial of POIs has violated terms of the licence agreement and QoS Regulations. The learned ASG pointed out that all the opposite parties have argued that they were justified in declining POIs to RJIL. However, the question before the CCI is whether the conduct of the parties was unilateral or collective action based on an agreement? It is precisely this issue that requires investigation by the Director General. If the conduct of the Respondents in delaying/denying POIs was unilateral (i.e. an independent decision made by each of them), then the conduct cannot be faulted Under Section 3 of the Act since Section 3 is premised on existence of an 'agreement' as defined in Section 2(b). However, if the conduct of the Respondents was based on an 'agreement', it would become illegal Under Section 3(3)(b) of the Act because its intent and effect is to 'limit or control production, supply, markets, technical development, investment or provision of services". It was contended that the conduct may well be legal under the TRAI Act and Regulations or other laws. However, it is the collusive/concerted nature of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the Commission has the jurisdiction to inquire into the issues alleged in the present information insofar as the same may result in contravention of the provisions of the Act. 10. It may be noted that the primary grievance of the Informants relates to cartelization by the Opposite Parties, amounting to violation of the provisions of Section 3 of the Act. In this regard, it must be noted that none of the areas covered Under Section 3 of the Act are covered by TRAI in its mandate as a sector regulator for TSPs. No doubt, TRAI has the responsibility/obligation to determine whether Quality of Service Regulations and interconnection norms on the levels of congestion at the points of interconnection are complied with it not. But apart from that, none of the other issues as envisaged Under Section 3 of the Act are looked into by TRAI. Specifically, TRAI cannot arrive at a determination as to whether the ITOs have colluded and cartelized to deny POIs to the detriment of RJIL in violation of Section 3(3) read with Section 3(1) of the Act. The scope of the Section 3 allegation is not whether the ITOs have breached the terms of their respective License agreement or ICA, rather, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vices, which- (a) directly or indirectly determines purchase or sale prices; (b) limits or controls production, supply, markets, technical development, investment or provision of services; (c) ..... (d) ..... shall be presumed to have an appreciable adverse effect on competition. 13. On the basis of the above, the Commission notes that in addition to ITOs, conduct of COAI also needs to be examined under the provisions of Section 3(3) of the Act. 26. He submitted that it was the statutory duty of the CCI, enumerated in Section 18 of the Act, to eliminate anti-competitive practices and the focus of the CCI was confined to this Court's judgment in the case of Haridas Exports v. All India Float Glass Manufacturers' Assn. and Ors. (2002) 6 SCC 600 wherein it was held that where statutes operate in different fields and have different purposes, it cannot be said that there is implied repeal by one, of the other. In the said case, this Court was considering alleged conflict between the Monopolies & Restrictive Trade Practices Act, 1969 and the Anti-Dumping Rules under the Customs Act/Customs Tariff Act. It was held: ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ASG pointed out that the allegation against the Respondents i.e. IDOs is that they have through an anticompetitive agreement/cartel, limited the provision of services by delaying or denying POIs to RJIL, with a view to block its entry in the market. As per him, such an agreement would raise a presumption of 'appreciable adverse effect' on competition. 27. Explaining the scheme of the Act, Mr. Narasimha referred to the provisions of Section 3 which prohibits anti-competitive agreements of the nature mentioned therein. He also referred to the definitions of 'agreement', 'cartel', 'enterprise' and 'service' contained in Section 2 of the Act and submitted that the definition of 'agreement' is not restricted to written agreements, but even extends to 'action in concert', which, according to him, is wide enough to allegations of RJIL, if proved correct, within the mischief of Section 3 of the Act. He also referred to Section 19(3) of the Act which lists certain factors to be considered in analysing adverse effect on competition and submitted that creation of barriers to new entrants in the market and foreclosure of competition by....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cause it was found that due to technical advancements, it was possible to give POIs in a much shorter time frame, and parties were using the 90-day period to delay the provision of POIs, as in the case of RJIL. However, the TRAI does not have the power to penalize for past conduct which was of anti-competitive nature. It was further submitted that while the competition law seeks to promote efficient allocation and utilization of resources by inter alia lowering the entry barriers in the market, the primary objective of the sectoral regulators like the TRAI is development of their respective sector. However, what is important to bear in mind is that the promotion of competition and prevention of competitive behaviour may not be high on the agenda of a sectoral regulator which makes it prone to 'regulatory capture'. The position has been very succinctly captured by the Report of the Working Group on Competition Policy, Planning Commission of India, Government of India, February 2007 which states as follows: 7.2.3 The objective of a sectoral regulator is to provide good quality service at affordable rates, but the promotion of competition and prevention of anti-compet....
X X X X Extracts X X X X
X X X X Extracts X X X X
....us behavioral conditions, the competition agencies are more likely to opt for structural remedies which would lead the sector to evolve to a point where sufficient new entry is induced thereby promoting genuine competition. According to him, keeping in view the aforesaid respective roles in mind, the Parliament in its wisdom and foresight has built in a mechanism within the Act to address apparent conflicts of jurisdiction. The 'comity' between the sectoral regulator (TRAI) and the market regulator (CCI) is entirely addressed by a reading of Section 21 and Section 21A of the Act. In any case, Section 60 of the Act had an overriding effect. To support his argument, the learned ASG relied upon State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772 wherein this Court dealt with the issue of whether a prescription of offence under the Mines & Minerals Development & Regulation (MMDR) Act would exclude the application of the Indian Penal Code. The Court held that due to the absence of a non-obstante clause, the application of the Indian Penal Code was not excluded. In the present case, the TRAI Act does not apply notwithstanding any other laws, and it does not contain an overriding effe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Foreign Exchange Regulation Act, 1973 (46 of 1973) and the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) for the time being in force or in the Memorandum or Articles of Association of an industrial company or in any other instrument having effect by virtue of any law other than this Act. 8. The effect of this provision is that the said Act will have effect notwithstanding anything inconsistent therewith contained in any other law except to the provisions of the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulation) Act, 1976. A similar non obstante provision is contained in Section 13 of the Special Court Act which reads as follows: 13. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any court, tribunal or other authority. 9. It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act which must preva....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or example, a statutory monopoly) that the jurisdiction of the Commission would be excluded. Following passage from the said judgment was specifically referred to: 80. According to the case-law of the Court of Justice, it is only if anti-competitive conduct is required of undertakings by national legislation, or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, that Articles 81 EC and 82 EC do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the understandings. Articles 81 EC and 82 EC may apply, however, if it is found that the national legislation leaves open the possibility of competition which may be prevented, restricted or distorted by the autonomous conduct of undertakings (Joined Cases C-359/95P and C-379/95P Commission and France v. Ladbroke Racing (1997) ECR I-6265, paragraphs 33 and 34 and the case-law cited). 34. Mr. Narasimha also referred to another judgment of the General Court of the European Union in Telefonica SA v. European Commission (T-336/07) wherein it was held that the Europea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was that as per the judgment in Steel Authority of India Limited case, such jurisdiction would be very narrow and is to be exercised in exceptional cases. According to him, no such exceptional circumstance arises in the instant case as order in question was only a prima facie view of the CCI and such an order was administrative in nature. Learned ASG specifically referred to the following discussion in the case of Steel Authority of India Limited: 38. In contradistinction, the direction Under Section 26(1) after formation of a prima facie opinion is a direction simpliciter to cause an investigation into the matter. Issuance of such a direction, at the face of it, is an administrative direction to one of its own wings departmentally and is without entering upon any adjudicatory process. It does not effectively determine any right or obligation of the parties to the lis. Closure of the case causes determination of rights and affects a party i.e. the informant; resultantly, the said party has a right to appeal against such closure of case Under Section 26(2) of the Act. On the other hand, mere direction for investigation to one of the wings of the Commission is akin to a depa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e in nature and could not be labelled as quasi-judicial order. In the same vein his further submission was that the observations of the High Court that the CCI has decided several issues and elements with clear adverse consequences was clearly erroneous and contrary to the well-established principle of law. In support, he also referred to the judgments of the Bombay and the Allahabad High Courts. 40. Dilating on his third proposition, namely, the CCI order was not perverse, he submitted that there was sufficient material before the CCI for formation of a prima facie opinion that the conduct of the Respondents was violative of Section 3(3)(b) of the Competition Act. He submitted that such material was taken into consideration and discussed in the order itself and he referred to certain paragraphs of the order dated April 21, 2017 in this behalf. In the process, he again emphasised that none of the observations made in the said order are conclusive findings in any way and not binding on the Director General and this was only the starting point, as held in the case of Excel Crop Care Limited. 41. M/s. Harish Salve, Dr. A.M. Singhvi, Ramji Srinivasan and Amit Sibal, learned senio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....AI. Attention of the Court was drawn to the letter dated August 08, 2016 (before the announcement of launch of services by Reliance Jio dated September 01, 2016) and the letter dated September 02, 2016 (after the launch of Reliance Jio) which, according to Reliance Jio, expose the common collusive conduct of these competitors to first delay the launch and secondly to scuttle the launch. It was also contended that the concerted, collusive conspiracy by the three existing IDOs (having a collective market share of 65%) to meet with each other under auspices of their association called Cellular Operators Association of India (COAI) and evolve a common strategy to respond to challenge posed by a new entrant RJIL, is by itself violative of Section 3 of the Act. The learned senior Counsel pointed out that the defence of the COAI is that it was merely lobbying the Government for enacting a change in law or Regulation to stop Reliance Jio from carrying out test on such a large scale by introducing limits on number of Test-subscribers. However, the letters of COAI revealed an active participation of taking sides of certain operators whose interest was to hinder, or at least slowdown the entr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty. In such circumstances, had the Coordination Committee acted only as trade unionists, things would have been different. Then, perhaps, the view taken by the Tribunal could be sustained. However, what is lost in translation by the Tribunal i.e. in applying the aforesaid principle of the activity of the trade union, is a very pertinent and significant fact, which was taken note of by the DG as well as CCI in its majority opinion. It is this: the Coordination Committee (or for that matter even Eimpa) are, in fact, association of enterprises (constituent members) and these members are engaged in production, distribution and exhibition of films. Eimpa is an association of film producers, distributors and exhibitors, operating mainly in the State of West Bengal. Likewise, the Coordination Committee is the joint platform of Federation of Senior Technician and Workers of Eastern India and West Bengal Motion Pictures Artistes' Forum. Both Eimpa as well as the Coordination Committee acted in a concerted and coordinated manner. They joined together in giving call of boycott of the competing members i.e. the informant in the instant case and, therefore, the matter cannot be viewed narro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ture. (iv) The impugned order passed by the CCI Under Section 26(1) of the Competition Act applies the 'prima facie test' and consequences of such an order are grave. Such an order was quasi-judicial in nature and, therefore, amenable to judicial review Under Article 226 of the Constitution of India. Thus, the writ petitions filed by the IDOs challenging this order were maintainable. (v) On merits, the prima facie order passed by the CCI was without considering the material submitted by the IDOs. In this behalf it was argued that the IDOs had provided sufficient POIs and given ample proof thereof, which was not taken into consideration by the CCI while passing the impugned order Under Section 26(1) of the Competition Act. This also becomes a valid ground to challenge the order by filing writ petition Under Article 226 of the Constitution of India. 47. Insofar as the argument of the Respondents that the TRAI Act is a complete code and the jurisdiction of CCI is totally ousted, the argument proceeded on the following basis: The real issue which arises is comparison of two regimes - one regulated by TRAI under the Indian Telegraph Act, 1885, Wirel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lowing manner: 49. It was submitted that pursuant to Section 11(1)(a)(iv) read with Section 11(1)(b)(ii), (iii), (iv) of the TRAI Act (including directions and Regulations issued by TRAI), the TRAI has been statutorily mandated to perform functions on a variety of matters including measures aimed at facilitating competition and regulated interconnection between service providers. Reliance was also placed on Section 12 of the TRAI Act which empowers TRAI with vast powers to discharge its functions, including to call for information, conduct investigations and issue such necessary directions as it may deem necessary for the discharge of its functions. Moreover, TRAI has also been empowered to issue appropriate directions Under Section 12 and make Regulations Under Section 36 of the TRAI Act. Section 29 of the TRAI Act provides for penalties for contravention of directions of the TRAI. Further, Under Section 14A of the TRAI Act, it has been provided that any person may make an application before the TDSAT. With regard to the jurisdiction, Section 15 and 27 of the TRAI Act provide for explicit bar on jurisdiction of the civil courts to determine any matter with regard to w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....R 1950 FC 83] the Federal Court observed that: (AIR p. 92, para 24) The nature of the suit and its purpose have to be determined by reading the plaint as a whole. It was further observed: (AIR p. 92, para 25) The inclusion or absence of a prayer is not decisive of the true nature of the suit, nor is the order in which the prayers are arrayed in the plaint. The substance or object of the suit has to be gathered from the averments made in the plaint and on which the reliefs asked in the prayers are based. It was further observed: (AIR p. 98, para 59) It must be borne in mind that the function of a pleading is only to state material facts and it is for the court to determine the legal result of those facts and to mould the relief in accordance with that result. 52. In support of the submission that a special legislation i.e. the TRAI Act, will prevail over the provisions of the Competition Act, which according to the Respondents is general in nature, reliance has been placed on the decisions of this Court in State of Punjab v. Labour Court, Jullundur and Ors. (1980) 1 SCC 4. In the said matter, the Court was inter alia seized of the issu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Act would prevail over the Competition Act. 54. Replying to the argument of the Appellants that the TRAI Act as well as the Competition Act are both special statutes and hence, the Rule of statutory interpretation of special law prevailing over the general law will be inapplicable in the present dispute, the Respondents referred to the decision of this Court in Ashoka Marketing Ltd. and Anr. v. Punjab National Bank and Ors. (1990) 4 SCC 406. In the said case, the Court was seized of an issue on whether the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 would override the provisions of the Delhi Rent Control Act, 1958 in relation to the premises belonging to Punjab National Bank Ltd., a body corporate under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Each side argued that the enactment relied upon by it is a special statute and the other enactment is general. The Court held that the Rent Control Act is a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi and even the Public Premises Act is a special statute relating to eviction of unauthorised occupants from public pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Delhi High Court. The emphasis was that there must first be clear findings on the above issues in the context of the TRAI Act, Rules and Regulations. According to him, that alone is not enough. It is necessary to establish that violation of the provisions of TRAI Act amounts to "abuse of dominance" or "anti-competitive agreements". As per him, Section 21 and 21A of the Competition Act make it clear that jurisdiction of the CCI is divided into parts, viz.: (a) Economic activity not regulated by any statutory authority. (b) Economic activity regulated by a statutory authority. In the latter case, Section 21A is mandatory and the CCI can act only in accordance with Sections 21A(1) and (2). Submission was that in economic activity that is regulated by a statutory authority, CCI can exercise powers Under Section 26 only after complying with Section 21A. It was predicated on the principle that when the law prescribes things to be done in a particular manner, all other modes of action are prohibited. (Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. (2003) 2 SCC 111) 58. In this hue, it was also argued that the decision of this Court in Competition ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ss undertaken by the CCI as there is no determination of any right or obligation of the parties to the lis; and (d) the order passed Under Section 26(1) does not entail civil consequences for any person as against a Section 26(2) order wherein rights of the informant are affected. 61. In the alternative, it was argued that the observations of the Court limited to the extent of the nature of powers vested in the CCI Under Section 26(1) needs reconsideration by this Court. Our discussion: 62. We have noted of three propositions which were advanced by Mr. Narasimha, learned Additional Solicitor General. These are the main issues which arise for consideration. In fact, other counsel for the parties have also made their submissions on these aspects. We would, therefore, focus our discussion on the said propositions. We would like to mention that while analysing the arguments of all the parties, we have kept in mind their detailed submissions as well as the principles laid down in various judgments cited by them, even if we have not made specific mention to these judgments in our discussion. A. Jurisdiction of the CCI 63. This is the principal issue which is the b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ctrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising; xx xx xx 3. Anti-competitive agreements. - (1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to case an appreciable adverse effect on competition within India. (2) Any agreement entered into in contravention of the provisions contained in Sub-section (1) shall be void. (3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which - (a) directly or indirectly determines purchase or sale prices; (b) limits or controls production, supply, markets, technical development, investment or provision of se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....chnical, scientific and economic development by means of production or distribution of goods or provision of services. xx xx xx 21A. Reference by Commission. - (1) Where in the course of a proceeding before the Commission an issue is raised by any party that any decision, which the Commission has taken during such proceeding or proposes to take, is or would be contrary to any provision of this Act whose implementation is entrusted to a statutory authority, then the Commission may make a reference in respect of such issue to the statutory authority: Provided that the Commission, may, suo motu, make such a reference to the statutory authority. (2) On receipt of a reference Under Sub-section (1), the statutory authority shall give its opinion, within sixty days of receipt of such reference, to the Commission which shall consider the opinion of the statutory authority, and thereafter give its findings recording reasons therefor on the issues referred to in the said opinion. xx xx xx 26. Procedure for inquiry Under Section 19. - (1) On receipt of a reference from the Central Government or a State Government or a statutory authority o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onsideration of the objections or suggestions referred to in Sub-section (5), if any, the Commission is of the opinion that further investigations is called for, it may direct further investigation in the matter by the Director General or cause further inquiry to be made by in the matter or itself proceed with further inquiry in the matter in accordance with the provisions of this Act. (8) If the report of the Director-General referred to in Sub-section (3) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act. xx xx xx 36. Power of Commission to regulate its own procedure. - xx xx xx (2) The Commission shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 61. Exclusion of jurisdiction of civil courts. - No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. 62. Application of other laws not barred. - The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. 67. The aforesaid provisions would indicate that the Act deals with three kinds of practices which are treated as anti-competitive and are prohibited. These are: (a) where agreements are entered into by certain persons with a view to cause an appreciable adverse effect on competition; (b) where any enterprise or group of enterprises, which enjoys dominant position, abuses the said dominant position; and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t. Economic development refers to a broader definition of an econoy's well-being, including employment growth, literacy and mortality rates and other measures of quality of life. Competition may bring about greater economic growth and development through improvements in economic efficiency and the reduction of wastage in the production of goods and services. The market is therefore able to more rapidly reallocate resources, improve productivity and attain a higher level of economic growth. Over time, sustained economic growth tends to lead to an enhanced quality of life and greater economic development. 2.2.1.3. Consumer Welfare: Competition policy contributes to economic growth to the ultimate benefit of consumers, in terms of better choice (new products), better quality and lower prices. Consumer welfare protection may be required in order to redress a perceived imbalance between the market power of consumers and producers. The imbalance between consumers and producers may stem from market failures such as information asymmetries, the lack of bargaining position towards producers and high transaction costs. Competition policy may serve as a complement to consumer pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce supporting the proposition that competition is beneficial for the economy. Economists agree that it has an important role to play in improving productivity and, therefore, the growth prospects of an economy. It is achieved in the following manner: International Competition Network - Economic Growth and Productivity Competition contributes to increased productivity through: Pressure on firms to control costs-In a competitive environment, firms must constantly strive to lower their production costs so that they can charge competitive prices, and they must also improve their goods and services so that they correspond to consumer demands. Easy market entry and exit-Entry and exit of firms reallocates resources from less to more efficient firms. Overall productivity increases when an entrant is more efficient than the average incumbent and when an existing firm is less efficient than the average incumbent. Entry-and the threat of entry- incentivises firms to continuously improve in order not to lose market share to or be forced out of the market by new entrants. Encouraging innovation-Innovation acts as a strong driver of economic growth through th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of liberalisation and privatisation as it was found that the law prevailing at that time, namely, Monopolies and Restrictive Trade Practices Act, 1969 was not equipped adequately enough to tackle the competition aspects of the Indian economy. The law enforcement agencies, which include CCI and COMPAT, have to ensure that these objectives are fulfilled by curbing anticompetitive agreements. 28. Once the aforesaid purpose sought to be achieved is kept in mind, and the same is applied to the facts of this case after finding that the anti-competitive conduct of the Appellants continued after coming into force of provisions of Section 3 of the Act as well, the argument predicated on retrospectivity pales into insignificance. 29. One has to keep in mind the aforesaid objective which the legislation in question attempts to subserve and the mischief which it seeks to remedy. As pointed out above, Section 18 of the Act casts an obligation on CCI to "eliminate" anti-competitive practices and promote competition, interests of the consumers and free trade. It was rightly pointed out by Mr. Neeraj Kishan Kaul, the learned Additional Solicitor General, that the Act is clearly ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this Commission is vested with inquisitorial, investigative, regulatory, adjudicatory and to a limited extent even advisory jurisdiction. Vast powers have been given to the Commission to deal with the complaints or information leading to invocation of the provisions of Sections 3 and 4 read with Section 19 of the Act. In exercise of the powers vested in it Under Section 64, the Commission has framed Regulations called the Competition Commission of India (General) Regulations, 2009 (for short "the Regulations"). 10. The Act and the Regulations framed thereunder clearly indicate the legislative intent of dealing with the matters related to contravention of the Act, expeditiously and even in a time-bound programme. Keeping in view the nature of the controversies arising under the provisions of the Act and larger public interest, the matters should be dealt with and taken to the logical end of pronouncement of final orders without any undue delay. In the event of delay, the very purpose and object of the Act is likely to be frustrated and the possibility of great damage to the open market and resultantly, country's economy cannot be ruled out. 68. It is for the aforesa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s with identifying in a systematic way the competitive constraints that undertakings face when operating in a market. This is the case in particular for determining if undertakings are competitors or potential competitors and when assessing the anticompetitive effects of conduct in a market. The concept of relevant market implies that there could be an effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market insofar as specific use of such product is concerned. In essence, it is the notion of 'power over the market' which is the key to analyse many competitive issues. 71. It is an admitted position that in the instant case we are dealing with the telecom market, which is the relevant market. An interesting feature is that this telecom market is also regulated by the statutory regime contained in the TRAI Act. Under the said Act, TRAI is established as a regulator which exercises control/supervision and also provides guidance to the telecom/mobile market. This statutory body is required to function as per the provisions of the TRAI ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....harges at such rates and in respect of such services as may be determined by Regulations; (d) perform such other functions including such administrative and financial functions as may be entrusted to it by the Central Government or as may be necessary to carry out the provisions of this Act: Provided that the recommendations of the Authority specified in Clause (a) of this Sub-section shall not be binding upon the Central Government. xx xx xx 14. Establishment of Appellate Tribunal. - The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to - (a) adjudicate any dispute - (i) between a licensor and a licensee; (ii) between two or more service providers; (iii) between a service provider and a group of consumers: Provided that nothing in this Clause shall apply in respect of matters relating to - (A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established Under Sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). 72. Other provisions in the telecom sector which are relevant for the purposes of these appeals are taken note of by the High Court as under: Telecommunication laws binds all 19. The relevant licenses Unified License (UL) - The UL issued by Department of Telecommunications, Government of India ("DoT") for providing telecommunication services on a pan India basis. Licence Under Section 4 of Indian Telegraph Act, 1885 therefore they become Telecom Service Provider ("TSP"). Relevant clauses of the UL (UASL) are - (a) Clause 16 of Part-I: Other conditions: The licensee is bound by all TRAI Orders/Directions/Regulations; (b) Clause 27 of Part-I: Network Interconnection, particularly, Clause 27.4, which requires a licensee to interconnect subject to compliance with prevailing Regulations and determinations issued by TRAI, and contemplates the execution of ICAs to establish interconnection in sufficient capacity and number to enable transmission and reception of messages between the interconnected systems; (c) Clause 29 of Part-I, requiring a licensee....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... standards prescribed by TRAI; (c) Clause 3 - Terms and Amendments - again makes clear that the ICA becomes applicable, effective and operational from the date of execution and is valid until both parties hold a valid license for providing access services; (d) Clause 4 - Applicability and Providing Services - reiterates that the ICA becomes applicable on signing and is subject to the terms and conditions of the telecom licence; (e) Clause 5.2 specifically provides that for the initial two years, provision and augmentation of transmission links shall be at the cost of RJIL; (f) Clause 5.7 contemplates conversion of two-way E1s into one-way E1s only after two years, which in other words mean that for two years all E1s must be two-way E1s; (g) Clause 9 provides modalities for enhancement of ports; and (h) Clause 10.7 again reiterates that Idea is bound to maintain QoS standards prescribed by TRAI. 22. Quality of Service Regulations, 2009 Quality of Service Regulations ("QoS Regulations, 2009") issued by TRAI Under Section 36 read with Section 11 of the TRAI Act. Clause 5(iv) and Clause 14, as relevant, are reprodu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Central Government has the exclusive privilege of establishing, maintaining and working telegraphs under the Telegraph Act and the Central Government is authorised to grant licence on such terms and conditions and in consideration of such payment as it thinks fit to any person to establish, maintain or work as telegraph within any part of the country. By virtue of Section 4 of the Telegraph Act, a service provider is duty bound to enter into a licence agreement with the former for unified licence, with authorisation for provision of services, as per the terms and conditions prescribed in the Schedule. As a condition of the said licence, the licensee agrees and unequivocally undertakes to fully comply with the terms and conditions stipulated in the licence agreement without any deviation or reservation of any kind. The licence is governed by the provisions of the Telegraph Act, the Indian Wireless Telegraphy Act, 1933, the TRAI Act and the Information Technology Act, 2000, as modified or regulated from time to time. 74. In order to ensure that there is smooth interconnectivity and a consumer who is the subscriber of mobile phone of one service provider, say for e.g. Vodafone, an....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., i.e. the equivalent to that which the party provides to itself. The interconnection agreement separately entered into different service providers is based on the format prescribed in the Telecommunication Interconnection (Reference Interconnect Offer) Regulations, 2002. 75. POI is defined in the agreement, in the following words: POI are those points between two network operators which allow voice call originating from the work of one operator to terminate on the network by other operator. 76. We may also note that on June 07, 2005 a direction was issued Under Section 13 read with Sub-clause (i) to (v) of Sub-clause (b) of Section 11 of the TRAI Act, which provides as follows: In exercise of the powers vested in it Under Section 13 read with Section 11(1)(b)(i), (ii), (iii), (iv) and (v) of the Telecom Regulatory Authority of India Act, 1997 and in order to ensure compliance of terms and conditions of license and effective interconnection between service providers and to protect consumer interest, the Authority hereby directs all service providers to provide interconnection on the request of the interconnection seeker within 90 days of the applicable payme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e system is not entirely free, but under some government control or heavily regulated, which is sometimes combined with State led economic planning that is not extensive enough to constitute a planned economy. 89. With the advent of globalisation and liberalisation, though the market economy is restored, at the same time, it is also felt that market economies should not exist in pure form. Some Regulation of the various industries is required rather than allowing self-Regulation by market forces. This intervention through regulatory bodies, particularly in pricing, is considered necessary for the welfare of the society and the economists point out that such regulatory economy does not rob the character of a market economy which still remains a market economy. Justification for regulatory bodies even in such industries managed by private sector lies in the welfare of people. Regulatory measures are felt necessary to promote basic well being for individuals in need. It is because of this reason that we find regulatory bodies in all vital industries like, insurance, electricity and power, telecommunications, etc. 78. Thus, with the advent of globalisation/liberalisation le....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s by all service providers; (iv) protection of the interest of the consumers of telecommunication service; (v) settlement of disputes between service providers; (vi) fixation of rates for providing telecommunication service within India and outside India; (vii) ensuring effective compliance of universal service obligations. 79. TRAI is, thus, constituted for orderly and healthy growth of telecommunication infrastructure apart from protection of consumer interest. It is assigned the duty to achieve the universal service which should be of world standard quality on the one hand and also to ensure that it is provided to the customers at a reasonable price, on the other hand. In the process, purpose is to make arrangements for protection and promotion of consumer interest and ensure fair competition. It is because of this reason that the powers and functions which are assigned to TRAI are highlighted in the Statement of Objects and Reasons. Specific functions which are assigned to TRAI, amongst other, including ensuring technical compatibility and effective interrelationship between different service providers; ensuring compliance of licence condi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... test phase and had not commenced 'commercial services'. RJIL had also stated that the demand for POIs was being made to 'provide seemless connectivity to targeted subscribers' as against 'test consumers'. Their submission was that it was not disclosed at all as to when RJIL was going to launch commercial services. On the basis of the aforesaid stand taken by the IDOs, their argument is that in the first instance it is the TRAI which is not only competent but more appropriate authority to consider these aspects as it is the TRAI which is the specialised body going by the nature of dispute between the parties, following aspects have to be determined by the TRAI: (a) Whether IDOs were under any obligation to provide POIs during test period? (b) As per the letter dated June 21, 2016 from RJIL, when IDOs were to commence provisioning of POIs to RJIL? (c) Whether the demand for POIs made by RJIL were reasonable or not? (d) Whether there was any delay/denial at the end of Vodafone in provisioning of POIs? (e) Whether the POIs were to be provided 'immediately' and during 'test phase'? (f) Whether....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in concluding that the concepts of "subscriber", "test period", "reasonable demand", "test phase and commercial phase rights and obligations", "reciprocal obligations of service providers" or "breaches of any contract and/or practice", arising out of TRAI Act and the policy so declared, are the matters within the jurisdiction of the Authority/TDSAT under the TRAI Act only. Only when the jurisdictional facts in the present matter as mentioned in this judgment particularly in paras 56 and 82 above are determined by the TRAI against the IDOs, the next question would arise as to whether it was a result of any concerted agreement between the IDOs and COAI supported the IDOs in that endeavour. It would be at that stage the CCI can go into the question as to whether violation of the provisions of TRAI Act amounts to 'abuse of dominance' or 'anti-competitive agreements'. That also follows from the reading of Sections 21 and 21A of the Competition Act, as argued by the Respondents. 85. The issue can be examined from another angle as well. If the CCI is allowed to intervene at this juncture, it will have to necessarily undertake an exercise of returning the findings on the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urpose behind the Competition Act is kept in mind. This has been taken note of and discussed in the earlier part of the judgment. As pointed out above, the Competition Act frowns the anti-competitive agreements. It deals with three kinds of practices which are treated as anti-competitive and are prohibited. To recapitulate, these are: (a) where agreements are entered into by certain persons with a view to cause an appreciable adverse effect on competition; (b) where any enterprise or group of enterprises, which enjoys dominant position, abuses the said dominant position; and (c) regulating the combination of enterprises by means of mergers or amalgamations to ensure that such mergers or amalgamations do not become anti-competitive or abuse the dominant position which they can attain. 89. The CCI is specifically entrusted with duties and functions, and in the process empower as well, to deal with the aforesaid three kinds of anti-competitive practices. The purpose is to eliminate such practices which are having adverse effect on the competition, to promote and sustain competition and to protect the interest of the consumers and ensure freedom of trade, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erson or enterprises which are parties to such agreements or abuse: Provided that in case any agreement referred to in Section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten percent of its turnover for each year of the continuance of such agreement, whichever is higher. (c) repealed; (d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission; (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any; (f) repealed; (g) pass such other [order or issue such directions] as it may deem fit. Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to Section 3 or Section 4 of the Act is a member of a group as defined in Clause (b) of the Explanation to Section 5 of the Ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ces, the CCI can be activated to investigate the matter going by the criteria laid down in the relevant provisions of the Competition Act and take it to its logical conclusion. This balanced approach in construing the two Acts would take care of Section 60 of the Competition Act as well. 92. We, thus, do not agree with the Appellants that CCI could have dealt with this matter at this stage itself without availing the inquiry by TRAI. We also do not agree with the Respondents that insofar as the telecom sector is concerned, jurisdiction of the CCI under the Competition Act is totally ousted. In nutshell, that leads to the conclusion that the view taken by the High Court is perfectly justified. Even the argument of the learned ASG is that the exercise of jurisdiction by the CCI to investigate an alleged cartel does not impinge upon TRAI's jurisdiction to regulate the industry in any way. It was submitted that the promotion of competition and prevention of competitive behaviour may not be high on the change of sectoral regulator which makes it prone to 'regulatory capture' and, therefore, the CCI is competent to exercise its jurisdiction from the stand point of the Comp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) of the Competition Act) was gone into. The Court, in no uncertain terms, held that such an order would be an administrative order and not a quasi-judicial order. It can be discerned from paragraphs 94, 97 and 98 of the said judgment, which are as under: 94. The Tribunal, in the impugned judgment, has taken the view that there is a requirement to record reasons which can be express, or, in any case, followed by necessary implication and therefore, the authority is required to record reasons for coming to the conclusion. The proposition of law whether an administrative or quasi-judicial body, particularly judicial courts, should record reasons in support of their decisions or orders is no more res integra and has been settled by a recent judgment of this Court in CCT v. Shukla & Bros. [(2010) 4 SCC 785: (2010) 2 SCC (Cri.) 1201: (2010) 2 SCC (L & S) 133], wherein this Court was primarily concerned with the High Court dismissing the appeals without recording any reasons. The Court also examined the practice and requirement of providing reasons for conclusions, orders and directions given by the quasi-judicial and administrative bodies. xx xx xx 97. The abo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... inclined to refer the matter to a larger Bench for reconsideration. 96. It was, however, argued that since the case of Steel Authority of India Limited was not dealing with the telecom sector, which is regulated by the statutory regulator, namely, TRAI under the TRAI Act, that judgment would not be applicable. Merely because the present case deals with the telecom sector would not change the nature of the order that is passed by the CCI Under Section 26(1) of the Competition Act. However, it raises another dimension. Even if the order is administrative in nature, the question raised before the High Court in the writ petitions filed by the Respondents touched upon the very jurisdiction of the CCI. As is evident, the case set up by the Respondents was that the CCI did not have the jurisdiction to entertain any such request or Information which was furnished by RJIL and two others. The question, thus, pertained to the jurisdiction of the CCI to deal with such a matter and in the process the High Court was called upon to decide as to whether the jurisdiction of the CCI is entirely excluded or to what extent the CCI can exercise its jurisdiction in these cases when the matter could ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a court or tribunal. xx xx xx 36. It is thus clear that for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide adjudicatory facts or facts in issue. 97. Thus, even when we do not agree with the approach of the High Court in labeling the impugned order as quasi-judicial order and assuming jurisdiction to entertain the writ petitions on that basis, for our own and different reasons, we find that the High Court was competent to deal with and decide the issues raised in exercise of its power Under Article 226 of the Constitution. The writ petitions were, therefore, maintainable. C. Whether the High Court could give its findings on merits? 98. Once we hold that the order Under Section 26(1) of the Competition Act is administrative in nature and further that it was merely a prima facie opinion directing the Director General to carry the investigation, the High Court would not be competent to....