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2013 (2) TMI 507 - AT - Indian LawsBreach of provisions under Section 4 of Competition Act, 2002 - abused of dominance position - Appellant-company was engaged in development of telecommunication networks, security systems, display systems and traffic management systems filed information against AAI complaining that it was abusing its dominant position by specifying a particular technology, i.e., hydraulic bollards, in its procurement tender invitation notice for bollards, and, therefore, creating technical entry barriers for other type of bollards like one which were being produced by appellant-company - Held that:- Tribunal cannot accede to any of the prayers in the information, as it is not for this Appellate Tribunal to re-write the tender conditions. It is also not for this Tribunal to frame the policies of the bodies like Airport Authority of India. Lastly, it is also not for this Tribunal to direct the CCI to address it to Vigilance Commission. The contention raised by informant cannot be accepted as that in requiring specific type of Bollards i.e. Hydraulic operated bollards the AAI has in any way breached any of the provision of section 4. The AAI was acting in its capacity as a consumer and as argued by the representative for the AAI it was equipped with technical committee to advise the AAI for a purchase of particular type of bollards. It cannot be imagined that a body like AAI was not equipped with the technical advice and would be acting without any such technical assistance. Therefore, if the AAI had a free choice to purchase a particular type of commodity, its hands could not be tied by taking the recourse to the competition act and the provisions there under. After all in the market the consumer would have to be given consumers dew i.e. basically his choice. The contention raised by appellant therefore, rejected. The argument of Appellant cannot be accepted that AAI was a dominant purchaser and had abused its dominance. In fact for the purposes of deciding the dominance, both the product market as well as geographical market are to be considered and insofar as the product market is concerned, it related to all the kinds of bollards whether hydraulic operated or otherwise. It is commonly known that bollards are used everywhere. The bollards are used even for the entry into the star hotels. They are used even for controlling the traffic. They are used everywhere where security and safety is required to be maintained. Therefore, there is nothing relevant about a particular type of bollards. They are required by not only AAI but by number of other institutions. Therefore, it cannot be said that the AAI would be a dominant player. Therefore the market to be only the five airports named in the notice inviting tender cannot br restricted. Once the AAI held not to be in a dominant position, there would be no question of going further into the breach or otherwise of Section 4 of the Act.
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