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TMI Blog2018 (12) TMI 1683X X X X Extracts X X X X X X X X Extracts X X X X ..... hwa, Harsh Kaushik, Atul Dua, Chinmayee Chandra, Ankush Walia, Param Tandon, Anju Berry, Aashish Gupta, Aditya Mukherjee, Sugnadha Rohatgi, S.S. Shroff, Sanjay Kapur, Megha Karnwal, Mansi Kapur and Shubhra Kapur, Advs. JUDGMENT A.K. Sikri, 1. Leave granted. 2. Reliance Jio Infocomm Limited (hereinafter referred to as 'RJIL') has filed information Under Section 19(1) of the Competition Act, 2002 (hereinafter referred to as the 'Competition Act') before the Competition Commission of India (for short, 'CCI') alleging anticompetitive agreement/cartel having been formed by three major telecom operators, namely, Bharti Airtel Limited, Vodafone India Limited and Idea Cellular Limited (Incumbent Dominant Operators) (hereinafter referred to as the 'IDOs'). Similar Informations Under Section 19 of the Competition Act were also filed by one Mr. Ranjan Sardana, Chartered Accountant, and Mr. Justice Kantilal Ambalal Puj (Retd.). These were registered by the CCI as Case Nos. 80-81, 83 and 95 respectively. As per Section 26 of the Competition Act, on receipt of such an information, the CCI has to form an opinion as to whether there exists a prima facie case or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "enterprise" are bound by the statutory agreements/contracts, apart from related policy, usage, custom, practice so announced by the Government/Authority, from time to time. c) The question of interpretation of clarification of any "contract clauses", "unified license", "interconnection agreements", "quality of service Regulations", "rights and obligations of TSP between and related to the above provisions", are to be settled by the Authorities/TDSAT and not by the Authorities under the Competition Act. d) The concepts of "subscriber", "test period", "reasonable demand", "test phase and commercial phase rights and obligations", "reciprocal obligations of service providers" or "breaches of any contract and/or practice", arising out of TRAI Act and the policy so declared, are the matters within the jurisdiction of the Authority/TDSAT under the TRAI Act only. e) The Competition Act and the TRAI Act are independent statutes. The statutory authorities under the respective Acts are to discharge their power and jurisdiction in the light of the object, for which they are established. There is no conflict of the jurisdiction to be exercised by them. But the Competition Act itself is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 21 April 2017 and all the consequential actions/notices of the Director General under the Competition Act, therefore, in the present facts and circumstances, are not mere "administrative directions". k) Impugned order dated 21 April 2017 and all the consequential actions/notices of the Director General under the Competition Act are, therefore, illegal, perverse and also in view of the fact that it takes into consideration irrelevant material and ignores the relevant material and the law. l) Every majority decision cannot be termed as "cartelisation". Even ex-facie service providers and its Association COAI have not committed any breaches of any provisions of the Competition Act. 131. Hence the following ORDER a) Impugned order dated 21 April 2017, passed by the Competition Commission of India (CCI) under the provisions of Section 26(1) of the Competition Act, 2002 in case Nos. 81 of 2016, 83 of 2016 and 95 of 2016 and all the consequential actions/notices of the Director General Under Section 41 of the Competition Act, are liable to be quashed and set aside, in exercise of power Under Article 226 of the Constitution of India. Order accordingly. b) All the Writ P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily the message behind the decision of the High Court is that jurisdictional facts are to be decided by the authorities under the TRAI Act which has the exclusive jurisdiction to determine those issues as the TRAI is the statutory authority established for this very purpose, and unless there is a determination of these facts, the machinery under the Competition Act cannot be invoked. To put it otherwise, the judgment proceeds to decide that it was premature for the CCI to entertain the Information for want of determination of such issues that fall within the domain of the TRAI Act. 5. It is obvious that the RJIL is not happy with the aforesaid outcome. Even the CCI feels aggrieved. CCI has impugned this decision by filing four special leave petitions, while the other one has been filed by the RJIL. 6. The material facts which are absolutely essential to determine the controversy, eschewing the unnecessary details, may now be recapitulated: Factual Background: With the decision of the Government of India, more than 25 years ago, ushering into era of globalisation and liberalisation, lot of avenues opened up. It led to the privatisation of business in many sectors which were, hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the interest of consumers and to ensure freedom of trade. In that sense, the CCI is also a regulator. But a unique feature of the CCI is that it is not sector based body but has the jurisdiction across which transcends sectoral boundaries, thereby covering all the industries, with focus on the aforesaid object and purpose behind the Competition Act, 2002. 7. In the instant appeals, width and scope of the powers of the CCI under the Competition Act, 2002 pertaining to telecom sector i.e. in respect of the companies in telecom industry providing telecom services is to be defined vis-a-vis the scope of the powers of TRAI under the TRAI Act, 1997. It has arisen in these appeals, in the following background: As mentioned above, TRAI is the regulatory which regulates the functioning of the telecom service provider i.e. the telecom sector. Section 11 of the TRAI Act enumerates various functions which TRAI is supposed to perform under the Act. Section 13, likewise, empowers the TRAI to issue directions, from time to time, to the service provider. In exercise of powers Under Section 13 read with Section 11 of the TRAI Act, the TRAI issued directions dated June 07, 2005 to all the telec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RJIL, within seven days. Idea responded by sending letter dated July 26, 2016 to RJIL denying that there had been any delay in augmentation of POIs and further stated that it is willing to fully support RJIL and that it had instructed its circle teams to augment the POIs on the basis of traffic congestion as per the ICA. Likewise, Airtel also sent reply dated August 03, 2016 to TRAI, inter alia stating that augmentation of POIs shall be undertaken as per the terms and conditions of the ICA and on the basis of traffic trends post their commercial launch. RJIL was not satisfied with such responses. It sent another letter dated August 04, 2016 to TRAI reiterating its earlier request for augmentation of POIs by the subject telecom operators. In the meantime, even Cellular Operators Association of India (COAI) intervened by addressing communication dated August 08, 2016 to TRAI wherein it took a stand by stating that the RJIL was providing free service to millions of users under the guise of testing which led to choking of POIs. It was further suggested that due to the free service provided by RJIL, a substantial imbalance in voice traffic had occurred for which the existing operators w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e License Agreements. Similar show cause notices were also sent to other telecom operators. On October 21, 2016, TRAI issued recommendations to DoT after finding that IDOs have violated conditions under the QoS, interconnection agreements and Unified License. The TRAI inter alia stated in its recommendation as under: 21. ... (vii) It is evident from the above clauses that the licensees are mandated to provide interconnection to all eligible telecom service provider. However, as mentioned in para 6 above, Airtel along with other service providers have jointly through their association (COAI), declined Point of Interconnection to RJIL which is willful violation of the above mentioned license conditions. ...(x) COAI's letter dated 2nd September, 2016 which was confirmed by Airtel in the meeting held on 9th September, 2016 clearly indicates attempt by three service providers namely, Airtel, Vodafone India Limited and Idea Cellular Limited to stifle competition in the market and willfully violate the license conditions;.... 23. While the Authority has been taking necessary steps to ensure effective interconnection between Airtel and RJIL, it is evident from Para 21 that Airtel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement amongst themselves through the platform of COAI, to deny POIs to RJIL. Having been prima facie convinced that the impugned conduct is an outcome of the anti-competitive agreement amongst ITOs, Commission does not find it appropriate to consider the same impugned conduct as unilateral action by each of the ITOs. The Commission therefore at this stage does not find it necessary to deal with the allegations and submissions regarding abuse of dominance in contravention of the provisions of Section 4 of Act. 24. In view of the foregoing, the Commission directs the DG to cause an investigation into the matter under the provisions of Section 26(1) of the Act. Considering the substantial similarity of allegations in all the informations, the Commission clubs them in terms of the proviso to Section 26(1) of the Act read with Regulation 27 of the Competition Commission of India (General) Regulations, 2009. The DO is directed to complete the investigation and submit investigation report within a period of 60 days from the date of receipt of this Order, if the DG finds contravention, he shall also investigate the role of the persons who at the time of such contravention were in-charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 2 issued a letter of investigation to the Appellant seeking detailed information/documents to be furnished by June 30, 2017. Immediately thereafter, writ petitions were filed challenging the aforesaid order of the CCI as well as action of the Director General seeking information for holding inquiry. After preliminary hearing, the High Court passed interim orders dated June 30, 2017 on the basis of statement of the counsel for CCI that they shall not proceed with the investigation, which order continued till the disposal of the writ petitions. The High Court after hearing the matter finally allowed the writ petitions, as already mentioned. 17. It is clear from the above that as per RJIL, the Respondent service providers, along with COAI, entered into an anti-competitive agreement/formed a cartel and acted in an anti-competitive manner which is prohibited by the Act. On these allegations, it approached the CCI for initiating inquiry into this anti-competitive practices. Insofar as the nature of alleged anti-competitive agreement is concerned, the allegations of RJIL are the following: (i) Delay in provisioning or denial in provisioning of POIs, also known as 'E1& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone into by the TRAI as the CCI was the only statutory authority constituted under the Act to examine such an issue. 21. The Bombay High Court in the impugned judgment has, thus, inter alia, held as under: (i) the Competition Commission of India (CCI) had no jurisdiction in view of the Telecom Regulatory Authority of India Act, 1997 and the authorities and Regulations made thereunder; (ii) the CCI could exercise jurisdiction only after proceedings under the TRAI Act had concluded/attained finality; (iii) the order dated 21.04.2017 passed Under Section 26(1) of the Competition Act was not an administrative direction, but rather a quasi judicial one that finally decided the rights of parties and caused serious adverse consequences, because a detailed hearing had been given and many materials had been tendered in the courts of the hearings; (iv) on the merits of the matter, there was no cartelisation as alleged and COAI was exonerated; and (v) the order of the CCI was perverse and liable to be interfered with under writ jurisdiction. Arguments: The Appellants: 22. Mr. P.S. Narasimha, learned Additional Solicitor General, appeared on behalf of the CCI and submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ? It is precisely this issue that requires investigation by the Director General. If the conduct of the Respondents in delaying/denying POIs was unilateral (i.e. an independent decision made by each of them), then the conduct cannot be faulted Under Section 3 of the Act since Section 3 is premised on existence of an 'agreement' as defined in Section 2(b). However, if the conduct of the Respondents was based on an 'agreement', it would become illegal Under Section 3(3)(b) of the Act because its intent and effect is to 'limit or control production, supply, markets, technical development, investment or provision of services". It was contended that the conduct may well be legal under the TRAI Act and Regulations or other laws. However, it is the collusive/concerted nature of the action coupled with the effect that makes it illegal under the Competition Act. 25. He adverted to the order dated April 21, 2017 of the CCI, while taking its prima facie view and submitted that the CCI has recognised the distinction between the issues before the TRAI and the issues arising under the Act, as follows: 9. It is observed that telecom sector is regulated by TRAI as the sector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the areas covered Under Section 3 of the Act are covered by TRAI in its mandate as a sector regulator for TSPs. No doubt, TRAI has the responsibility/obligation to determine whether Quality of Service Regulations and interconnection norms on the levels of congestion at the points of interconnection are complied with it not. But apart from that, none of the other issues as envisaged Under Section 3 of the Act are looked into by TRAI. Specifically, TRAI cannot arrive at a determination as to whether the ITOs have colluded and cartelized to deny POIs to the detriment of RJIL in violation of Section 3(3) read with Section 3(1) of the Act. The scope of the Section 3 allegation is not whether the ITOs have breached the terms of their respective License agreement or ICA, rather, the scope of the Section 3 allegations pertains to whether the ITOs have entered into an anti-competitive agreement to provide insufficient POIs or delay the provisions of POIs to RJIL. It is within the mandate of the Commission which can adjudicate on the issue of cartelization amongst enterprises/associations and arrive at a finding on the alleged cartelization. The Commission accordingly holds that the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 3(3) of the Act. 26. He submitted that it was the statutory duty of the CCI, enumerated in Section 18 of the Act, to eliminate anti-competitive practices and the focus of the CCI was confined to this Court's judgment in the case of Haridas Exports v. All India Float Glass Manufacturers' Assn. and Ors. (2002) 6 SCC 600 wherein it was held that where statutes operate in different fields and have different purposes, it cannot be said that there is implied repeal by one, of the other. In the said case, this Court was considering alleged conflict between the Monopolies & Restrictive Trade Practices Act, 1969 and the Anti-Dumping Rules under the Customs Act/Customs Tariff Act. It was held: 48. The jurisdiction of the MRTP Commission, in our opinion, is not ousted by the anti-dumping provisions in the Customs Act. The two Acts operate in different fields and have different purposes. The Import Control Act and the Customs Tariff Act are concerned with import of goods into India and the duty which could be imposed on the imported items. Import may be allowed on the basis of an import licence or, depending upon the policy, import may be allowed under OGL - open general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein. He also referred to the definitions of 'agreement', 'cartel', 'enterprise' and 'service' contained in Section 2 of the Act and submitted that the definition of 'agreement' is not restricted to written agreements, but even extends to 'action in concert', which, according to him, is wide enough to allegations of RJIL, if proved correct, within the mischief of Section 3 of the Act. He also referred to Section 19(3) of the Act which lists certain factors to be considered in analysing adverse effect on competition and submitted that creation of barriers to new entrants in the market and foreclosure of competition by hindering entry into the market are to be perceived as having adverse effect on competition. He, thus, submitted that having regard to the aforesaid provisions, the CCI wanted to investigate the matter with focus on the aspect as to whether there was an agreement between the Respondent service providers and they acted in concert pursuant to the said agreement; whether it amounted to anti-competitive act on the part of these Respondents and had adverse effect on the competition. In the process, the CCI was also suppose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al regulators like the TRAI is development of their respective sector. However, what is important to bear in mind is that the promotion of competition and prevention of competitive behaviour may not be high on the agenda of a sectoral regulator which makes it prone to 'regulatory capture'. The position has been very succinctly captured by the Report of the Working Group on Competition Policy, Planning Commission of India, Government of India, February 2007 which states as follows: 7.2.3 The objective of a sectoral regulator is to provide good quality service at affordable rates, but the promotion of competition and prevention of anti-competitive behaviour may not be high on its agenda or the laws governing the regulator may be silent on this aspect. It is not uncommon for sectoral regulators to be more closely aligned with the interest of the firms being regulated, which is also known as 'regulatory capture'. Besides, a sectoral regulator may not have an overall view of the economy as a whole and may tend to apply yardsticks which are different from the ones used by the other sectoral regulators. In other words, there is a possibility of the lack of consistency ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 21 and Section 21A of the Act. In any case, Section 60 of the Act had an overriding effect. To support his argument, the learned ASG relied upon State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772 wherein this Court dealt with the issue of whether a prescription of offence under the Mines & Minerals Development & Regulation (MMDR) Act would exclude the application of the Indian Penal Code. The Court held that due to the absence of a non-obstante clause, the application of the Indian Penal Code was not excluded. In the present case, the TRAI Act does not apply notwithstanding any other laws, and it does not contain an overriding effect provision containing a non-obstante clause. The relevant paragraphs of the judgment have been extracted below: 62. Sub-section (1-A) of Section 4 of the MMDR Act puts a restriction in transporting and storing any mineral otherwise than in accordance with the provisions of the Act and the Rules made thereunder. In other words no person will do mining activity without a valid lease or licence. Section 21 is a penal provision according to which if a person contravenes the provisions of Sub-section (1-A) of Section 4, he shall be prosecuted and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar non obstante provision is contained in Section 13 of the Special Court Act which reads as follows: 13. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any court, tribunal or other authority. 9. It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail. The decisions cited in the above context are as follows: Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of Maharashtra Ltd. [ (1993) 2 SCC 144]; Sarwan Singh v. Kasturi Lal [ (1977) 1 SCC 750: (1977) 2 SCR 421]; Allahabad Bank v. Canara Bank [ (2000) 4 SCC 406] and Ram Narain v. Simla Banking & Industrial Co. Ltd. [AIR 1956 SC 614 : 1956 SCR 603]. 31. The learned ASG endeavoured to support his proposition by referring to the contrasting provision contained in Section 14 of the TRAI Act which provides for dispute resolution in respect of various categories of persons bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the understandings. Articles 81 EC and 82 EC may apply, however, if it is found that the national legislation leaves open the possibility of competition which may be prevented, restricted or distorted by the autonomous conduct of undertakings (Joined Cases C-359/95P and C-379/95P Commission and France v. Ladbroke Racing (1997) ECR I-6265, paragraphs 33 and 34 and the case-law cited). 34. Mr. Narasimha also referred to another judgment of the General Court of the European Union in Telefonica SA v. European Commission (T-336/07) wherein it was held that the European Commission could intervene in the telecommunications market, even though the entry was regulated through a sectorial regulator. He pointed out that this decision of the General Court was upheld in appeal by the European Court of Justice vide its judgment dated July 10, 2014. 35. Mr. Narasimha also contrasted the investigative regime under the two Acts, i.e. Section 12 of the TRAI Act vis-a-vis Section 41 read with Section 36(2) of the Competition Act and submitted that the Director General under the Competition Act is better equipped to deal with detection and investigation of anti-competitive agreements. 36. Label ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. xx xx xx 97. The above reasoning and the principles enunciated, which are consistent with the settled canons of law, we would adopt even in this case. In the backdrop of these determinants, we may refer to the provisions of the Act. Section 26, under its different Sub-sections, requires the Commission to issue various directions, take decisions and pass orders, some of which are e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Competition Act. He submitted that such material was taken into consideration and discussed in the order itself and he referred to certain paragraphs of the order dated April 21, 2017 in this behalf. In the process, he again emphasised that none of the observations made in the said order are conclusive findings in any way and not binding on the Director General and this was only the starting point, as held in the case of Excel Crop Care Limited. 41. M/s. Harish Salve, Dr. A.M. Singhvi, Ramji Srinivasan and Amit Sibal, learned senior advocates, argued on behalf of RJIL. Their detailed submissions were almost on the lines on which Mr. Narasimha, learned ASG, had argued on behalf of the CCI. 42. In the first place, it was emphasised that insofar as dragging of COAI into this investigation is concerned, it was sought to be justified by placing reliance on Section 3 of the Act which specifically recognises possible mischief by an association of persons or an association of enterprises. It was stressed that Section 3(3) recognises certain agreements as per se violations, and shall be presumed to have appreciable adverse effect on competition. Submission was that associations of enterp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to respond to challenge posed by a new entrant RJIL, is by itself violative of Section 3 of the Act. The learned senior Counsel pointed out that the defence of the COAI is that it was merely lobbying the Government for enacting a change in law or Regulation to stop Reliance Jio from carrying out test on such a large scale by introducing limits on number of Test-subscribers. However, the letters of COAI revealed an active participation of taking sides of certain operators whose interest was to hinder, or at least slowdown the entry of the new operator. COAI announced unilateral decisions like virtual boycott (which is not the same as lobbying for change of Regulation). To support this argument, reference was made to the decisions of Supreme Court of United States in FTC v. Supreme Court Trial Lawyers Association 493 US 411 (1990) wherein it has observed that: no violation of the Act can be predicated upon mere attempts to influence the passage or enforcement of laws," even if the Defendants' sole purpose is to impose a restraint upon the trade of their competitors. But in the Noerr case the alleged restraint of trade was the intended consequence of public action; in this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lm producers, distributors and exhibitors, operating mainly in the State of West Bengal. Likewise, the Coordination Committee is the joint platform of Federation of Senior Technician and Workers of Eastern India and West Bengal Motion Pictures Artistes' Forum. Both Eimpa as well as the Coordination Committee acted in a concerted and coordinated manner. They joined together in giving call of boycott of the competing members i.e. the informant in the instant case and, therefore, the matter cannot be viewed narrowly by treating Coordination Committee as a trade union, ignoring the fact that it is backing the cause of those which are "enterprises". The constituent members of these bodies take decision relating to production or distribution or exhibition on behalf of the members who are engaged in the similar or identical business of production, distribution or exhibition of the films. Decision of these two bodies reflected collective intent of the members. When some of the members are found to be in the production, distribution or exhibition line, the matter could not have been brushed aside by merely giving it a cloak of trade unionism. For this reason, the argument predicated on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 26(1) of the Competition Act. This also becomes a valid ground to challenge the order by filing writ petition Under Article 226 of the Constitution of India. 47. Insofar as the argument of the Respondents that the TRAI Act is a complete code and the jurisdiction of CCI is totally ousted, the argument proceeded on the following basis: The real issue which arises is comparison of two regimes - one regulated by TRAI under the Indian Telegraph Act, 1885, Wireless Telegraphy Act, 1933 and the TRAI Act, 1997 which together forms a comprehensive and complete code; and the other being CCI under the Competition Act. The various provisions under these legislations seen with the terms of the License Agreement show that the issues arising out of interconnection between different operators shall be determined within the overall framework of the interconnection Regulations/directions/orders issued by TRAI from time to time. The Object and Reasons of the TRAI Act itself lays down that it is mandated to make arrangements for protection and promotion of consumer interest and ensuring fair competition and to ensure orderly and healthy growth of telecommunication infrastructure. Moreover, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulations Under Section 36 of the TRAI Act. Section 29 of the TRAI Act provides for penalties for contravention of directions of the TRAI. Further, Under Section 14A of the TRAI Act, it has been provided that any person may make an application before the TDSAT. With regard to the jurisdiction, Section 15 and 27 of the TRAI Act provide for explicit bar on jurisdiction of the civil courts to determine any matter with regard to which TDSAT or TRAI have been empowered by or under the TRAI Act. 50. It was submitted that in the present case, at the time RJIL filed its Information before the CCI on November 08, 2016 as also when the prima facie order was passed on April 21, 2017, TRAI was seized of the matter pertaining to provisioning of POIs and even made certain recommendations to the DoT on October 21, 2016. Accordingly, TRAI had assumed jurisdiction and was exercising the same. Thus, the dispute was being dealt with and was addressed by the TRAI and even on this ground, the jurisdiction of the CCI stands ousted. 51. The TDSAT has the exclusive jurisdiction to examine the disputes between licensees including the one raised by RJIL before CCI. This very submission on the exclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the submission that a special legislation i.e. the TRAI Act, will prevail over the provisions of the Competition Act, which according to the Respondents is general in nature, reliance has been placed on the decisions of this Court in State of Punjab v. Labour Court, Jullundur and Ors. (1980) 1 SCC 4. In the said matter, the Court was inter alia seized of the issue whether the employee-Respondents were at liberty to seek the payment of gratuity by invoking the remedy available Under Section 33-C(2) of the Industrial Disputes Act, 1947 as opposed to the Payment of Gratuity Act, 1972. In deciding the said dispute, it was held that: 7. It is apparent that the Payment of Gratuity Act enacts a complete code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. It creates the right of payment of gratuity, indicates when the right will accrue, and lays down the principles for quantification of the gratuity. It provides further for recovery of the amount, and contains an especial provision that compound interest at nine per cent per annum will be payable on delayed payment. For the enforcement of its provisions, the Act provides for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by it is a special statute and the other enactment is general. The Court held that the Rent Control Act is a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi and even the Public Premises Act is a special statute relating to eviction of unauthorised occupants from public premises. While concluding that both the enactments are special statutes, the Court held: 61....in the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. 64....In our opinion, therefore, keeping in view the object and purpose underlying both the enactments viz. the Rent Control Act and the Public Premises Act, the provisions of the Public Premises Act have to be construed as overriding the provisions contained in the Rent Control Act. 55. Heavy reliance was placed on the judgment of the United States Supreme Court in the case of Credit Suisse v. Billing et al 551 US 264 (2007). Here the submission was that if the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be done in a particular manner, all other modes of action are prohibited. (Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. (2003) 2 SCC 111) 58. In this hue, it was also argued that the decision of this Court in Competition Commission of India v. Steel Authority of India Ltd. and Anr. (2010) 10 SCC 744 has no application to the present case because it does not deal with a sector that is regulated by a statutory authority. On the other hand, reliance was placed on the judgment in the case of Carona Ltd. v. Parvathy Swaminathan & Sons (2007) 8 SCC 559. 59. It was submitted that the facts of the SAIL case are clearly distinguishable from the present case as the main issue before the Supreme Court in SAIL was whether an appeal can be filed against an order passed Under Section 26(1) of the Competition Act. Distinction was sought to be drawn on the basis of the following facts: (a) in the present case, CCI issued notice and called the TSPs including Vodafone for a preliminary conference to be held on January 31, 2017 and the parties were heard on January 31, 2017, February 07, 2017 and February 08, 2017; (b) hearing was held before CCI and detailed notes on argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited by them, even if we have not made specific mention to these judgments in our discussion. A. Jurisdiction of the CCI 63. This is the principal issue which is the bone of contention. 64. In order to discuss and analyse this aspect, it would be apt to take note of the salient provisions of the Competition Act as well as the TRAI Act inasmuch as that would facilitate appreciating the arguments so advanced. 65. In the wake of globalisation and keeping in view the economic development of the country, responding to opening of its economy and resorting to liberalisation, need was felt to enact a law that ensures fair competition in India by prohibiting trade practices which cause an appreciable adverse effect on competition within markets in India and for establishment of an expert body in the form of Competition Commission of India, which would discharge the duty of curbing negative aspects of competition, the Competition Act, 2002 has been enacted by the Parliament. 66. Having regard to this specific objective which the Act seeks to achieve, provisions contained therein, which are relevant for deciding the instant appeals, are reproduced below: 2. Definitions. - xx xx xx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, investment or provision of services; (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way; (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this Sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provisions of services. Explanation. - For the purpose of this Sub-section, "bid rigging" means by agreement, between enterprises or persons referred to in Sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding. xx xx xx 19. Inquiry into certain agreements and dominant position of enterprise. - (1) The Commission may inquire into any alleged contravention of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rima facie case, it shall direct the Director General to cause an investigation to be made into the matter: Provided that if the subject matter of an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information. (2) Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received Under Section 19, the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (3) The Director-General shall, on receipt of direction Under Sub-section (1), submit a report on his findings within such period as may be specified by the Commission. (4) The Commission may forward a copy of the report referred to in Sub-section (3) to the parties concerned: Provided that in case the investigation is caused to be made based on reference received from the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Indian Evidence Act, 1872 (1 of 1972), any public record or document or copy of such record or document from any office. xx xx xx 41. Director General to investigate contraventions. - (1) The Director General shall, when so directed by the Commission, assist the Commission in investigating into any contravention of the provisions of this Act or any Rules or Regulations made thereunder. (2) The Director General shall have all the powers as are conferred upon the Commission Under Sub-section (2) of Section 36. (3) Without prejudice to the provisions of Sub-section (2), Sections 240 and 240A of the Companies Act, 1956 (1 of 1956), so far as may be, shall apply to an investigation made by the Director General or any other person investigating under his authority, as the apply to an inspector appointed under that Act. Explanation. - For the purposes of this section, - (a) the words "the Central Government" Under Section 240 of the Companies Act, 1956 (1 of 1956) shall be construed as "the Commission"; (b) the word "Magistrate" Under Section 240A of the Companies Act, 1956 (1 of 1956) shall be construed as "the Chief Metropolitan Magistrate, Delhi". xx xx xx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Anr. (2017) 8 SCC 47 and we would like to reproduce the following passages therefrom: 21. In the instant case, we are concerned with the first type of practices, namely, anti-competitive agreements. The Act, which prohibits anti-competitive agreements, has a laudable purpose behind it. It is to ensure that there is a healthy competition in the market, 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and control the growing role of the private sector in the economy so as to ensure that public monopolies are not simply replaced by private monopolies. 2.2.3. Besides contributing to trade and investment policies, competition policy can accommodate other policy objectives (both economic and social) such as the integration of national markets and promotion of regional integration, the promotion or protection of small businesses, the promotion of technological advancement, the promotion of product and process innovation, the promotion of industrial diversification, environment protection, fighting inflation, job creation, equal treatment of workers according to race and gender or the promotion of welfare of particular consumer groups. In particular, competition policy may have a positive impact on employment policies, reducing redundant employment (which often results from inefficiencies generated by large incumbents and from the fact that more dynamic enterprises are prevented from entering the market) and favouring jobs creation by new efficient competitors. 2.2.4. Competition policy complements trade policy, industrial policy and regulatory reform. Competition policy target ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hmarking-Competition also can contribute to increased productivity by creating the possibility of benchmarking. The productivity of a monopolist cannot be measured against rivals in the same geographic market, but a dose of competition quickly will expose inferior performance. A monopolist may be content with mediocre productivity but a firm battling in a competitive market cannot afford to fall behind, especially if the investment community is benchmarking it against its rivals. 24. Productivity is increased through competition by putting pressure on firms to control costs as the producers strive to lower their production costs so that they can charge competitive prices. It also improves the quality of their goods and services so that they correspond to consumers' demands. 25. Competition law enforcement deals with anticompetitive practices arising from the acquisition or exercise of undue market power by firms that result in consumer harm in the forms of higher prices, lower quality, limited choices and lack of innovation. Enforcement provides remedies to avoid situations that will lead to decreased competition in markets. Effective enforcement is important not only to sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competition law. The main objective of competition law is to promote economic efficiency using competition as one of the means of assisting the creation of market responsive to consumer preferences. The advantages of perfect competition are threefold: allocative efficiency, which ensures the effective allocation of resources, productive efficiency, which ensures that costs of production are kept at a minimum and dynamic efficiency, which promotes innovative practices. These factors by and large have been accepted all over the world as the guiding principles for effective implementation of competition law. xx xx xx 8. The Bill sought to ensure fair competition in India by prohibiting trade practices which cause appreciable adverse effect on the competition in market within India and for this purpose establishment of a quasi-judicial body was considered essential. The other object was to curb the negative aspects of competition through such a body, namely, "the Competition Commission of India" (for short "the Commission") which has the power to perform different kinds of functions, including passing of interim orders and even awarding compensation and imposing penalty. The Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulations also empower the CCI to hold conferences with the concerned persons/parties, including their advocates/authorised persons. 69. It is also relevant to mention at this stage that while inquiring into any alleged contravention and determining whether any agreement has an appreciable adverse effect on competition, factors which are to be taken into consideration are mentioned in Sub-section (3) of Section 19. These include creation of barriers to new entrants in the market, driving existing competitors out of the market and foreclosure of competition by hindering entry into the market. All these activities have connection with the 'market'. The word 'market' has reference to 'relevant market'. As per Sub-section (5) of Section 19, such relevant market can be relevant geographic market or relevant product market. In the present case, we are concerned with the relevant product market, viz. telecommunication market. Sub-section (7) of Section 19 enumerates the factors which are to be kept in mind while determining the relevant product market. 70. Market definition is a tool to identify and define the boundaries of competition between firms. It serves to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the licensor, on the following matters, namely: xx xx xx (iv) measures to facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services; xx xx xx (b) discharge the following functions, namely: (i) ensure compliance of terms and conditions of licence; (ii) notwithstanding anything contained in the terms and conditions of the licence granted before the commencement of the Telecom Regulatory Authority of India (Amendment) Act, 2000, fix the terms and conditions of inter-connectivity between the service providers; (iii) ensure technical compatibility and effective interconnection between different service providers; (iv) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services; (v) lay-down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of such service provided by the service providers so as to protect interest of the consumers of telecommunication service; (vi) lay-down and ensure the time period for providing local and long distanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Appellate Tribunal shall have powers to regulate its own procedure. (2) The Appellate Tribunal shall have, for the purposes of discharging the 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 affidavits; (d) subject to the provisions of Section 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or a copy of such record or document, from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing an application for default or deciding it, ex parte; (h) setting aside any order of dismissal of any application for default or any order passed by it, ex parte; and (i) any other matter which may be pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one-way E1s for the Outgoing Traffic of each Party on the basis of the traffic ratio existing 3 months prior to the expiry of the initial period of two years. These E1s shall thereafter be continued as one-way E1s for the remaining term of the Agreement at the cost of RJIL..." Clause 9.1: "... A minimum notice of 4 weeks has to be given by either Party for augmentations of Interconnect Links..." Clause 9.2: "...Augmentation shall be completed within 90 days of receipt of requisite charges specified in Schedule 2 from RJIL..." Clause 9.3: "...Any request for augmentation of capacity shall be in writing with Performance reports as prescribed in Schedule 4..." Clause 9.4: "...Traffic measurements for 7 days shall be taken by both the parties during agreed busy route hours, every 6 months after commencement of traffic at the POIs to determine further capacity requirements..." Clause 9.5: "...RJIL shall provide a forecast in writing in advance for its requirement of port capacity for Telephony Traffic for the next 6 months to enable IDEA to dimension the required capacity in its network.... 21. The relevant clauses of the ICAs are: (a) Clause 2 makes clear that the ICA wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve inter-relationship between different service providers and for ensuring compliance of licence conditions by all the service providers, TRAI was constituted under the Telecom Regulatory Authority of India Act, 1997. TRAI is a recommendatory/advisory and regulatory body discharging the functions envisaged Under Sub-section (1) of Section 11 of the said Act. TRAI, inter alia, is charged with ensuring fair competition amongst service providers, including fixing the terms and conditions of entire activity between the service providers and laying down the standards of Quality of Service (QoS) to be provided by each service provider. In exercise of its functions, TRAI has issued detailed Regulations for telecom services, including fixation and revision of tariffs (Tariff Order), fixation of Inter-connect Usage Charges (IUC), prescription of quality of service standards, etc. (b) The Telecom Service Providers, which include the Respondents as well as RJIL, provide telecommunication access service and are PAN India Telecom Service Providers. They are governed by the Cellular Mobile Telephone Service (CMTS)/Unified Access Service Licence (UASL) issued by the Telecommunications Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within 90 days of receipt of requisite charges specified in the Schedule. Either party shall provide a forecast in writing, in advance for its requirements of port capacity for "Telephony Traffic" for the next six months to enable the other party to dimension the required capacity in its network. The interconnection tests for reach and every interface will be carried out by mutual arrangement between signatories of the agreement. By virtue of the licence, the licensee is obligated to ensure quality of service as prescribed by the licensor or TRAI and failure on their part to adhere to the quality of service stipulated by TRAI would make the licensor liable to be treated for breach of the terms and conditions of the licence. In order to render effective services, it is mandatory for the licensee to interconnect/provide POIs to all eligible telecom service providers to ensure that calls are completed to all destinations and interconnection agreement is entered into between the different service 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic sector and some of the key industries like aviation, insurance, railways, electricity/power, telecommunication, etc. were monopolised by the State. Licence/permit raj prevailed during this period with strict control of the Government even in respect of those industries where private sectors were allowed to operate. However, Indian economy experienced major policy changes in early 90s on LPG Model i.e. liberalisation, privatisation and globalisation. With the onset of reforms to liberalise the Indian economy, in July 1991, a new chapter has dawned for India. This period of economic transition has had a tremendous impact on the overall economic development of almost all major sectors of the economy. 88. When we have a liberal economy which is regulated by the market forces (that is why it is also termed as market economy), prices of goods and services in such an economy are determined in a free price system set up by supply and demand. This is often contrasted with a planned economy in which a Central Government determines the price of goods and services using a fixed price system. Market economies are also contrasted with mixed economy where the price system is not entirely fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... participation of the companies registered in India in the area of basic as well as value added telecom services as also making arrangements for protection and promotion of consumer interest and ensuring fair competition, there is a felt need to separate regulatory functions from service providing functions which will be in keeping with the general trend in the world. In the multi-operator situation arising out of opening of basic as well as value added services in which private operator will be competing with Government operators, there is a pressing need for an independent telecom regulatory body for Regulation of telecom services for orderly and healthy growth of telecommunication infrastructure apart from protection of consumer interest. xx xx xx 4. The powers and functions of the Authority, inter alia, are.- (i) ensuring technical compatibility and effective inter-relationship between different service providers; (ii) Regulation of arrangement amongst service providers of sharing their revenue derived from providing telecommunication services; (iii) ensuring compliance of licence conditions by all service providers; (iv) protection of the interest of the consumers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er series was already allotted. (v) As per the DoT Circular dated August 29, 2005 test customers are not considered as subscribers and test customers can only be in the form of business partners. It was highlighted that problem, if any, of congestion has been suffered on account of provisioning of full-fledged services during test phase. (vi) RJIL in its complaint before the TRAI was not considering the period of 90 days as was prescribed in the Interconnection Agreement. It was instead proceeding on the basis that the demand for POIs should be met on an immediate basis. (vii) There was several errors in the forecast made by RJIL. (viii) The tables given by the RJIL are wrong as they take into account its total demand at the end of nine months against what was actually provided. 82. Learned Counsel appearing for the IDOs had also argued that the first firm demand for provisioning of POIs was made by RJIL on June 21, 2016. According to the IDOs, in that letter, RJIL had expressly admitted that it was under test phase and had not commenced 'commercial services'. RJIL had also stated that the demand for POIs was being made to 'provide seemless connectivity to targ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid issues. After all, RJIL's grievance is that inter-connectivity is not provided by the IDOs in terms of the licenses granted to them. TRAI Act and Regulations framed thereunder make detailed provisions dealing with intense obligations of the service providers for providing POIS. These provisions also deal as to when, how and in what manner POIs are to be provisioned. They also stipulate the charges to be realised for POIs that are to be provided to another service provider. Even the consequences for breach of such obligations are mentioned. 84. We, therefore, are of the opinion that the High Court is right in concluding that till the jurisdictional issues are straightened and answered by the TRAI which would bring on record findings on the aforesaid aspects, the CCI is ill-equipped to proceed in the matter. Having regard to the aforesaid nature 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition Act as the Competition Act is general in nature. It is also argued that even if the Competition Act is treated as a special statute, between the two special statutes the TRAI Act would prevail as it is a complete code in itself which regulates the telecom sector in its entirety, including the aspects of competition. 88. Such a submission, on a cursory glance, may appear to be attractive. However, the matter cannot be examined by looking into the provisions of the TRAI Act alone. Comparison of the regimes and purpose behind the two Acts becomes essential to find an answer to this issue. We have discussed the scope and ambit of the TRAI Act in the given context as well as the functions of the TRAI. No doubt, we have accepted that insofar as the telecom sector is concerned, the issues which arise and are to be examined in the context of the TRAI Act and related regime need to be examined by the TRAI. At the same time, it is also imperative that specific purpose behind the Competition Act is kept in mind. This has been taken note of and discussed in the earlier part of the judgment. As pointed out above, the Competition Act frowns the anti-competitive agreements. It deals with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abuse of dominant position. The following kinds of orders can be passed by the CCI under this provision: 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point where sufficient new entry is induced thereby promoting genuine competition. This specific and important role assigned to the CCI cannot be completely wished away and the 'comity' between the sectoral regulator (i.e. TRAI) and the market regulator (i.e. the CCI) is to be maintained. 91. The conclusion of the aforesaid discussion is to give primacy to the respective objections of the two regulators under the two Acts. At the same time, since the matter pertains to the telecom sector which 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 the TRAI which lead to the prima facie conclusion that the IDOs have indulged in anti-competitive practices, the CCI can be activated to investigate the matter going by the criteria laid down in the relevant provisions of the Competition Act and take it to its logical conclusion. This balanced approach in construing the two Acts would take care of Section 60 of the Competition Act as well. 92. We, thus, do not agree with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as an administrative order since it was passed by the CCI after collecting the detailed information from the parties and by holding the conferences, calling material details, documents, affidavits and by recording the opinion. It was submitted that judicial review against such an order is permissible and it was open to the Respondents to point out that the complete material, as submitted by the Respondents, was not taken into consideration which resulted in an erroneous order, which had adverse civil consequences inasmuch as the Respondents were subjected to further investigation by the Director General. 94. We may mention at the outset that in the case of Steel Authority of India Limited, nature of the order passed by the CCI Under Section 26(1) of the Competition Act (here also we are concerned with an order which is passed Under Section 26(1) of the Competition Act) was gone into. The Court, in no uncertain terms, held that such an order would be an administrative order and not a quasi-judicial order. It can be discerned from paragraphs 94, 97 and 98 of the said judgment, which are as under: 94. The Tribunal, in the impugned judgment, has taken the view that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g into any adjudicatory or determinative process and by recording minimum reasons substantiating the formation of such opinion, while all its other orders and decisions should be well reasoned. 98. Such an approach can also be justified with reference to Regulation 20(4), which requires the Director General to record, in his report, findings on each of the allegations made by a party in the intimation or reference submitted to the Commission and sent for investigation to the Director General, as the case may be, together with all evidence and documents collected during investigation. The inevitable consequence is that the Commission is similarly expected to write appropriate reasons on every issue while passing an order Under Sections 26 to 28 of the Act. 95. There is no reason to take a contrary view. Therefore, we are not inclined to refer the matter to a larger Bench for reconsideration. 96. It was, however, argued that since the case of Steel Authority of India Limited was not dealing with the telecom sector, which is regulated by the statutory regulator, namely, TRAI under the TRAI Act, that judgment would not be applicable. Merely because the present case deals with the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate court or an inferior tribunal cannot confer upon itself jurisdiction which it otherwise does not posses. 28. In Halsbury's Laws of England (4th Edn.), Vol. 1, Para 55, p. 61; Reissue, Vol. 1(1), Para 68, pp. 114-15, it has been stated: Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive. The existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a court or tribunal. xx xx xx 36. It is thus clear that for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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