TaxTMI 
TaxTMI 
2025 (7) TMI 223
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....RI.N.VENKATARAMAN, ASGI ASST.BY SRI.JAISHANKAR V.NAIR, CGC, ADV.MR.RITIN RAI(SR.), ADV.MR.AVINASH AMARNATH, ADV.MR.TARUN DONADI, ADV.MR.UDAY BALI, ADV.MR.NAMAN GOLECHHA, ADV.DAYAAR SINGLA SAJI VARGHESE T.G ARUN THOMAS(K/844/2007) ANIL SEBASTIAN PULICKEL(K/000278/2018) MATHEW NEVIN THOMAS(K/000936/2019) KURIAN ANTONY MATHEW(K/1812/2020) JUDGMENT [ WP ( C ) Nos. 29766 / 2022, 29767 / 2022, 29768 / 2022 ] "TRAI sets the field, CCI calls the fouls" 2. Heard Mr Maninder Singh (Sr), Mr Jaiju Babu (Sr), Mr Santhosh Mathew (Sr), Ms Sneha Jain, Mr Ranjeet Singh Sidhu, Mr Prabhas Bajaj, learned Counsel for the petitioners; Mr N Venkataraman, learned Additional Solicitor General of India assisted by Mr Jaishankar V Nair, learned Central Government Counsel of Competition Commission of India and Mr Ritin Rai (Sr), Mr Avinash Amarnath, Mr Tarun Donadi, Mr Uday Bali, Mr Naman Golechha, Mr.Dayaar Singla, Mr Saji Varghese T G learned Counsel for the respondents. Introduction: 3. The alleged conflict between the scope and jurisdiction of the authorities under the Telecom Regulatory Authority of India (TRAI) Act 1997 and the Competition Commission of India (CCI), a statutory authori....
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...., offering benefits in the form of discounts. Marketing agreements were entered into between the SIPL and the KCCL purporting to advertise the petitioner's channel 'Asianet', which already enjoys huge popularity in Kerala, having four times more viewership than its nearest competing channel. The agreement is only a sham, as these advertisements are being featured by the KCCL on a 'Test' channel at the end of its channel list, which merely shows these advertisements on a 24*7 basis without any real viewership. The SIPL, therefore, has violated Section 4(2)(a)(ii) and Section 4(2)(c) of the Competition Act for offering discriminatory discounts, denying market access to ADNPL, and providing unfair advantage to KCCL. 5.2 ADNPL, which is an MSO, predominantly provides digital TV services in Kerala. It also operates in Karnataka, Andhra Pradesh, Telangana and Odisha. As per the complaint filed before the CCI, the ADNPL had a customer base of 10.02 lakh in Kerala and a minimum of 1.19 lakh customers in all other States combined (as of December 2021). The SIPL and its subsidiaries and group companies, including Disney and Asianet Star, are broadcasters of satellite-based TV channels in ....
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.... payments to KCCL through high-value advertising deals. 6.3 The result of SIPL providing channels to KCCL at a discounted price was that Informant was constrained to price its channels higher than those of KCCL, ultimately losing its consumers, with a corresponding gain to KCCL. The Informant had to offer services at a loss-making price to retain the subscriber base, but in vain. ADNPL's subscriber base fell from 14.5 lakhs in April 2019 to 11.76 lakhs in September 2021, while the subscriber base of KCCL went up from 21.3 lakhs in April 2019 to 29.35 lakhs in September 2021. 6.4 The CCI, therefore, directed the Director General (DG) to cause an investigation to be made into the matter and submit a report within a period of 60 days from the date of receipt of the Order. Writ Petitions before the Bombay High Court : 7. Asianet Star Communications Private Limited, Disney Broadcasting (I) Private Limited, and Star India Private Limited filed W.P.(C) Nos. 3755, 3845 and 3860 of 2022, respectively, before the Bombay High Court, challenging the Order dated 28.02.2022 passed by the Competition Commission of India. 7.1 The Bombay High Court vide Interim Order dated 06.04.2022....
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....f the regulatory framework conceived by the TRAI, any breach of this regulatory framework can be examined only by the TRAI, as the TRAI is the sectoral regulator and would have the exclusive jurisdiction over the subject matter. 9.2 The TRAI Act is a complete Code in itself. The TRAI Act and Regulations framed thereunder regulate broadcasting activities/services in all respects, including competition. The scheme of the TRAI Act includes all measures to be adopted by the TRAI as the Regulator to deal with any anti-competitive activity and maintain and encourage healthy competition in the broadcasting sector. Only one regulator should regulate any particular activity/industry to avoid any confusion, fight for supremacy or dispute over jurisdiction. As broadcasting services are governed by a special law, i.e., TRAI Act, TRAI, being the sectoral regulator, should examine the allegations, and no other Regulator, such as CCI, should entertain the complaint in respect of the alleged noncompliance/violation of the TRAI Act and the Regulations framed thereunder. 9.3 It is further submitted that as the TRAI Act covers all aspects, including competition, and the Competition Act, being t....
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....ion had been covered by the TRAI in its Regulations (registration of agreements). The ADNPL had themselves requested the TRAI for forbearance on placement agreements and other marketing agreements. In fact, they had challenged the stipulation for registration of placement agreements and commercial agreements by the TRAI in its Regulations by filing W.P.(C) No.428/2020 before this Court. 11.1 Therefore, it would not be proper to say that the TRAI would not have jurisdiction to regulate commercial agreements post-interconnection, and only forbearance is being observed by the TRAI, at present. Forbearance would mean that the Regulatory Authority would have jurisdiction, but the issue is being continuously monitored. Section 11(1)(b)(iv) provides for regulating and forbearing the arrangements among service providers, which is an overriding power of the TRAI. The TRAI generally gives freedom to the parties to enter into commercial agreements on their own, and it is in the event of failure that the TRAI exercises its regulatory powers. In the event of interconnections, the TRAI need not extend the commercial freedom to the parties at the threshold and can regulate interconnection from....
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....ions of Section 21A of the Competition Act. To decide the existence or absence of jurisdiction of any authority at the threshold, issuance of notice by the CCI to the parties against whom the Information has been filed is required. In the present case, no notice has been issued, and the CCI ex parte has directed the Director General to conduct the investigation and submit the report and, without issuing notice, decide the issue of jurisdiction. As jurisdiction goes to the root of the matter, without issuing notice and giving a hearing to the petitioner, passing an order for investigation is an exercise in nullity and in violation of the principles of natural justice. Therefore, the impugned order is unsustainable and is liable to be set aside. Asianet Digital Network Private Limited's: 12. Mr Ritin Rai, learned Senior Counsel, assisted by Mr Tarun Donadi, learned Counsel, appearing for the ADNPL, in response to the submissions advanced by Mr Maninder Singh, learned Senior Counsel, has submitted that the ADNPL has submitted information to the CCI about the SIPL's abuse of dominant position and denial of market access to the ADNPL in violation of Sections 4(2)(a)(ii) and 4(2)(c....
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....any civil consequences. At the investigation stage, this Court may not interfere with the matter. Before passing the order under Section 26(1), there is no requirement for notice and hearing. In the present case, even otherwise, the Director General's investigation stands concluded. 12.4 The learned Senior Counsel has placed reliance on the judgment in the case of CCI v. SAIL (2010) 10 SCC 744. In AIDCF v. TRAI (2021) SCC Online Ker 7162, the contention of the AIDCF, another MSO, was that the TRAI would not have jurisdiction vis-à-vis marketing agreements. However, that would not mean that the CCI would not have the jurisdiction to investigate sham marketing agreements entered by the SIPL with the KCCL in abuse of the dominant market position, which has the consequence of denial of market access to the ADNPL. The decision in the AIDCF's case is that TRAI does not exercise forbearance over marketing agreements, as marketing agreements would not fall within TRAI's regulatory regime, and the regulatory regime of TRAI is limited to interconnection. The issue before the CCI is whether the petitioner/SIPL is indulging in unfair/discriminatory conduct by entering into sham m....
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....19(4) of the Act, in respect of the transactions pertaining to the abuse of the dominant position. Therefore, when the allegations are in respect of the abuse of the dominant position by a market player in the relevant field, it is the CCI which will have jurisdiction and not the TRAI, even in respect of the broadcasting and cable services. 13.2 The TRAI, in its regulatory regime and part of its licensing conditions, may impose certain obligations and restrictions on parties to ensure a level playing field and fairness in the market. Any breach of these may certainly invite an action from the TRAI, being a Sectoral Regulator. However, the TRAI would have the jurisdiction for initiating an action on a breach of a licensing condition alone. It could not have jurisdiction in respect of the abuse of the dominant position by a market player in the relevant field. If the petitioner's contentions are accepted, then every transaction involving a Sectoral Regulator would be outside the ambit of inquiry under the Competition Act, even though such a Sectoral Regulator is not vested with the powers to examine the transactions from a Competition Law perspective. The TRAI's action is limited ....
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....rpret any licensing conditions. There are no jurisdictional requirements that need to be ironed out by the TRAI first. 13.7 The learned Additional Solicitor General of India has relied on the judgment of the Delhi High Court in WhatsApp Llc v. Competition Commission of India 2021 SCC OnLine Del 2308, which held that the CCI has the exclusive jurisdiction to examine the matter through the prism of Competition Law. Salient Provisions of the Statutes: The Competition Act 2002: 14. The object of the Competition Act is to establish a Commission to prevent practices having an adverse effect on competition, to promote and sustain competition in markets, to protect the interest of consumers and ensure freedom of trade carried on by the participants in markets in India. The relevant statutory provisions of the Competition Act 2002 are taken note of hereunder: 14.1 Section 2(c) defines "cartel" as an association of producers, sellers, distributors, traders or service providers who, by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or trade in goods or provision of services. 14.2 Section 2(h) defines "enterp....
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....context of anti-competitive agreements under Section 3. It is designed to restrain any infringement of reasonable conditions for protecting any rights under the Copyright Act, Patents Act, Trade and Merchandise Marks Act, etc, may be prescribed in agreement, and such an agreement shall be outside the purview of the anti-competitive agreements as defined in Section 3. 15.2 The anti-competitive agreements entered into in contravention of the provisions shall be void. Section 3 also specifies certain activities which shall be presumed to have an appreciable effect on competition. It specifies certain agreements which shall be in contravention of sub-section (1) of Section 3 if such an agreement causes an appreciable adverse effect on competition. 16. Section 4 prohibits abuse of dominant position by an enterprise or group. Sub-section (1) of Section 4 casts an obligation on every enterprise or group not to abuse its dominant position. Sub-section (2) of Section 4 lists certain activities/circumstances that would constitute abuse of dominant position by an enterprise or group. If an enterprise or group directly or indirectly imposes an unfair or discriminatory price on the purcha....
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.... upon its own knowledge or information. 19.1 Sub-section (4) of Section 20 lays down the factors which the Commission should take into consideration to determine whether the combination has an appreciable adverse effect on the competition in the relevant market or not. 20. Section 21 and 21A provide for reference to be made by the Statutory Authority and reference by the Competition Commission, respectively. Under Section 21, if a Statutory Authority is entrusted with the responsibility of regulating any goods or service or market and concludes that the decision taken by such Statutory Authority would be contrary to the provisions of the Competition Act, then the Statutory Authority shall be bound to refer to the Commission. The Commission, after hearing the parties to the proceedings, shall give the Statutory Authority its opinion, and thereafter the Statutory Authority shall pass its order. 20.1 Under Section 21A if the Competition Commission during the course of the proceedings forms an opinion on a issue raised by any party that a decision taken by the Commission during such proceedings or the decision which is proposed to be taken would be contrary to any provision of....
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....tor. 25.1 The Statement of Objects and Reasons of the TRAI Act of 1997 would disclose that the Act has been amended to bring the quality of telecom services to world standards, to provide a wide range of services to meet the customers' demand at reasonable price, and participation of the companies registered in India in the area of basic as well as value added telecom services and making arrangements/provisions for protection and promotion of consumer interest and ensuring fair competition, for which a Regulator (TRAI) has been established to regulate the telecom services and infrastructure for orderly and healthy growth apart from protection of the consumer interest. 26. Section 2 is the definition clause. Clause (k) of sub-section (1) of Section 2 defines "telecommunication service" to mean service of any description (including electronic mail, voice mail, data services, audio tax services, video tax services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electro-magnetic means but shal....
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....ection 12 defines the powers of the Authority to call for information and conduct investigations, etc. The Authority is empowered to direct a service provider to furnish in writing such information or explanation relating to its affairs as the Authority may require or appoint one or more persons to make an inquiry in relation to the affairs of any service provider and inspect the books of accounts or other documents of any such service provider. Sub-section (4) of Section 12 empowers the Authority to issue such directions to service providers as may be considered necessary for proper functioning by the service providers. 29. Section 13 empowers the Telecom Authority to issue such directions to the service provider from time to time for the discharge of its functions as described under sub-section (1) of Section 11, as may be considered necessary. 30. Chapter IV is in respect of the establishment of the Appellate Tribunal. Section 14 of the said Chapter provides for the establishment of the Appellate Tribunal for the adjudication of the dispute between a licensor and a licensee, between two or more service providers, or between a service provider and a group of consumers. Howe....
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....dom to the parties at the threshold and can regulate interconnection from the very beginning. Paragraphs 47 and 48 are extracted hereunder: 46. Thus, it is clear that the Authority itself understood that its own function under Section 11(1)(d) was only to intervene in the event of the service providers not being able to arrive at an arrangement. It is clear that an arrangement does not necessarily imply an agreement. However, these are matters in which the service provider must be first given an opportunity to arrive at an arrangement amongst themselves. The question of regulation would only arise if the service providers are not able to arrive at an arrangement. The Authority may lay down guidelines regarding those arrangement, provided the guidelines are not contrary to the terms of a license or a policy decision taken by the Government. 47. Section 14 is also relevant. One of the matters on which a dispute could be adjudicated upon by the Authority is revenue sharing arrangement between service providers. If the Authority had powers to issue regulations which were binding on service providers and/or upon the Central Government then everybody would be bound to f....
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.... what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction they give them, whether there shall be any appeal from their decision, or there will UPA 20 wp358-10 be none. In the second of two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction." The Apex Court then stated as under : "These observatio....
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..... Mr. Sastri next pointed out that at the stage when the Income Tax Officer issued the notices he was not acting judicially or quasi-judicially and so a writ of certiorari or prohibition cannot issue. It is well settled however that though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where UPA 22 wp358-10 such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences." (emphasis supplied) 17. In the facts of the instant case, it cannot be said that requiring the petitioners to appear before the Competition Commission will subject the petitioners to lengthy proceedings and unnecessary harassment. Sections 8 and 9 of the Competition Act provides that the Commission shall consist of a Chairperson and two to six Members having special knowledge of, and professional experience of at least fifteen years....
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.... by Director General into the complaint of FICCI-Multiplex Owners' Association. Under sub-section (3) thereof, the Director General submitted a report of his findings that there is contravention of Section 3(3) of the Act and under sub-section (4), the Commission forwarded a copy of the report to the petitioners. After consideration of the petitioners' objections, the Commission has formed an opinion under UPA 24 wp358-10 sub-section (8) that further inquiry is called for. Hence all that the Commission is doing is to hold an inquiry into such contravention as reported by the Director General. All the authorities including disciplinary authority in service matters initiate departmental inquiries upon receiving preliminary inquiry report of subordinate officer indicating misconduct having been committed, but once the inquiry is held by observing the applicable statutory provisions and the principles of natural justice, the concerned disciplinary authority takes a final decision in the matter in accordance with law. Hence, mere issuance of a show cause notice under Section 26(8)/ Section 27, like issuance of a charge-sheet in a departmental inquiry, cannot be treated as pre-ju....
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.... "21. The informant i.e. the person who wishes to complain to the Commission constituted under Section 7 of the Act, would make such information available in writing to the Commission. Of course, such information could also be received from the Central Government, the State Government, statutory authority or on its own knowledge as provided under Section 19(1)(a) of the Act. When such information is received, the Commission is expected to satisfy itself and express its opinion that a prima facie case exists, from the record produced before it and then to pass a direction to the Director General to cause an investigation to be made into the matter. This direction, normally, could be issued by the Commission with or without assistance from other quarters including experts of eminence. The provisions of Section 19 do not suggest that any notice is required to be given to the informant, affected party or any other person at that stage. Such parties cannot claim the right to notice or hearing but it is always open to the Commission to call any "such person", for rendering assistance or produce such records, as the Commission may consider appropriate. 22. The Commission,....
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....fically made appealable under Section 53-A of the Act. 38. In contradistinction, the direction under Section 26(1) after formation of a prima facie opinion is a direction simpliciter to cause an investigation into the matter. Issuance of such a direction, at the face of it, is an administrative direction to one of its own wings departmentally and is without entering upon any adjudicatory process. It does not effectively determine any right or obligation of the parties to the lis. Closure of the case causes determination of rights and affects a party i.e. the informant; resultantly, the said party has a right to appeal against such closure of case under Section 26(2) of the Act. On the other hand, mere direction for investigation to one of the wings of the Commission is akin to a departmental proceeding which does not entail civil consequences for any person, particularly, in light of the strict confidentiality that is expected to be maintained by the Commission in terms of Section 57 of the Act and Regulation 35 of the Regulations. 39. Wherever, in the course of the proceedings before the Commission, the Commission passes a direction or interim order which is at t....
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....inding that the matter pertained to the telecom sector, which was specifically regulated by the TRAI Act. However, it noted that the jurisdiction of TRAI would not oust that of CCI to deal with violations of Competition Act and violations thereunder. Moreover, Paragraph 100 of the Judgment states that in the case therein, the dispute pertained to how Incumbent Dominant Operators (IDOs) had not given Points of Interconnect (POIs) as per the license conditions, and Reliance Jio Infocomm Ltd. (RJIL) had specifically approached TRAI for the settlement of this dispute. TRAI, being the authority that would mandate the adherence to licensing conditions, was, therefore, deemed fit to be seized of the matter before the charge of investigation could be given to the CCI. 31. It is the contention of the Appellants that since the underlying issues arising before the Apex Court and this Court, and the investigation that is sought to be conducted by the CCI are common, this can potentially lead to conflicting opinions. This contention of the Appellants is not acceptable. It is the case of the Appellants that while the Apex Court is looking into whether the 2021 Policy is violative of the....
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....ssues that the CCI is seized of "may substantially be in issue before the Supreme Court and this Court" does not lead to a conclusion that the Supreme Court or this Court are adjudicating upon the same issue. Contrary to what has been submitted by the Appellants, this observation cannot be interpreted as a holding that the issues being considered by both the authorities are the same. Even if the issues are the same, the approach of the authorities is vastly dissimilar, and there exists no inviolable rule that the CCI would completely lack jurisdiction in the instant matter. Parallel inquiries by two different authorities in their respective spheres of adjudication is not uncommon and a slight overlap between the inquiries does not mean that one must lead to the ouster of the other. Therefore, in the absence of any irreconcilable repugnancy between the jurisdiction of both the authorities, i.e. CCI and the Constitutional Courts, the CCI has the liberty to proceed ahead with its investigation under Section 26(1) of the Act." Competition Commission of India v. Bharti Airtel Limited (2019) 2 SCC 521 38. The Supreme Court again reiterated that the order under Section 26(1) of the ....
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....ed the provision of services by delaying or denying POIs to RJIL to block its entry into the market. The CCI took cognisance of the said complaint (Information) and came to a prima facie conclusion that a case for investigation was made out and directed the Director General to cause an investigation in the case. 38.3 The Supreme Court held that the TRAI is an expert regulatory body governing the telecom sector and the following issues: (a) Whether IDOs were under any obligation to provide POIs during the test period? (b) As per the letter dated June 21, 2016, from RJIL, when were IDOs to commence provisioning of POIs to RJIL? (c) Whether the demand for POIs made by RJIL was reasonable or not? (d) Whether there was any delay/denial at the end of Vodafone in the provisioning of POIs? (e) Whether the POIs were to be provided 'immediately' and during 'test phase'? (f) Whether IDOs have provided a sufficient number of POIs to RJIL in conformity with the licence conditions? These are to be decided by the TRAI in the first instance. These issues involve jurisdictional aspects. Unless the TRAI finds fault with the IDOs on the afor....
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....ature of jurisdiction conferred upon an expert regulator pertaining to this specific sector, the High Court is right in concluding that the concepts of "subscriber", "test period", "reasonable demand", "test phase and commercial phase rights and obligations", "reciprocal obligations of service providers" or "breaches of any contract and/or practice", arising out of the TRAI Act and the policy so declared, are the matters within the jurisdiction of the Authority/TDSAT under the TRAI Act only. Only when the jurisdictional facts in the present matter as mentioned in this judgment particularly in paras 72 and 102 above are determined by TRAI against the IDOs, the next question would arise as to whether it was a result of any concerted agreement between the IDOs and COAI supported the IDOs in that endeavour. It would be at that stage CCI can go into the question as to whether violation of the provisions of the TRAI Act amounts to "abuse of dominance" or "anti-competitive agreements". That also follows from the reading of Sections 21 and 21-A of the Competition Act, as argued by the respondents. 105. The issue can be examined from another angle as well. If CCI is allowed to inte....
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....within the jurisdiction of the CCI to find out whether IDOs were acting in concert and colluding, thereby forming a cartel to block or hinder entry of RJIL in the market in violation of Section 3(3)(b) of the Competition Act. Whether there was an anti-competitive agreement between the IDOs using the platform of COAI. The CCI would be required to determine whether the conduct of the parties was unilateral or collective action based on an agreement. And such an exercise has to be undertaken by the CCI. The Supreme Court further held that when the two statutes operate in different fields and have different purposes, it cannot be said that there is implied repeal of one by another. The Competition Act is a special statute which deals with anti-competition practices/agreements. It is further held that the TRAI is not at all equipped to deal with these issues. The TRAI returns a finding that a particular activity was anti-competitive; its powers would be limited to the action that can be taken under the TRAI Act alone. It is only the CCI which is empowered to deal with the same anti-competitive act from the lens of the Competition Act. 38.8 Paragraphs 109 to 113 are extracted hereunde....
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....ay 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 person or enterprises which are parties to such agreements or abuse: Provided that in case any agreement referred to in Section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher. (c) repealed; (d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission; (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, i....
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....ich is specifically regulated by the TRAI Act, balance is maintained by permitting TRAI in the first instance to deal with and decide the jurisdictional aspects which can be more competently handled by it. Once that exercise is done and there are findings returned by TRAI which lead to the prima facie conclusion that the IDOs have indulged in anti-competitive practices, CCI can be activated to investigate the matter going by the criteria laid down in the relevant provisions of the Competition Act and take it to its logical conclusion. This balanced approach is construing the two Acts would take care of Section 60 of the Competition Act as well." MRF Limited rep. by its Company Secretary Mr Ravi Mannath v. Ministry of Corporate Affairs (MCA) rep by Secretary to Government of India 2022 SCC OnLine Mad 50 39. The Madras High Court held that the power of the CCI to go into the merits of the Information is within its exclusive domain as the original adjudicating authority, and the writ Court is not expected to interfere at the preliminary stage. The CCI, being a fact-finding authority, shall be left free to find out the truth of the allegations after conducting a proper inquiry. T....
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....rinciples of res judicata may not apply, inasmuch as the expression 'for each year of the continuance of such agreement', the CCI is empowered to investigate the complaint of cartelization, as it concerns with each year. Moreover, if the CCI taking up the complaint for the year 2008, finding want of acceptable evidence, dismissed the complaint for the year 2008, it does not mean that the same CCI is precluded from entertaining a fresh complaint for the next year against the same producer or distributor, trader, etc., by virtue of Section 27. When the Act permits the CCI to initiate action on the complaint of cartelization independently for each year, the argument of the appellant on the principles of res judicata cannot be accepted. This issue is also answered against the appellant, accordingly." Samir Agrawal v. Competition Commission of India (CAB Aggregators case) (2021) 3 SCC 136 40. The Supreme Court held that under the provisions of the Competition Act and the 2009 Regulations, "any person" may provide information to the CCI, which may then act upon it in accordance with the provisions of the Act. In this regard, the definition of "person" in Section 2(l) of the....
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....the Act, in which the earlier expression "complainant or defendant has been substituted by the expression, "person or an enterprise", setting out that the informant may appear either in person, or through one or more agents, before CCI to present the information that he has gathered. 16. Section 45 of the Act is a deterrent against persons who provide information to CCI, mala fide or recklessly, inasmuch as false statements and omissions of material facts are punishable with a penalty which may extend to the hefty amount of rupees one crore, with CCI being empowered to pass other such orders as it deems fit. This, and the judicious use of heavy costs being imposed when the information supplied is either frivolous or mala fide, can keep in check what is described as the growing tendency of persons being "set up" by rivals in the trade. 17. The 2009 Regulations also point in the same direction inasmuch as Regulation 10, which has been set out hereinabove, does not require the informant to state how he is personally aggrieved by the contravention of the Act, but only requires a statement of facts and details of the alleged contravention to be set out in the informati....
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....service provider, or to compromise, in the placement of the channel in the Electronic Program Guide. 41.2 The learned Single Judge held that the requirement in the Regulation that all placement and marketing agreements have to be reported to the regulator is not a decision which could have been taken without considering and addressing the objections of the MSOs on this point. The power of the TRAI to form an opinion that it is necessary or expedient to disclose the information of public interest, even in respect of commercially and financially sensitive information, is clearly a total discretion of the authority, and such discretion is not guided by any criteria or guidelines. 41.3 As the Court found that no proper consultation and consideration were given to the objections of MSOs, the Regulation, so far as the required disclosure of the placement agreements bilaterally entered into between the broadcasters and the distributors was unsustainable. Paragraphs 54 to 58 are extracted hereunder : "54. It is admitted that the placement of the channels in the Electronic Program Guide is now fully regulated and channels are to be placed genre wise and language wise as pr....
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....dings placed on record would show that such discretion is not guided by any specific criteria or guidelines. 56. I also find that the authority has proceeded on the specific premise that placement agreements are a part of interconnection and are entered into under the RIO and therefore no further consideration is required for bringing such placement agreements within the scope of the Regulations with regard to maintenance of Registers. This reasoning, according to me, is completely untenable in view of the fact that specific issue is still pending consideration. Therefore, even if it is accepted that the power of the TRAI to issue Regulations is not limited to regulating inter-connection, the exercise of the power should be strictly in accordance with the statute. When the statute specifically provides for transparency in the framing of the Regulations, the specific issues were required to be put to consultation and the objections raised require a proper consideration before any Regulations can be effected. 57. Having considered the consultation process supporting the impugned regulations at considerable depth. I am of the considered view that apart from stating t....
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....nant position. However, the Competition Act makes provision for reasonable conditions being imposed in an agreement concerning exercise of rights under the Patents Act. Since such reasonable conditions are exempted from examination under section 3(5)(i)(b) of the Competition Act, it is indicative of the legislature's intendment as to the exclusive domain of the Patents Act regarding reasonable conditions. Similar, in our view, is the situation with the language of Section 83(f) of the Patents Act as compared with that of Section 4 of the Competition Act. 52. In our opinion, Chapter XVI of the Patents Act is a complete code in itself on all issues pertaining to unreasonable conditions in agreements of licensing of patents, abuse of status as a patentee, inquiry in respect thereof and relief that is to be granted therefor. 53. In reconciling the two statutes, the subject matter that is in focus is not merely anti-competitive agreements and abuse of dominant position, which both the Patents Act (in Chapter XVI) and the Competition Act (in Sections 3 and 4) deal with. The subject matter that is relevant for this assessment is anti-competitive agreements and abuse ....
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....prevail over the AICTE Act which, as observed hereinabove, is a general statute dealing with technical education/institutions. Therefore, the submission on behalf of AICTE and/or educational institutions concerned that the AICTE Act is a subsequent law and in the definition of "technical education" it includes the "pharmacy" and therefore it can be said to be an "implied repeal", cannot be accepted. At his stage, it is required to be noted that as such in the AICTE Act there is no specific repeal of the Pharmacy Act, more particularly when, as observed hereinabove, the Pharmacy Act is a special Act and the subsequent enactment of the AICTE Act is general and therefore the Pharmacy Act being a special Act must prevail. Apart from that, with regard to several aspects, there is no provision made in the AICTE Act which are exclusively within the domain of PCI. Thus, it cannot be accepted that there is "implied repeal" of the Pharmacy Act. 15. Now the next question which is required to be considered is whether in the field of pharmacy, PCI would have the jurisdiction or AICTE constituted under the AICTE Act which is held to be a general law. The constitution and composition of ....
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.... 16. The aforesaid question is also required to be viewed from another angle. Both, PCI and AICTE are the creature of the statute. Therefore, it is not at all healthy that the two regulators, both being Central authorities, can be permitted to fight for supremacy. The fight of supremacy between both the regulators is unhealthy for the education sector as well as the institutions to permit two regulators to function in the same field. Therefore, also and more particularly when PCI consists of the experts in the field of pharmacy and other related subjects, it is in the larger interest of the field of pharmacy that PCI must be given the power to regulate in the field of pharmacy. *** *** *** 20. In view of the above and for the reasons stated above, it is held that in the field of pharmacy education and more particularly so far as the recognition of degrees and diplomas of pharmacy education is concerned, the Pharmacy Act, 1948 shall prevail. The norms and regulations set by PCI and other specified authorities under the Pharmacy Act would have to be followed by the institutions concerned imparting education for degrees and diplomas in pharmacy, including th....
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....ail on the question of granting approval and related to matters of Institutions for conducting architectural education courses, if there is any contradiction in the opinion of these two bodies which are regulatory bodies constituted by the two parliamentary legislations. 44.1 It was held that Section 10 of the AICTE Act mandates AICTE to undertake the duties on the subjects specified therein. AICTE exercises the power to regulate institutions imparting architectural education to the strength of the definition of technical education, which has been defined to mean programs of education, research and training in architecture. The Supreme Court held in respect of the provisions of Section 2 (g) of the 1987 Act, the definition of "technical education" would have to be given such a construction and the word "architecture" should be treated to have been inapplicable in cases where the AICTE imports its regulatory framework for institutions undertaking technical education. Furthermore, so far as recognition of degrees and diplomas of architecture education is concerned, the 1972 Act prevails, and AICTE will not be entitled to impose any regulatory measure in connection with the degrees....
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....n request from a distributor of television channels for obtaining signals of television channel or within thirty days of signing of interconnection agreement with the distributor, as the case may be, provide, on non-discriminatory basis, the signals of television channel to the distributor Provided that imposition of any term or condition by the broadcaster, which is unreasonable, shall be deemed to constitute a denial of request: Provided further that this sub-regulation shall not apply to a distributor of television channels, who requests signals of a particular television channel from a broadcaster while at the same time demands carriage fee for distribution of that television channel or who is in default of payment to the broadcaster and continues to be in such default." 45.3 As mentioned above, the Regulation further capped the total discount (15% of MRP) and distribution fees (20% of MRP) payable to distributors at 35% of MRP. Regulation 7(4) of the Interconnection Regulations 2017 mandates broadcasters to offer discounts based on fair, transparent, and non-discriminatory terms to ensure a level playing field for distributors. Regulation 7(4) is extracted....
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....gulation in respect of the telecom and broadcasting services, should first examine the allegation, and the ADNPL should have filed the complaint before the TRAI/TDSAT and not have approached the CCI at the first instance? (IV) When the information contains the allegation of misuse of the dominant position in the relevant market, as well as the violation of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations 2017 (for short, 'Interconnection Regulations 2017') and the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order 2017 (Collectively, New Regulatory Framework), the CCI should direct the informant, the ADNPL, to approach the TRAI and once the jurisdictional facts are determined by the TRAI, then only the CCI should proceed with the matter, if it is so required? 47. Mr Maninder Singh, learned Senior Counsel, has submitted that primarily the allegations in the Information filed by the ADNPL before the CCI are about the non-compliance of the Interconnection Regulations 2017. The entire gravamen of the ADNPL in its Information with the CCI is that the SIPL is circumventing TR....
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....et, as it brings about various benefits for the public at large as well as economy of the nation. In fact, the ultimate goal of competition policy (or for that matter, even the consumer policies) is to enhance consumer well-being. These policies are directed at ensuring that markets function effectively. Competition policy towards the supply side of the market aims to ensure that consumers have adequate and affordable choices. Another purpose in curbing anti-competitive agreements is to ensure "level playing field" for all market players that helps markets to be competitive. It sets "rules of the game" that protect the competition process itself, rather than competitors in the market. In this way, the pursuit of fair and effective competition can contribute to improvements in economic efficiency, economic growth and development of consumer welfare. How these benefits accrue is explained in the ASEAN Regional Guidelines on Competition Policy, in the following manner : "2.2. Main Objectives and Benefits of Competition Policy 2.2.1.1. Economic efficiency: Economic efficiency refers to the effective use and allocation of the economy's resources. Competition tends to bring ....
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.... behaviour and prevent them from behaving independently of effective competitive pressure. Thus, it would not be proper to say that the Competition Act is general, but it is a special Act which deals with anti-competitive practices as defined under the Act itself. The CCI is a sectoral regulator, so far as it relates to the curbing of anti-competitive practices in India is concerned. 51. The TRAI Act has been enacted to bring the quality of telecom services to world standards, to provide a wide range of services to meet the consumers' demand at a reasonable price, and to ensure the participation of companies registered in India as well as value added telecom services and making arrangements/provisions for protection and promotion of consumer interest and ensuring fair competition. To protect the interests of service providers and consumers of the telecom sector, to ensure technical compatibility and effective inter-relationship between different service providers and to ensure compliance with license conditions by all the service providers, a sectoral regulator, i.e., TRAI, has been constituted under the TRAI Act. 51.1 TRAI performs a recommendatory/advisory and regulatory bo....
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....ctoral regulator for dealing with anti-competitive practices in the relevant market and misuse of the dominant position, will have the jurisdiction to deal with the said allegation and not the TRAI. If there are allegations regarding violation of the terms of the license conditions or the provisions of the Regulations framed by the TRAI, the TRAI, being the sectoral regulator of the field, would assume jurisdiction to deal with those allegations. This Court, therefore, is of the view that there is no conflict insofar as the jurisdiction of the two sectoral regulators is concerned. Issue Nos III and IV Whether the TRAI, being the sectoral regulation in respect of the telecom and broadcasting services, should first examine the allegation, and the ADNPL should have filed the complaint before the TRAI/TDSAT and not have approached the CCI at the first instance? When the information contains the allegation of misuse of the dominant position in the relevant market, as well as the violation of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations 2017 (for short, 'Interconnection Regulations 2017') and the T....