TaxTMI 
TaxTMI 
2017 (9) TMI 1926
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....s/Respondents, thereby directing an inquiry against them. The consequent show cause notices issued by the Director General ("DG"), are also challenged. 3. We are disposing of all these Writ Petitions finally, by consent of the parties, by this common Judgment/Order as the issues are common and they are based on identical facts and position, so the related laws, except few individual details. 4. The Complaints before the Commission (Case No. 81 of 2016 and Case No. 83 of 2016) have been filed by CA Ranjan Sardana and Mr. Kantilal Ambalal Puj, against the Petitioners (Opposite Parties (OPs), Cellular Operators Association of India (COAI), OP-1, Vodafone India Limited (VIL), OP-2, Bharti Airtel Limited (BAL), OP-3, Idea Cellular Limited (ICL), OP-4, Telenor (India) Communications Private Limited (TICPL), OP-5, Videocon Telecommunications Private Limited (VTPL), OP-6, Aircel Limited (AL), OP-7, (TSPs) and Reliance Jio Infocomm Limited ("RJIL"), OP-8. Reliance Jio Infocomm Limited ("RJIL") (Respondent) (Case No. 95 of 2016) has filed similar such information against the TSPS/OPS. 5. The allegations against all the Petitioners-TSPs, are of "cartelisation" by "action in concert" ....
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....o the market or to limit or control supply, technical development of provisions of services provided by RJIL. Hence, in our humble opinion, the instant cases ought to be closed under Section 26(2) of the Act. Details of individual parties- 7. The COAI is a premier Telecom industry association in the telecom Sector. It is a society registered under the Societies Registration Act, 1860 with the Registrar of Societies at Delhi in July 1996. It is an important interface between its member TSPs and the Government, regulators policy and opinion makers, financial institutions and technical bodies for formulation of policies and regulations and addressing the common problems of the telecom sector. Mr. C.A. Ranjan Sardana and Mr. Kantilal Ambalal Puj (informants) are the public spirited person and subscribers of telecom Service Provider RJIL. The Petitioners are the recognized service providers/operators in the Telecom market. CCI is an autonomous statutory authority established under Section 7 of the Competition Act. The Competition Act. 8. The object and purpose of the Competition Act is to prevent the practice having adverse affect on competition, to promote and sustain the c....
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....pair, conveying of news or information and advertising;" "Section 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 cause 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 services; (c) shares the market or source of production or provision of services by way ....
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.... of goods or provision of services. Section 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 therefore on the issues referred to in the said opinion.] Section 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 or on its own knowledge or information received under section 19, if the Commission is of the opinion th....
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....ission is of the opinion that further investigation is called for, it may direct further investigation in the matter by the Director General or cause further inquiry to be made 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 subsection (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.] Section 36- Power of Commission to regulate its own procedure.- (1) ..... (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 discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing co....
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....orce. Section 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. Section 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. 10. The Competition Commission of India (General) Regulations, 2009- "Rule 17. Preliminary conference - (1) The Commission may, if it deems necessary, call for a preliminary conference to form an opinion whether a prima facie case exists. (2) The Commission may invite the information provider and such other person as is necessary for the preliminary conference. (3) A preliminary conference need not follow formal rules of procedure." "Rule 18. Issue of direction to cause investigation on prima facie case. - (1) Where the....
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....by the Commission at the time of passing "prima facie opinion" for directing the inquiry, as contemplated under Section 19 read with Section 26(1) of the Competition Act. This is in the background that the Section nowhere contemplates to give personal hearing to the informant or to the affected person and/or any other person. However, the scheme of the Act and the regulations so read, including the Rules, the Commission in its discretion may call any such person for rendering assistance and/or to produce the record/material for arriving at, even the prima facie opinion. Therefore, there is no prohibition/restriction on the Commission from not calling material documents and assistance from any person. The Commission, therefore, has discretionary power and/or power to call for material documents, affidavits, even by permitting them to file amended information, materials, data and details. The Commission also has power, in view of the Regulations to hold conferences with the concerned person/parties including their advocates/authorized person. 13. The direction under Section 26(1), after formation of the prima facie opinion to cause and investigate into the matter is to the DG, whi....
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....e final order in favour of the informant and against the stated enterprise or vice versa. The final adverse order of Commission is subject to Appeal. It may further lead to claiming the compensation by the informant and/or claimant, as provided under Section 53-N of the Act. We have to consider, therefore, the impact of initiation of inquiry by the Commission at this stage itself, if the case is made out. 16. In the wake of globalisation and keeping in view the Economic Development of the country, responding to opening of its economy and resorting to liberalization, need was felt to enact a law ensuring fair competition in India by prohibiting trade practices which cause an appreciable adverse effect of competition within markets in India and for establishment of a quasi judicial body in the form of Competition Commission of India which would discharge the duty of curbing negative aspects of competition, the Competition Act, was enacted by the Parliament. Telecommunication Services- 17. We are dealing with the telecom market and its dealings, based upon the contract between the service providers, in question. The telecom/mobile market is under the control/supervision and t....
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....egulations; (ix) ensure effective compliance of universal service obligations; (c) levy fees and other charges 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: Section 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 sub....
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....al Code (45 of 1860) and the Appellate Tribunal shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)." Telecommunication laws-binds all- 19. The relevant licences- Unified License (UL)- The UL issued by Department of Telecommunications, Government of India ("DoT") for providing telecommunication services on a pan India basis. License 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 to ensure QoS Standards as may be prescribed by DoT/....
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....RAI; 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 licence 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 reproduced as under- a) Clause 5(iv) pres....
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....c. (ii) The Telecom Regulators which include the petitioners namely Idea Cellular, Bharati Airtel, Vodafone Ltd. as well as the respondent Reliance Jio Infocom provides Telecommunication Access Service and are PAN India Telecom Service Providers. The Service Providers are governed by the Cellular Mobile Telephone Service (CMTS)/Unified Access Service Licence (UASL) issued by Tele Communication Department, Government of India under Section 4 of the Indian Telegraph Act. (iii) The Central Government has exclusive privilege of establishing, maintaining and working telegraphs under the Indian Telegraphs 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 Indian 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 terms and conditions prescribed in the Schedule. As a condition of the said licence the licensee agrees and unequivocally undertakes....
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....e providers which mandates each of the party to the agreement to provide to the other, interconnection traffic carriage and all the technical and operational quality service and time lines 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) Regulation 2002. Provisions of points of interconnect is the pivotal point around the present litigation. 26. On 7 June 2005, the direction was issued under Section 13 read with sub-clause (i), (ii), (iii), (iv) and (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 licence 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 se....
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....market itself. The balance needs to be struck by the Authority, by keeping constant monitoring and making rules and regulations and implementing them effectively. 28. Therefore, taking overall view of the provisions of the TRAI Act and the authority so provided, keeping in mind their obligations and being of regulatory authority in the telecom sector, no other authority and/or Act takes away and/or override the power and the authority of the specified authority and its jurisdiction to deal and decide the aspect of "Quality of Service", in the telecommunication service sectors and the respective obligations of service providers. Restricted bundle of facts to understand the controversy and to decide the Writ Petitions (Noted from Idea Petition)- 29. By notification dated 7 June 2005, TRAI issued directions under Section 13 read with Section 11 of TRAI Act to all the Service Providers to provide interconnection on the request of the interconnection seeker within 90 days of the applicable payments made by the interconnection seeker. The DoT clarified on 25 August 2005 that test subscribers may include business partners and employees only. TRAI issued the standard of quality of....
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....help provide seamless connectivity to the targeted subscribers, RJIL will require sufficient interconnect capacity for inter-operator traffic at the Points of Interconnection ("POIs")..." 32. RJIL provided a forecast for POIs based on inter alia an assumption of "...an average call duration of 54 seconds...": 3,281 POIs (i.e. 2,586 Access POIs and 695 NLD POIs) for initial scenario of 22 million subscribers ("...for which number series is already allotted...") expected in the first quarter after launch. "Immediate demand" for POIs; Demand for 7,056 POIs (i.e. 5,703 Access POIs and 1,353 NLD POIs) for 50 million subscribers at the end of 3 months; Demand for 9,064 POIs (i.e. 7,326 Access POIs and 1,738 NLD POIs) for 75 million subscribers at the end of 6 months; and Demand for 10,070 POIs (i.e. 8,140 Access POIs and 1,930 NLD POIs) for 100 million subscribers at the end of 9 months. RJIL asked the Petitioner (Idea Cellular) to treat its letter as a "firm demand". The similar demands were made by other providers. 33. On 13 July 2016, Voda's reply to RJIL's Letter dated 21 June 2016, (5 July 16, 8 July 16, 9 July 16, 11 July 16 & 12 July 16) stating that "subject to tech....
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....RAI indicating extreme situation of denial of POIs, giving figures of insufficient POIs. On 8 August 2016, 11 August 2016 and 22 August 2016, Cellular Operators Association of India ("COAI") issued a letter to the DoT stating inter alia that RJIL was providing "...full-blown and full-fledged services, masquerading as tests, which bypass Regulations and can potentially game policy features like the IUC regime, non-predatory pricing, fair competition, etc..." and requesting the DoT's urgent intervention in the matter to ensure compliance to licence conditions and to the TRAI regulations and guidelines. COAI's letters dated 11 August 2016 to the DoT and the TRAI stated that:- "...COAI has not solicited RIL Jio in this response. However, the points made herein represent the views of the majority of the members of COAI..." COAI's August 22, 2016 letter to DoT stated that "...Reliance Jio, which is also a member of COAI, has a divergent opinion on this matter which they have communicated separately to the DoT and TRAI..." On 10 August 2016, RJIL's 3rd Letter to TRAI in response to COAI's Letter dt. 08.08.16 & failure of IDOs to comply. On 11 August 2016, C....
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.... operations. On 6 September 2016, COAI issued letters to the DoT and the TRAI stating that despite the commercial launch of services by RJIL, there was no change from the pre-launch situation. The letter states: "...The issues indicated below are the views of the majority members of COAI. They may not represent the views of one or our members namely RJio, whose views have not been solicited on this issue..." Further, "...Every member of COAI unanimously agrees with this letter except for RJio and RJio may represent separately in the matter..." On 9 September 2016, The TRAI convened a meeting of service providers (including the Petitioner and RJIL) to look into RJIL's complaints of inadequate POIs. Between 12 September 2016 to 20 September 2016, the Petitioner, RJIL and the TRAI exchanged 7 letters regarding POI allocation. On 15 September 2016, RJIL's 4th letter to TRAI informing that more than 10.2 Cr calls are still failing every day due to lack of adequate POIs (as per data enclosed) & requests compliance by IDOs with its Firm Demand dated 21 June 2016. On 19 September 2016, (T3), TRAI's letter to IDOs seeking Info wrt provisioning of POIs & traf....
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.... plans filed with TRAI cannot be considered as IUC non-compliant, predatory and discriminatory at present..." ("TRAI Tariff Order"). 42. On 21 October 2016, TRAI recommended to the DoT to impose a penalty of INR 950 crore on contesting service providers. "...non-compliance of the terms and conditions of license and denial of Interconnection to RJIL..." ("TRAI Recommendation"). On 22 October 2016, the Petitioner provided RJIL with 1,300 dedicated one-way NLD POIs for RJIL's outgoing traffic. On 2 November 2016, The Petitioner provided RJIL with: (a) 6,000 dedicated one-way Access POIs; and (b) 1,865 dedicated one-way NLD POIs, for RJIL's outgoing traffic. On 3 November 2016, Airtel's letter to RJIL allocating addl. E1s after more than 5 months (re:RJIL's letter dated 21 June 2016 and 12 October 2016) w/o any explanation for the delay; whereas, Airtel accepted to provide 75 million POIs ahead of time in November to meet the projections of December (Acts as virtuous). On 4 November 2016, the TRAI issued a letter to the Petitioner seeking further clarifications regarding rejection of requests for MNP. On 5 November 2016, the Petitioner provided RJIL with ....
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....t Petition (Civil) No. 685 of 2017 before the Delhi High Court against the TRAI Recommendation. On 27 January 2017, the Petitioner provided RJIL with (a) 11,515 dedicated one-way Access POIs; and (b) 3,960 dedicated one-way NLD POIs for RJIL's outgoing traffic. On 28 January 2017, for the first time since the Petitioner's letter dated November 29, 2016, RJIL issued a letter to the Petitioner providing them with the assumptions behind their demand for additional POIs dated November 16, 2016 inter alia on the assumption of "...an average call duration of 180 seconds..." Further, demonstrating a complete change in its stance, RJIL stated that:- "...the E1s provided by Idea are significantly less than RJIL's requirement of the E1s to meet the expected traffic. The current number of E1s is also falling short of the actual requirements to meet the QoS requirements..." 45. On 31 January 2017, Bharti Airtel filed an Application under Section 45 of the Competition Act read with Regulation 48 of the Competition Commission of India (General) Regulations, 2009 and prayed for initiative penalty proceedings against the Informant, mainly on the ground of willful suppressio....
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....y 2017, the TRAI responded to the DoT's reference dated April 5, 2017 and reiterated its position in the TRAI Recommendation, including inter alia recommending to the DoT to impose a penalty of about INR 950 crore (Approximately) on the each Petitioners/Service providers. 48. On 8 June 2017, Respondent-2 issued a letter of investigation to the Petitioner seeking call data records in respect of certain identified mobile numbers by 19 June 2017. On 19 June 2017, Respondent-2 issued a letter of investigation to the Petitioner seeking detailed information/documents to be furnished by June 30, 2017. On 20 June 2017, the Petitioner filed Civil Writ Petition No. 7164 of 2017 before the Bombay High Court seeking inter alia to quash the Impugned Order. On 21 June 2017, DG issued notices to Idea and COAI for information/documents. On 27 June 2017, the Petitioner issued a letter to Respondent-2 requesting for an extension of time until August 31, 2017 to furnish the information/documents sought by Respondent-2 vide its letter dated June 19, 2017. 49. On 30 June 2017, the Bombay High Court heard the matter where the counsel for Respondent-1 and Respondent-2 made a statement that they....
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.... that:- "...the revised charts do not form a part of the record in respect of Case No. 81 of 2016, and/or Case No. 83 of 2016 and/or Case No. 95 of 2016..." On 28 July 2017, the Petitioner mentioned the matter before the High Court out of turn to seek time for filing its Affidavits-in-Rejoinder. The High Court was pleased to grant the Petitioner time till 3 August 2017. The order passed by the Hon'ble High Court also recorded that: "...the statement made on June 30, 2017 by the learned counsel appearing for the respondent nos. 1 and 2 shall continue till next date of hearing..." 52. On 4 August 2017, RJIL served its Further Affidavit-in-Reply dated August 3, 2017 on the Petitioner. On 7 August 2017, the High Court was pleased to grant the Petitioner time to file its Further Affidavit-in-Rejoinder to RJIL's Further Affidavit-in-Reply. The High Court also recorded that the statement made by Counsel for Respondents 1 and 2 will continue till the next date of hearing. On 8 August 2016, COAI's letter to DOT and TRAI stating that "our member operators should no longer be expected to provide POIs while this charade of tests is being played out." The matter was l....
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....-General was directed to complete the investigation within period of 60 days. The dissent note/minority view, however, was of the opinion that on the basis of material available with the Commission, it was difficult to say that there is a prima facie case to hold that the ITO'S along with COAI had acted in a concerted manner to restrict RGIL's entry into market or to limit or control supply, technical development of provision of services provided by RJIL. According to the opinion of minority the instant cases ought to have been closed under Section 26(2) of the Act. Rival contentions of the parties- 55. Learned Senior Counsel Shri Harish Salve appearing on behalf of RJIL raised a preliminary objection on three counts namely: i) Maintainability of the writ petition in the light of the judgment in case of Competition Commission of India Vs. Steel Authority of India Ltd. 2010 (10) SCC 744 ii) Territorial Jurisdiction of the Bombay High Court to entertain the petition; iii) Forum convenience. 56. As regards the objection of territorial jurisdiction of the Bombay High Court, reliance was placed by Shri Salve in case of Union of India Vs.....
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....respective senior counsel representing the petitioners in response to the said preliminary objection. Shri Khambatta, learned Senior Counsel invited our attention to the fact that the Petitioner Telecom operators provide service in the State of Maharashtra and the effect of the impugned order would be felt in the State of Maharashtra. He argued that since the points of interconnect were to be provide connectivity in the State of Maharashtra, a part of cause of action leading to the filing of the present writ petition has arisen in the State of Maharashtra and therefore the Bombay High Court would definitely have jurisdiction to entertain the present petition. He relied upon the following judgments to support his contention. (i) In Navinchandra N. Majithia Vs. State of Maharashtra & Ors. (2000) 7 SCC 640 (Also see Rajendran Chingaravelu Vs. R.K. Mishra, Add. Commissioner of Income Tax & Ors. (2010) 1 SCC 457, (paragraphs 44 and 45), the Supreme Court held that in case of a writ petition against an order for investigation, the cause of action will arise in the place where a part of the investigation is to be conducted. Consequently, a writ petition against the order would li....
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....of Forum Convenience, he submits that it is the party who is "dominus litus" and he has to choose amongst the jurisdiction if both the courts have jurisdiction and they have chosen jurisdiction of this Court. 62. In support Shri Khambata relied upon the judgment in the case of Nasiruddin Vs. State Transport Appellate Tribunal 1975 (2) SCC 671. Para 37 of the said judgment reads as follows: "It would be open to the litigant who is the dominus litis to have his forum conveniens. The litigant has the right to go to a court where part of his cause of action arises. In such cases, it is incorrect to say that the litigant chooses any particular court. The choice is by reason of the jurisdiction of the court being attracted by part of cause of action arising within the jurisdiction of the court." 63. Responding to the preliminary objections of learned senior counsel Shri Harish Salve, learned senior counsel Shri Janak Dwarkadas appearing for the Petitioner in WP No. 7173 of 2017 has argued that the affidavit of RJIL did not raise a ground of lack of territorial jurisdiction in its affidavit-in-reply and according to him this objection is raised for the first time on 03.08.2....
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....eguard and it has been so observed by the Apex court in para 97 of the said judgment and thus it is always open to the judicial review. It is vehemently argued that the Supreme Court in the said judgment was neither concerned with nor it has opined - either in the form of obiter or by way of passing a reference - an order recording "minimum reasons" by which a prima facie opinion is formed under section 26(1) of the Competition Act, is not amenable to judicial review even if the same was arbitrary, unreasonable, perverse without application of mind and in excess of jurisdiction. According to the learned senior counsel the order of investigation of the nature contemplated by the Competition Act would amount to an unreasonable restriction on the petitioners' fundamental right to carry on business guaranteed by the Article 19(1)(g) of the Constitution of India and hence, this court in exercise of powers under Article 226 would review such a decision. Learned senior counsel Shri Chagla also advanced his arguments of the similar nature to rebut the preliminary objections raised by the learned counsel for the RJIL. He further argued that the argument of "forum Convenience" is offensi....
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....interconnecting RJIL's network to Idea's existing switches as specified in Schedule 1 to the interconnection agreement; b. RJIL is obliged to provide to Idea a forecast six months in advance to enable Idea to augment the required capacity on its network; c. In case any further POIs apart from switch locations set forth in Schedule 1 is agreed and established between the parties during the initial period of 2 years, the cost is to be borne by RJIL; and d. Traffic measurement for 7 days during busy hour every six months has to be taken to determine further capacity requirements. 68. According to Senior Counsel, the TRAI fixes Usage Charges under the Telecommunication Interconnection Usage Charges (IUC) Regulation 2003" (The Regulation). According to him, the RJIL started its operation in December, 2015 and on 21st June, 2016 they addressed a letter to the opposite parties informing that RJIL is conducting test trial of its services before its Commercial launch ..." and that RJIL, on reasonable grounds, is expecting over hundred million subscribers in the first year post launch of services. He refers to the particular portion of the said letter wh....
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....s and the Cellular operators have placed material before the Commission. Once the said course was adopted by the Commission it was mandatory on the part of the Commission to look into the said material and before arriving at a prima facie case it had to apply its mind to the material in hand and form a prima facie opinion on the basis of the said material. The learned Senior Counsel argued that the Commission arrived at a finding which is not based on the material placed before the Commission and in fact the very relevant material was kept out of consideration before forming a prima facie opinion and one of the relevant material being the chart submitted by Idea as well as the Cellular Operators before the Commission demonstrating that the demand raised by RJIL for points of interconnect was met by the Operators from time to time and in fact more points of interconnect were supplied than they were demanded. However, the majority decision of the Commission did not even advert to the said charts. According to him, the non-consideration of relevant material leads to perversity and he relies upon the judgment in the case of Barium Chemicals Limited & Anr. Vs. Company Law Board & Ors.&n....
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....ility of the writ petition in the light of the judgment in the case of SAIL (Supra), the learned Senior Counsel submitted that the jurisdiction of the Court is not ousted if the Court finds that the finding recorded by the Commission in forming of "Prima facie opinion" is found to be perverse. 72. According to him the order of the Commission speak for itself since two members have recorded a dissent finding and whatever was not considered by the majority members have been reflected in the order of the minority and on consideration of the said material the minority had arrived at a conclusion that no prima facie case exists. 73. The learned senior counsel Shri Dwarkadas submitted that a Telecom Industry is well regulated and the contract is a statutory contract entered into between the service providers. The terms of the contract mandate provision of POIs and the manner, the number, the time at which it is to be provided is stipulated under the Agreement. The grievance is about denial or the delay in provisions of POIs, which is nothing but alleged breach of the contract/agreement between the telecom service providers and there is a forum in the form of Telecom Disputes Settle....
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....tention was drawn to the complaints made by the COAI and it is argued that it is not an unreasonable complaint as the COAI's was making the grievance to the telecom regulator by pointing out the manner in which the RJIL was functioning and creating the subscriber base in the test phase when it had not commercially launched its services. It is argued before us that it is most appropriate for the COAI to approach the Service Regulator with their grievance and in any sense it can amount to cartelisation. Not only that a representation was also made to the Finance Minister, raising the grievance. 76. The impugned order of the Competition Commission is also assailed on the ground that it takes into consideration irrelevant material like the recommendations of TRAI dated 22.10.2011. It is argued by the learned senior counsel that the Competition Commission, with the majority judgments of the Competition Commission, adheres great importance to the findings of TRAI as a sectoral regulator. The Commission in paragraph 9 of its order refers to the information available on TRAI's Web-site that on 21.10.2016 the TRAI had recommended to the department of Telecom of imposing of penalt....
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.... the malice in fact is reflected from the order of Commission in view of the non-consideration of the material in the form of the chart in which the petitioner service providers have demonstrated that they had applied for POIs more than what was demanded by the RJIL. According to him, the Commission before arriving at a prima facie case and forming an opinion to make an enquiry into the existence of anti-competitive agreement, ought to have focused whether an agreement exists on the basis of any material submitted before it and whether such an agreement which had effect of delaying/denying POIs to RJIL was anti-competitive and likely to cause an apprehensible adverse effect on competition. However, the Commission has placed reliance on TRAIs' recommendations dated 22.10.2016 though they had not attend finality, without adverting to the effect whether the demand raised by the RJIL was "reasonable demand" and whether there was application on the part of the Petitioners to satisfy the said demand when RJIL was in itself test phase and had not yet commercially launched. According to the learned senior counsel the area as to test phase was a gray area and this fact is established in....
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....t a telecom service provider prior to 05.09.2016 and it had become a service provider only on 05.09.2016 on its commercial launch and in fact he also submitted that the RJIL is also submitted its report of subscriber base and QOS as per the regulations only after 05.09.2016. He attempted to draw distinction between the terms "subscriber" and "customer" and according to him mere acceptance of KYC forms from the consumer do not make them subscriber. As per Shri Chinoy since the said issue of existence of market goes to the root of the matter, the order passed by the competition Commission, declaring the conduct of COAI as anti competitive is totally perverse since it pre-supposes the market. 79. We have heard learned senior counsel Shri Aney, who was ably assisted by Advocate Shri Naushad Engineer appearing on behalf of the competition Commission of India. Learned counsel Shri Aney does not dispute the proposition canvassed by the learned counsel for the petitioner that the court in exercise of its writ jurisdiction would interfere only when a demonstrable perversity is pointed out. No issue about the territorial jurisdiction also. He highlighted the functioning of the Commission ....
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....has already concluded that the denial of POI was in violation of interconnect agreement and fine has been levied. According to him, the COAI has taken a stand on the issue and has not only written communication to the regulatory authority. According to him the qualitative and quantitative aspects of the chart was looked into by the Commission, which lead to an irresistible conclusion that there was breach of terms and conditions of agreement by the petitioners operators and it passed an order on 22 October 2016. The supply of POI was minimal and it increased only after the order of TRAI and according to him the Commission has to look into the conspectus of matters with a view point of consumer and thus there is no perversity in the order passed by the Commission. According to him though the Commission was not a duty bound to call the opposite party for hearing and afford them an opportunity or look into the material, the Commission has looked into the material and arrived at a conclusion since there was sufficient material to order an investigation in exercise of powers under section 26(1). According to him in exercise of powers under Article 226 this court would not substitute the....
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....necessitated for RJIL since it was using a unique technology in the form of LTE data and office video messaging (OVM) and it wanted to test a new category of device that supported its VVITE technology and therefore there were no definite benchmarks to follow the requirement of testing. According to RJIL, it was deploying cutting edge technology on an unprecedented scale, which would have effect of making high-speed voice and data access available to customer across the country at prices that were a fraction of those offered by competitors and in this background they demanded the POI based on its forecast from time to time which was not timely provided. 83. Shri. Sathe also contended that the Commission was duty bound to find whether there was any agreement in any form whatsoever which was likely to cause an appreciable adverse effect on competition and the complaint of RJIL made to the Commission was that the ITOS with the COAI had entered into such agreement into which had appreciable adverse effect on the competition under Section 3 and formed the prima facie opinion under Section 26(1) and has not adjudicated in any manner. According to the learned Senior Counsel, if the argu....
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....have refused to provide such POIs and thereby attempted to stop the entry of RJIL into the market when RJIL was ready to arrange for all the expenses. As regards the test phase argument of the Counsel for the petitioners, learned Senior Counsel responded that it was the choice of the TSP to load his network with testers to test the load factor and when he had 22 million subscribers on 21st June, 2017, it was approximately one lakh testors for each State. Moresoever, according to him, the petitioners did not make any grievance with RJIL in respect of test period. Shri Ramji Shrinivasan has bifurcated the period schedule involved in the matter into four periods, first period being from December, 2015 to 21 June 2016, second period from the date of demand on 21 June 2016 till 1 September 2016 i.e. the date of prelaunch, between 1 September 2016 to 8 November 2016 when RJIL had commercially launched and a period 8 November 2016 i.e. after completion of RJIL to the Commission. He took us through various communications extended between the parties during the aforesaid period to demonstrate that the whole attempt of the petitioners was to stifle the competition by RJIL. 84. Shri Amit S....
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....lve its own procedure. (3)(4) .... (5) In consonance with the settled principles of administrative jurisprudence, the Commission is expected to record at least some reason even while forming a prima facie view. However, while passing directions and orders dealing with the rights of the parties in its adjudicatory and determinative capacity, it is required of the Commission to pass speaking orders, upon due application of mind, responding to all the contentions raised before it by the rival parties." 87. Now, let us examine what kind of function the Commission is called upon to discharge while forming an opinion under Section 26(1) of the Act. At the face of it, this is an inquisitorial and regulatory power. A Constitution Bench of this Court in the case of Krishna Swami v. Union of India (1992) 4 SCC 605 explained the expression 'inquisitorial'. The Court held that the investigating power granted to the administrative agencies normally is inquisitorial in nature. The scope of such investigation has to be examined with reference to the statutory powers. In that case the Court found that the proceedings, before the High Power Judicial Committe....
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....committed; (b) it is necessary to issue order of restraint and (c) from the record before the Commission, there is every likelihood that the party to the lis would suffer irreparable and irretrievable damage, or there is definite apprehension that it would have adverse effect on competition in the market." This Judgment has been followed in following other cases. (a) Kingfisher Airlines (Supra)- "24. ......There could therefore be no impediment in taking any action under the new Act. Even otherwise, the provisions of the M.R.T.P. Act and the Competition Act are not identical. Since no action whatsoever is taken or proposed to be taken by the M.R.T.P. Commission, there could be no question of the petitioners being subjected to double jeopardy. Further, the M.R.T.P. Commission now stands abolished w.e.f. 14th October, 2009. There is, therefore, no question of M.R.T. P. Commission now taking any action against the petitioners. This ground of challenge has no substance at all. (b) Chettinad International Coal (Supra):- "35. ....This Court refrains from entering into the factual controversy, as the entire issue is at a preliminary stage before the ....
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....nable person could ever have arrived at such conclusion; g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i) the finding of fact is based on no evidence. The case in hand falls within the ambit of above clauses itself. Therefore, a case for judicial review. 88. The following Judgments of Supreme Court on interpretation of Competition Act required no discussion as it is settled position of law, but we have to consider the facts and circumstances of the case in hand. (a) Excel Crop Care Limited (Supra) "45. ... ......... Even when the CCI forms prima facie opinion on receipt of a complaint which is recorded in the order passed Under Section 26(1) of the Act and directs the DG to conduct the investigation, at the said initial stage, it cannot foresee and predict whether any violation of the Act would be found upon investigation and what would be the nature of the violation revealed through investigation. If the investigation process is to be restricted in the manner projected by the Appellan....
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....ed by the Commission after considering the compilation of documents, charts, filed by the rival parties, the Commission has called the parties for the conferences by exercising its discretion and permitted the counsel to explain the respective charts/case. Such impugned order cannot be treated and/or termed as "administrative order" and/or direction as observed in SAIL (Supra). The principle and interpretation given by the Supreme Court and other High Courts needs no discussion. But at the same time the High Court, under Article 226 of the Constitution of India and/or even otherwise, is required to consider the rival contentions so raised, based upon the records and the law. It is settled that the validity of administrative order is required to be judged by the reasons mentioned therein, and it cannot be supplemented by the additional reasons, through the affidavit and oral and written submissions, in subsequent proceedings. In T.P. Senkumar, IPS Vs. Union of India & Ors. (2017) 6 SCC 801 the Apex Court, though in service matter, has considered the nature of "administrative order", as under:- 80. In this context the following passages from M.A. Rasheed Vs. State of Kerala ....
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..... Gordhandas Bhanji AIR 1952 SC 16, in which it was said:- "9 ...... Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. This view was affirmed by the Constitution Bench of this Court in Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405." "94. The subjective satisfaction of the State Government must be based on some credible material, which this Court might not analyze but which can certainly be looked into. Having looked into the record placed before us we find that there is no material adverse to the interests of the Appellant except an expression of opinion and views formed, as far as he is concerned, as late as on 26-5-2016. This make-believe prima facie satisfaction by itself cannot take out judicial re....
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....templated followed by the final order of compensation under the Competition Act. Territorial Jurisdiction- 96. The preliminary objection raised that the Petition is not entertainable/maintainable in this High Court of Judicature at Bombay, is also devoid of any merit. There is no issue and/or denial to the facts that the part of cause of action arose in Mumbai and/or the State of Maharashtra. The parties have placed material on record including the affidavits and the averments so made in the Petition, which supports the fact that the part cause of action arose in Maharashtra, including in Mumbai. The relevant averments in this regard of the respective Petitioners, in the Petitions are read and referred by the Senior Counsel. 97. The substantial client/consumer base is in State of Maharashtra. The Respondents/service providers Officers' are at Mumbai. The affidavits and averments and the documents so placed on record, show that the various correspondences/the documents have been exchanged by and between the parties, within the jurisdiction of Maharashtra State including Mumbai. Both the parties have substantially argued the matter by referring to the affidavit and the d....
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...., as submitted by the counsel appearing for the Respondents Jio and CCI. This impugned majority order, in fact, has decided several issues and elements though stated to be in prima facie nature, ultimately entail into the DG to inquire and investigate with clear adverse consequences, so recorded revolving around the Competition Act, by overlooking the provisions of TRAI Act/Contracts, between parties. Power and jurisdiction under the TRAI Act and the Competition Act:- 101. The information is filed based upon the averments around the various breaches committed by the Petitioners-service providers under the agreement by not providing timely POI, though demanded from time to time, that as stated resulted into failure of calls of Jio/consumers. The stated deliberate "delay", "denial" had resulted into "congestion", as alleged, was with collusive attempt to thwart the launch and/or entry of Respondent-RJIL into the telecom market. This alleged action in concert falls within the ambit of Sections 3 and 4 of the Competition Act. These averments itself make position clear that the parties have entered into the various agreements/contracts, as required under the TRAI Act. Thus, the ag....
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....r to distributors during test period, is understandable situation. If party or person, service providers, having business understanding in the market, willing to provide as and when demanded the IPOs of any numbers, the Court and/or third person will not be in a position to interfere with it. The parties can sit and settle even such disputes at any point of time. But when the controversy is raised, considering the facts and circumstances, the authority/Tribunal and/or the Court is required to decide it in accordance with law of the market. The Association role, in view of uncleared position in the market or vagueness about the rights and obligations, in such situation, is important. We are considering the power and jurisdiction of the respective statutory authorities under the respective Acts. 103. The Competition Act, in view of the scheme so elaborated in earlier paragraphs, empowered the Commission and/or authorities to exercise functions of prohibitive and constructive in nature. It is vested with inquisitorial investigation, regulatory and adjudicatory and as stated some extent advisory jurisdiction. The Competition Act is entertained to ensure fair competition in India by ....
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....er the prescribed contract terms and under the supervision of the authorities under the TRAI Act. Therefore, if any dispute and/or issue and/or any question of interpretation arises in respect of any terms and conditions and/or policy decision and/or of any rights and obligations of the respective service providers, it is the authorities under the TRAI Act, which is specifically empowered to deal and decide the same. The Government and the concerned department, in the interest of development of such market, keeping in mind the technology and need, made it compulsory for every service providers to work and run their respective telecom business in the concern market within the framework of guided principles. The TRAI Act, Section 11(1)(a)(b), empowers to make recommendation on the specified subjects so provided. The same is recommendatory and has no binding effect on the Central Government being executive power/decision. But, this by itself, is no reason for other authorities, like the Commission under the Competition Act, to treat the same, as final and binding. Admittedly, the recommendation is under challenge and the matters are pending in the High Court. The informant, in fact ha....
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....d letters dated 11 July 2016, in response to the show cause notice, still required final adjudication. The recommendation also could not have been used as a material evidence and/or the settled position of controversy arising out of the agreements. The dissent note expressly observed that the recommendation cannot be relied upon. Though subsequently, the TRAI has reiterated its recommendation, but the DOT- the licensor, has not yet acted upon it. The fact of the pending challenge in the high Court against the order recommendations also is relevant factor in favour of the Petitioners' submission. The submission that the TRAI, in any way, cannot determine the service providers' collusion and cartelisation, is wrong approach, unless the contractual terms of ICAs and respective rights and obligations are finalized. Definitely, the Commission has no jurisdiction to decide it. It is therefore, clear that the majority decision has wrongly relied upon the recommendations and proceeded upon it. The reliance of recommendation was impermissible to initiate the inquiry. In any way, the impugned order/decision cannot be explained by additional reasons and/or by the oral submission, duri....
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....tioned anywhere in the agreement clauses and/or not even recorded in the majority decision. 108. DOT circular dated 29 August 2005 provides that "test service card" can be given to the business partners or employees. The circular clarifies that the test/service cards and cards given to the employees are to be deducted in order to arrive at "subscriber" of the TSP. The test user, therefore, cannot be treated as subscriber. The majority view no way dealt with and decided the said important issue and has not even made any observation, rightly so, for want of jurisdiction in itself. It is clear from the explanation to the said circular that this test/service cards are required to be given free of costs to business partners including the operator to check the quality of service from time to time, so is the position that of the cards given to the employees, on which no revenue is generated. These persons, therefore, are test trial users during this test period and cannot be treated as "subscriber". Whether this circular and/or the clauses revolving around the same covered the case and situation of test phase or period is itself another issue which the Commission even after collecting ....
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....s are of administrative nature and decides no legal rights and effects, is unacceptable in the facts and circumstances of the case. 110. We are not inclined to accept the situation that both the Authorities, under the respective Acts to continue the proceeding and after final decision by the TRAI Authority, the Commission will pass final order under the Competition Act. The Commission ought not to have proceeded with inquiry in view of pendency of the litigation in High Court, arising out of the same terms and conditions and rights and obligations of the service providers from same agreements. 111. The collection of information, pending legal issues before the Competent Authority in advance, is impermissible and unjustifiable. It definitely, cause injustice, and affect the rights of reputation, name and fame in the market. 112. As scope and challenge is limited, we are not dealing the merits of the matters, arising out of it. But definitely, considering the scope and object of the Competition Act and the power of Authorities, keeping in mind the telecom sector markets, governing law and the government policy. The Judgments so cited by the Respondents/CCIA/RJIL, are disting....
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..... Section 14 of the TRAI Act, as defined the jurisdiction of Telecom Dispute Settlement and Appellate Tribunal "TDSAT", by excluding the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) Tata Teleservice (Supra), the Consumer Protection Act. There is no issue that under the TRAI Act, as per the provisions of the Competition Act, related orders/actions/compensation cannot be awarded. There is no question of conflict of laws, in view of above position. The Judgment of Telefonakiebolaget LM Ericsson (PUBL) (Supra) para 168 and 175 are of no assistance. Above all, the supporting submissions so read/made by the learned counsel appearing for the Respondents, including CCI, not dealt and decided and/or even touched by the CCI in the impugned majority order. It is settled that the authorities cannot act and/or substitute the reasons, through their submissions and/or affidavit for the first time while defending such orders. The law is settled in this regard. 116. Once the aspect of jurisdiction goes to the root of the matter, non-challenge of earlier decision in other matters that itself, no way, empower the Commission to have a jurisdiction to deal with the controversy in ....
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....tled in this regard (T.P. Senkumar, IPS (Supra). We are dealing with, as contended, the majority decision. There was no specific challenge raised by the Respondents to the decision given by the minority members of the Commission. The other Respondents, therefore, cannot be permitted to challenge in argument, for the first time, the minority decision. The majority decision for the reasons so recorded in the Judgment, is without jurisdiction. The majority decision/action/order is liable to be quashed and set aside, being perverse. [Atlas Cycle Haryana Limited (Supra)]. The Supreme Court has reiterated the position that a finding, by overlooking the material on record would amounts to perversity and in Writ jurisdiction it can be interfered with. [Achutananda Baidya (Supra)]. 118. The Co-operation and co-ordination if volunteered by one provider to other, irrespective of such demand, and if both the parties act accordingly with adjustment and settlement, there is no issue which is required to be considered by the Authorities under both the Acts. However, when the issues are raised and created because of a new practice and in absence of precedent, it required to be settled by the co....
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....he RJIL and other service providers was one sided due to its free services. The Reliance's free services/offer during the test phase period in huge number, was the issue in the telecom market, since it was unprecedented. The commercial innovation of one service provider, based upon the new technology is always welcome, but, it is also depend upon the others' connectivity and/or interconnection and the concerned authorities are required to deal and facilitate the solution for all. There was admittedly no agreed specific clause and/or provisions and/or agreement entered into by and between the service providers, in question. The confused/gray area is required to be dealt with and handled by such Association, in representative capacity. Therefore, any representation made in this background commenting upon huge "Free Service/cards" not only to the employees and/or close relatives, but to the millions new potential consumers in test phase period, who were not prescribed "Subscribers" cannot be treated as an attempt to thwart the progress of new Entrant. The co-ordination and co-operation and the guidance are needed, as it has direct bearing on the interconnection and/or interlin....
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....lure to provide "unreasonable demands" and/or the "reasonable demands", for want of conditions in the respective licenses (Unified licenses) and the clarification sought, in no way, can be stated to be with intent to stifle the launching by RJIL. Some Petitioners/service providers have shown the charts to demonstrate that from time to time they had supplied the sufficient POIs, keeping in mind the terms of the contract to provide "reasonable POIs on demand". 122. The unreasonable demand, if objected and clarification sought from the Department/Government through the Association, in no way can be stated to be in breach of any provisions. RJIL information itself has shown there existed doubt and the issue revolving around the respective rights and obligations of the parties inter se. The recommendation was based upon the complaint/representation. Strikingly, as recorded and conceded that on 31 August 2016, RJIL has "nil subscribers". Nothing is pointed out either in form of any practice, obligation and/or circulars and/or regulations, to provide such huge demand of POIs, in the "test phase". The issuance of consultation paper by TRAI on this controversy of POIs during the test pha....
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....ble and also premature. "Cartelisation" 124. The concept of "cartelisation" is not new in any national or international, and/or commercial transaction and the market. The concept of "cartel" and "agreement" are defined under the Competition Act. There is no direct and/or written agreement on record to justify such impugned agreement/cartel. The Authorities are required to consider the facts and circumstances and such allegations, based upon the supporting material and the documents. The Apex Court in Competition Commission of India Vs. Coordination Committee of Artistes and Technicians of West Bengal Film and Television & Ors.(Supra) has considered the aspects of stated cartelisation, though based upon the facts and circumstances of the given case. All in all, the Authorities are required to consider the facts and circumstances of the case and the stated agreements by and between the parties. The individual member and/or majority members and/or through Association attempted to control and/or thwart the progress of new entry is again a matter of evidence. Every majority decision of any Association cannot be treated and/or declared as cartelisation. The presumption of cartelisa....
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....sary satisfaction, then, in exercise of such powers is subject to the judicial review. 127. Therefore, taking overall view of the matter, we are also of the view that the rights and obligations to provide POIs arise under the terms of the license, granted by the DOT and the terms of supply are governed by the interconnection agreements entered into by service providers with each other. It is relevant to note that the consultation paper of TRAI on these issues, further reiterates the fact of confusion and the controversy so agitated by the service providers and the COAI. Such grievances are genuine and bonafide. Therefore, no case is made out of any cartelisation by and through the COAI. The Parties material and/or suppression of material facts and/or incorrect information. 128. We have gone through the material placed on record. The controversy regarding denial/delay of POIs and/or correctness and/or suppression of facts and/or information and/or non-consideration of material information in the majority decision on merits, though we have heard substantially, as submitted by the parties to consider the bundle of facts, as necessary to decide the case in hand, but considerin....
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....mpugned majority decision. The order of Commission cannot be explained/clarified in such manner. The Commission should speak through its order and initiate the proceedings if case is made out to collect the stated facts and information. It is unacceptable to permit the Commission to collect the facts and/or information when it has not itself concluded the controversy about the rights and obligations of the parties based upon statutory agreements/regulatory authority's guidance/circulars. The stated conduct and/or cartel could not have been tested or inquired into unless their rights and obligations based upon the governing laws in the market are clear and settled, as the same binds all the respective service providers of the telecom sectors. 130. conclusions- a) All the Writ Petitions are maintainable and entertainable. This Court has territorial jurisdiction to deal and decide the challenges so raised against impugned order (majority decision) 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/....
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....be regulated and controlled by the concerned Department/Government, based upon the policy so declared from time to time, keeping in mind the need and the technology, under the TRAI Act. h) 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 and all the consequential actions/notices of the Director General under Section 41 of the Competition Act proceeded on wrong presumption of law and usurpation of jurisdiction, unless the contract agreements, terms and clauses and/or the related issues are settled by the Authority under the TRAI Act, there is no question to initiating any proceedings under the Competition Act as contracts/agreements go to the root of the alleged controversy, even under the Competition Act. i) The Authority like the Commission and/or Director General, has no power to deal and decide the stated breaches including of "delay", "denial", and "congestion" of POIs unless settled finally by the Authorities/TDSAT under the TRAI Act. Therefore, there is no question to initiate any inquiry and investigations under Section 26(1) of the Competition Act. It ....