TaxTMI 
TaxTMI 
2015 (2) TMI 1410
X X X X Extracts X X X X
X X X X Extracts X X X X
....he appellant and Indian Premier League (IPL) in more than one ways. The Commission considered the averments contained in the information and passed an order dated 09.12.2010 under Section 26(1) of the Act, paragraphs 4 to 16 of which read as under: "4. Informant alleged that the IPL was involved in the process of granting franchisee rights to the previous 8 teams and later for two teams of Pune and Kocchi. As per the media reports there as an agreement between the IPL and the bidders and they advised bidders regarding amount of bid for a particular team. This is bid rigging prohibited under section 3(3) of the Act. 5. As per the media the Chief of the IPL was also instrumental in favouring his near and dear for the bid and his favoured ones worked as his proxy for cornering the proceeds. Support provided by the official of the IPL significantly distorts competition in the relevant market. 6. It is also alleged that the IPL conducted bids for the television rights, website, sponsorship, catering services, transportation, event management etc. without adhering to the norms of fair tendering and restricting the market for the new entrants and foreclosing the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Informant on the basis of media reports, there has been violation of free and fair bidding process for the franchisee of the teams, providing television rights, mobile rights, internet rights, catering services, event management, sponsorship, sporting goods and equipments, transportation, ticketing etc. 15. Through the present information it appears that IPL has commercial conflict of interest concerning organization and regulation of twenty 20 cricket events. Such situation led to undermining competition in the relevant market. 16. After giving thoughtful to the facts and circumstances of the matter and examining the entire material on record, the Commission considers that there is fair possibility that competition in the relevant market of various/ancillary products have been restricted. As the Competition Act mandates the Commission to prevent practices having adverse effect on competition and to promote and sustain competition in the market, commission is of the opinion that there exists a prima facie case of violation of the Competition Act, and directs Director General (DG) to investigate and submit its report within 60 days of the receipt of the order." ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....elf has conceded that the bid rigging or collusive bidding has taken place. The BCCI cannot distance or shirk its responsibility on the basis that for any fraudulent action of Mr. Modi the BCCI cannot be held responsible. On the contrary, the responsibility lied with the BCCI only as all the tenders and agreements have been floated or entered into under the name and authority of the BCCI and deemed to have been in the knowledge of everybody. Any other party will only recognize the BCCI and none else. Therefore for any competition issue having appreciable adverse affect, in the arena of cricket game in India, the responsible party will be BCCI only. 12.7 On perusal of the documents submitted by BCCI and other relevant parties, the contentions of which are more elaborately discussed in Chapter-9 of this report, it clearly transpires that the franchise for tea, has been given till the IPL tournament continues, which is perpetual in nature. Therefore the agreement so made will have the effect infinitum, until and unless a breach of contract takes place which is to take care of any eventuality and is generally a part of any agreement. It clearly indicates that no other team or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owever in order to allow to form the consortium, the bid of consortium was accepted on 14.1.08, which was the date of opening the tender. This way, by abusing its dominant position the BCCI has not only provided benefits to them but also foreclosed the market for others. Subsequently, being in its dominant position, the contracts were terminated and again entered with the same parties or other related parties. Consequently, after termination of the initial agreements, no further process of tendering was resorted. It has denied any other eligible party of their right to bid and obtain the tender and hence having adverse effect on competition as market was not made open for bidding. The period of contract was for a period of 10 years which clearly reflects that no other party could bid for further 10 years and the access to market is restricted. Further, the terms of the agreement are such that the parties were made to sign on the dotted lines, as the BCCI is in the position of monopoly to provide such rights, having the position of strength. The media rights were terminated abruptly by the BCCI without any plausible cause after one year and re-entered again. This act of BCCI-IPL is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... looking to the infinitum tenure of the franchisee agreements and other features thereof, the BCCI has abused its dominant position in the relevant market having appreciable adverse effect on competition. Such action of BCCI establishes the foreclosure of market and creation of entry barriers. Further, abusing its dominant position the BCCI entered into the agreements with the franchisee on its own terms and conditions which has restricted the market for others and hence having adverse appreciable effect on competition within the meaning of provisions of section 4(2) of the Act. (b) As far as the media rights are concerned, looking to the conduct of BCCI-IPL with respect to the various awards of media rights where neither fair nor transparent tendering process has been adopted and the media rights were given for fairly long period of 10 years. This has created adverse appreciable effect on competition where unfair or discriminatory conditions were imposed and the market has been limited and restricted for other eligible contenders by abusing its dominant position within the meaning of provisions of section 4(2) of the Act. (c) Regarding other rights neither any du....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty order reads as under: "The Commission finds BCCI guilty of contravention of Section 4(2)(c) of the Act. In view of the above and in exercise of powers under Section 27 of the Act, the Commission directs BCCI:- i) to cease and desist from any practice in future denying market access to potential competitors, including inclusion of similar clauses in any agreement in future. ii) to cease and desist from using its regulatory powers in any way in the process of considering and deciding on any matters relating to its commercial activities. To ensure this, BCCI will set up an effective internal control system to its own satisfaction, in good faith and after due diligence. iii) To delete the violative clause 9.1(c)(i) in the Media Rights Agreement. iv) The Commission considers that the abuse by BCCI was of a grave nature and the quantum of penalty that needs to be levied should be commensurate with the gravity of the violation. The Commission has to keep in mind the nature of barriers created and whether such barriers can be surmounted by the competitors and the type of hindrances by the dominant enterprise against entry of competitors into ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....7. The penalty imposed by the Commission was also stayed subject to the condition that the appellant shall deposit 25% thereof within one month. After service of the notice, the case was adjourned from time to time. On 11.08.2014, the Tribunal passed the following order: "Inspite of the repeated opportunities given, there is no written denial to the allegations made at page - 62 of the appeal which are very vital. The learned counsel seeks seven days' time for providing that denial in writing. List this matter on 19th August, 2014." 7. On the next effective date of hearing i.e. 27th October, 2014, the counsel representing the Commission again sought adjournment to enable the Secretary of the Commission to file written response. His request was accepted. Thereafter, Smt. Smita Jhingran, Secretary of the Commission filed affidavit dated 29.10.2014, paragraphs 4 to 19 of which read as under: 4. Clause 9.1(c)(i) of the Media Rights Agreement is part of an agreement which was filed by the appellant itself. The appellant was fully conscious of the scope of the proceedings which was the abuse of dominance by BCCI in organization of IPL matches. 5. The Dep....
X X X X Extracts X X X X
X X X X Extracts X X X X
....which may or has distorted the competition in any relevant market appreciably foreclosing competition for any new competitor or from fairly competing in the market through restrictions in the output or dividing the market. xxx xxx xxx 15. Through the present information it appears that IPL has commercial conflict of interest concerning organization and regulation of twenty 20 cricket events. Such situation led to undermining competition in the relevant market. (emphasis supplied) 8. The DG having recognized the broader market of IPL considered the economic activities ancillary for organizing the IPL twenty 20. The relevant extracts of the DG report are given below:- 7.6 Therefore to the information available on record, it may be seen that the concern is for the underlying economic activities which are ancillary for organizing IPL Twnety-20 cricket tournament. The rights for such activities has been held by the BCCI because of its paramount position as sole controlling agency for any form of recognized cricket in India, which also includes the cricket in IPL Twenty-20 format. In other words, for organizing IPL tournaments [which is the area of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... ICL were not in contravention of the Competition Act. In particular, it was stated, "The DG in its report has stated that the BCCI precluded its players from participating in ICL. In this regard, it is submitted that several organizations and institutions (like the BCCI) impose restrictions on their members from engaging in outside activities which may adversely affect their performance in relation to their country and their primary organization. Any commitment by the cricket players to the ICL matches could lead to potential conflict with their prior commitments to the BCCI to play the international matches for the Indian cricket team scheduled to take place during the ICL season, given that is the BCCI is under an obligation to the ICC to honor its commitment, on behalf of the cricket player. Any default by the Indian cricket player(s) in meeting the international commitments which typically get decided at least two years in advance could severally jeopardize the Indian cricketing community's interest and comity. It may be noted that the Indian cricket team does not have any international cricket commitments during the IPL season. Accordingly the restrictions, if any, allege....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re may be in a position of strength with respect to organize and holding a series of IPL T-20 cricket matches, this does not constitute the relevant market from a competition law and policy viewpoint. Moreover, even if the DG-I's market's definition is accepted in and of itself BCCI/IPL's position does not constitute 'abuse' of dominant position (Para 22, Para 729-730/V. 3) (iii) Quarterly Journal of Economics - Walter C. Neale: * A detailed article was submitted in the Quarterly Journal of Economics wherein it was sought to be highlighted that sporting business is by nature a monopoly (Pg. 804/V. 3). * League sports were identified as an indivisible product. (Pg. 804-805/V. 3). Sporting firms sell an indivisible product. Once divided it is no product at all. * League sports were identified as an indivisible product. (Pg. 804-805/V3). Sporting firms sell an indivisible product. Once divided it is no product at all. (Pg. 807/V3). * Example was given of a professional Baseball team which produces a complex product or in common parlance several inter-related streams of utility. (Pg. 805/V3). * It was sought to b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....being carried under the aegis of BCCI". There is as such no difference between the relevant market as identified by DG or the relevant market identified by the Commission. The Commission while identifying the relevant product market has noted the following: "8.37 The price of cricket event be it the price of tickets for the live audience or the prices for advertisement slots for broadcasts also points to a truly distinct market. The uniqueness of cricket events from the view point of the stakeholders as well as the ultimate viewers is reflected in revenues associated with sport vis-a-vis other sports/entertainment forms and viewership data analysis. These are discussed at length in the section related to media rights market. 8.38 After concluding that cricket is not substitutable with other sports or other entertainment events, the Commission considers it necessary to examine whether there are inherent difference between the two broad categories of events also viz. First Class/International events and Private Professional League Cricket event as noted in review of sports sector above which merit examination for determination of relevant market. The important funda....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the appellants did not address arguments on the issue of organization of IPL being comprehensively considered as a relevant market. 18. In a recent judgment dated 05.09.2014 in The National Stock Exchange of India Ltd. v. Competition Commission of India, this Hon'ble Tribunal did not find fault with the Commission determining a different relevant market from that of the Director General. However, the Tribunal agreed with the identification of relevant market as determined by DG on the basis of facts of the case. The relevant observations are quoted below: "The D.G. while considering the relevant market came to the conclusion that the stock exchange business as a whole constituted the relevant market....... We must at this juncture point out that before holding the CD market to be the relevant market, the CCI separately considered the various aspects of equity market, F & O market and WDM market. ...... We do not have to wait for the actual foreclosure to happen, even if there is any possibility of the competition being affected that is sufficient for the purpose of Section 4(2)." 19. It is further stated that the dispute relating to clause 9....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the Commission, in its affidavit, has deliberately reproduced only such paragraphs (from the order of the Commission under Section 26 of the Act ("Prima Facie Order") that are in its favour, in order to establish that the scope of inquiry related to the organization and regulation of twenty-20 cricekt events, as a whole. 7. As is evident from the Prima Facie order, the scope of the inquiry and investigation was limited to grant of various rights associated with Indian Premiere League ("IPL"), i.e., including grant of franchise rights, media rights, web portal rights, sponsorship rights and Relevant extracts of the Prima Facie Order are reproduced hereinbelow for ready reference: "14. As alleged by the Informant on the basis of media reports, there has been violation of free and free bidding process for the franchisee of the teams, providing television rights, Mobile rights, Internet rights, catering services. Event management, sponsorships, sporting goods and equipments, transportation, ticketing, etc. 16. After giving thoughtful consideration to the facts and circumstances of the matter and examining the entire material on record, the Commission consi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....upon by the Commission and was therefore not provided an opportunity to effectively defend itself, in this regard. 13. Further, the issues identified by the DG in his Report (reproduced hereinbelow for ready reference) are as follows: "3.3 Hence, the issues for investigation, broadly, would be to find out:- (a) Whether the Opposite Party is in dominant position to decide about the underlying economic activity which are ancillary for organizing the IPL twenty-20 cricket tournament such as media rights, television rights, mobile, internet rights, catering services, event management, sponsorship, sporting goods, transportation and ticketing etc.. If it is so, whether there was abuse of dominant position by the Opposite Party as per the provisions of Section 4 of the Act. (b) Whether the provisions of the Act were violated in the process of tendering/awarding contract for granting the franchisee rights for various IPL teams; (c) In case the process was not transparent or fair in respect of tendering/awarding contract as mentioned hereinabove, whether such processes causes an appreciable adverse effect on competition, by creating barriers to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... go beyond the scope of what has been identified by the DG (as detailed in paragraph 13 above). 21. Further, it is submitted that the Commission wrongly concluded that the dispute relating to the Impugned Clause is a "question of interpretation" and can be decided even at the appellate stage. It is submitted that the Commission has found the Appellant to be guilty solely on the basis of the Impugned Clause. 22. That the documents relied on by the Commission in paragraph 8.35 of the Majority Order was not disputed by the Appellant is incorrect and bereft of any substance. As stated above, these documents neither formed part of the DG Report nor were put to the Appellant. These documents were cited for the first time in the Majority Order and therefore the Appellant did not have any opportunity to dispute the same at any stage prior to the appellate stage." 9. Although the appellant has challenged the impugned order on several grounds, Shri A. Sundaram, learned senior counsel appearing on his behalf argued that the same is liable to be set aside only on the ground of violation of the principles of natural justice. He submitted that while the Director General had ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of the point argued by learned counsel for parties read as under: 19. Inquiry into certain agreements and dominant position of enterprise.--(1) The Commission may inquire into any alleged contravention of the provisions contained in sub-section (1) of section 3 or sub-section (1) of section 4 either on its own motion or on-- (a) [receipt of any information, in such manner and] accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association; or (b) a reference made to it by the Central Government or a State Government or a statutory authority. (2) to (7) xxx xxx xxx 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 its own knowledge or information received under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director-General to cause an investigation to be made in to the matter: Provided that if the subject-matter of an information received is, in the opinion of the Commission, substantially the same as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h 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 the Act. 27. Orders by Commission after inquiry into agreements or abuse of dominant position.-- Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:-- (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be; (b) impose such penalty, as it may deem fit which shall be not more than ten per cent of the average of the turnover for the last three preceding financial years, upon each of such pers....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h have been filed either along with the said information or reference or at the time of preliminary conference, to the Director-General. (2) The Commission shall direct the Director-General to submit a report within such time [as may be specified by the Commission which ordinarily shall not exceed sixty days from the date of receipt of the directions of the Commission]. (3) The Commission may, on an application made by the Director-General [giving sufficient reasons,] extend the time for submission of the respondent [by such period as it may consider reasonable]. (4) The report of the Director-General shall contain his findings on each of the allegations made in the information or reference, as the case may be, together with all evidences or documents or statements or analyses collected during the investigation: [Provided that when considered necessary, the Director General may, for maintaining confidentiality, submit his report in two parts. One of the parts shall contain the documents to which access to the parties may be accorded and another part shall contain confidential and commercially sensitive information and documents to which access ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....horized by the Commission justifying the production of specified books or other documents, as may be required to make further inquiries under sub-regulation (4), the Commission may direct any person to produce such specified books or other documents relating to any trade carried out by such person or enterprise, as per the provisions of sub - section (4) of section 36 of the Act. Explanation. - For the purpose of this sub-regulation, the word "officer" shall include the experts and professionals mentioned under sub-section (3) of section 17 or sub-section (3) of section 17 or sub-section (3) of section 36 of the Act. (6) On receipt of the report of the Director-General on further investigation or report of the authorized officer on further inquiries, as the case may be, the Secretary shall [with the approval of the Chairperson, fix the meeting of the Commission within seven days for consideration thereof]. (7) If the report of the Director-General mentioned under sub-regulation (1) finds contravention of any of the provisions of the Act, the Secretary shall obtain the orders of the Commission for inviting objections or suggestions from the Central Governm....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... before the Tribunal. Even if it is a direction under any of the provisions and not a decision, conclusion or order passed on merits by the Commission, it is expected that the same would be supported by some reasoning. At the stage of forming a prima facie view, as required under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General. Such view should be recorded with reference to the information furnished to the Commission. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the Commission under the various provisions of the Act, as afore-referred. However, other decisions and orders, which are not directions simpliciter and determining the rights of the parties, should be well reasoned analyzing and deciding the rival contentions raised before the Commission by the parties. In other words, the Commission is expected to express prima facie view in terms of Section 26(1) of the Act, without entering into any adjudicatory....
X X X X Extracts X X X X
X X X X Extracts X X X X
....there is no contravention of Sections 3 or 4 of the Act. The Commission can close the case if, after considering the objections or suggestions, it agrees with the recommendations of the Director General. If the Commission is not satisfied with the report of the Director General and forms an opinion that further investigation is called for then it can direct the Director General to make such investigation or cause further inquiry into the matter through an authorized officer or itself hold enquiry [Section 26(7) read with Regulation 21(4)]. If the report of the Director General discloses contravention of provisions of the Act and the Commission opines that further inquiry is called for then it shall hold inquiry into such contravention. In such an eventuality, the Commission is required to give notice to the Central Government or the State Government or the statutory authority or the parties concerned [Section 26(8) read with Regulation 21(8)] and invite their objections or suggestions. Not only this, the Secretary of the Commission is obliged to inform the Director General about the dates fixed for the meetings of the Commission, so as to enable him to appear in person or through a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nstable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse. But, even if it could, the respondents would, in my view, fail on the facts. It may well be that no reasonable body of men could have reinstated the appellant. But as between the other two courses open to the watch committee the case is not so clear. Certainly on the facts, as we know them, the watch committee could reasonably have decided to forfeit the appellant's pension rights, but I could not hold that they would have acted wrongly or wholly unreasonably if they had in the exercise of their discretion decided to take a more lenient course." 18. The judgment in State of Orissa vs. Dr. (Miss) Binapani Dei and others (AIR 1967 SC 1269), contains a lucid exposition of the principles of natural justice and their applicability to what was then thought as purely administrative action. The facts of that case were that the respondent had been retired from service by the State Government by relying upon the date of birth which was unilaterally changed by th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hould not be accepted as the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence." (Emphasis supplied) 19. In Rajesh Kumar vs. CIT ((2007) 2 SCC 181), the Supreme Court made the following observation: "48. In any event, when civil consequences ensue, there is hardly any distinction between an administrative order and a quasi judicial order. There might have been difference of opinions at one point of time, but it is now well-settled that a thin demarcated line between an administrative order and quasi-judicial order now stands obliterated. 55. Justice, as is well known, is not only be done but manifestly seem to be done. If....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o know the ground on the basis whereof he would be penalized. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply." (Emphasis supplied) 21. In Balchandra L. Jharkihoili and others vs. B.S. Yeddyurappa and others ((2011) 7 SCC 1), the Supreme Court set aside an order passed by the Karnataka High Court which had upheld the decision of the Speaker of the Karnataka Assembly to disqualify the appellant. One of the questions considered by the Supreme Court was whether the speaker was duty bound to supply the affidavits filed by the two MLAs, which constituted the foundation of his order. While answering the question in affirmative, the Supreme Court observed: "124. The Speaker apparently did not take into consideration the rule of evidence that a person making an allegation has to prove the same with supporting evidence and the mere fact that the allegation was not denied, did not amount to the same having been proved on account of the silence of the person a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....egations levelled against them. The fact that the Show-Cause notices were issued within the time fixed by the Governor for holding the Trust Vote, may explain service of the Show-Cause notices by affixation at the official residence of the Appellants, though without the documents submitted by Shri Yeddyurappa along with his application, but it is hard to explain as to how the affidavits, affirmed by Shri K.S. Eswarappa, Shri M.P. Renukacharya and Shri Narasimha Nayak, were served on the learned Advocates appearing for the Appellants only on the date of hearing and that too just before the hearing was to commence. Extraneous considerations are writ large on the face of the order of the Speaker and the same has to be set aside." (Emphasis added) 22. In Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and others ((2013) 4 SCC 465), the Supreme Court considered the question whether the caste certificate issued in favour of the appellant could be cancelled without giving him reasonable opportunity of hearing including an opportunity to cross-examine the witnesses examined by the department. After noticing the judgment of the Constitutional Bench judgment in State of M.P. vs. Ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of natural justice." 23. In the light of the propositions laid down in the above noted judgments, I shall now consider whether the impugned order is vitiated due to violation of the principles of natural justice. In paragraph 56 of the appeal, the appellant has raised the following contentions: "Violation of principles of natural justice by the Commission 56. That the Commission has violated the principles of natural justice at various instances while passing the impugned order, as discussed below: 56.1 Denial of fair hearing - That the appellant was not given a fair chance to defend itself as highlighted below:- (i) That the Commission has found the appellant guilty of abusing its dominant position solely on the basis impugned clause. That the said clause was not mentioned in the DG's Report. That nowhere in the DG's Report was the Impugned Clause relied on to establish abuse of dominance by the appellant. That on account of these reasons, no arguments/justification in relation to the Impugned Clause were advanced by the Appellant either in the response or at the time of the oral hearing. That even at the time of hearing, the Commiss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion shows clear bias and preconceived notion against the appellant. That the presence of bias results in violation of the principles of natural justice. That in such cases, the Impugned Order should be declared void. (v) That in Fedco (P) Ltd. v. Bilgrami (AIR 1960 SC 415, paragraph 9), the Hon'ble Supreme Court while dealing with the concept of 'fair hearing' observed that: "There can be no invariable standard for "reasonableness" in such matters except that the Court's conscience must be satisfied, that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non-existent or even if they exist they do not justify the proposed action." (vi) That the appellant has the right to know the evidence being used against it to rebut such evidence. That in Dakeshwari Cotton Mills Ltd. v. CIT, AIR 1955 SC 65 at Para 9, the Hon'ble Supreme Court held that: "In this case we are of the opinion that the tribunal violated certain fundamental rules of justice in reaching its conclusions. Firstly, it did n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he context of the findings recorded by the Director General. If the Commission wanted to differ with the Director General on the issue of 'relevant market' then it should have given notice spelling out its intention to do so and give an opportunity of hearing to the appellant, which was admittedly not done. Therefore, there is no escape from the conclusion that the finding recorded by the Commission that Organization of Private Professional Cricket League/Events in India is the 'relevant market' is vitiated due to violation of the rule of audi alteram partem. 25. Order dated 05.09.2014 passed by the Tribunal in the National Stock Exchange vs. Competition Commission of India on which reliance has been placed in the affidavit of Smt. Jhingran does not have any bearing on this case and the same cannot be treated as laying down a proposition that the Commission can record finding on any particular issue different than the one recorded by the Director General without giving notice and opportunity of hearing to the affected party. 26. I shall now consider the question whether the Commission could rely upon TRPs ratings available at www.indiantelevion.com; the news r....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "The evidence of P.Ws. 8 and 13, however, is alleged to have been corroborated by a news item published in an Urdu daily 'Milap' whose Chief Sub-Editor (PW 5) was examined by the appellant. But the witness far from supporting his case has deposed that he had absolutely no personal knowledge of the Report made by Prashar which was published on 24.5.80. Moreover, it is very difficult for a court to rely on news items published on the information given by correspondents because that may not represent the true state of affairs." 30. The same view was reiterated in Laxmi Raj Shetty v. State of Tamil Nadu ((1988) 3 SCC 319), in the following words: "...We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspapers report cannot be treated as proved of the facts reported therein." "It i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e facts stated therein and cannot be used against the appellant in the absence of any evidence aliunde." 33. In R.P. Luthra v. CBI ((W.P. (Crl.) 1520/2014), the Delhi High Court relied upon the proposition laid down in Laxmi Raj Shetty & Anr. vs. State of Tamil Nadu and observed: "It may be added that even the newspaper reports are held to be only hearsay evidence and not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. In Laxmi Raj Shetty & Anr. v. State of Tamil Nadu, it was categorically held that the Court cannot take judicial notice of the facts stated in a news item published in a newspaper. In our opinion, the same analogy applies to the statements in a blog." 34. In State (NCT of Delhi) v. Navjot Sandhu ((2005) 11 SCC 600), the Supreme Court held that print outs taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. This would make the call records admi....