TMI Blog2018 (12) TMI 1683X X X X Extracts X X X X X X X X Extracts X X X X ..... egative aspects of competition, the Competition Act, 2002 has been enacted by the Parliament - the CCI is entrusted with duties, powers and functions to deal with three kinds of anti-competitive practices. The purpose is to eliminate such practices which are having adverse effect on the competition, to promote and sustain competition and to protect the interest of the consumers and ensure freedom of trade, carried on by the other participants, in India. For the purpose of conducting such an inquiry, the CCI is empowered to call any person for rendering assistance and/or produce the records/material for arriving at even the prima facie opinion. The Regulations also empower the CCI to hold conferences with the concerned persons/parties, including their advocates/authorised persons. The functioning of the telecom companies which are granted licence Under Section 4 of the Telegraph Act is regulated by the provisions contained in the TRAI Act. TRAI is a regulator which regulates the telecom industry, which is a statutory body created under the TRAI Act - with the advent of globalisation/liberalisation leading to free market economy, regulators in respect of each sector have assumed g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the CCI could exercise jurisdiction only after proceedings under the TRAI Act had concluded/attained finality, i.e. only after the TRAI returns its findings on the jurisdictional aspects which are mentioned above by us, the ultimate direction given by the High Court quashing the order passed by the CCI is not liable to be interfered with as such an exercise carried out by the CCI was premature - appeal dismissed. - C.A. No. 11843 of 2018, 11844-11845 of 2018, 11846 of 2018, 11852 of 2018, 11847-11851 of 2018(Arising out of SLP (C) No. 35574 of 2017, 35532-35533 of 2017, 35497 of 2017, 37285-37289 of 2017, 115 of 2018 - - - Dated:- 5-12-2018 - A.K. Sikri and Ashok Bhushan, JJ. For Appearing Parties: P.S. Narasimha, ASG, Prashanto Sen, Abhishek Manu Singhvi, Ramji Srinivasan, Amit Sibal, Darius J. Khambata, S.K. Cooper, P. Chidambaram, Gopal Jain, Navroj Seervai, Siddharth Luthra, Sr. Advs., Arjun Krishnan, Dhruv Malik, V.C. Shukla, Ankur Singh, Sumit Srivastava, Sarvesh Mishra, Udayan Verma, Kamlendra, Rahul Tanwani, K.R. Sadiprabhu, Ritin Rai, Raghav Shankar, Hiten Sampat, Vishnu Sharma, Nakul Nayak, Aabhas Kshetrapal, Kritika Bhardwaj, Tushar Bhardwaj, Avish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deal with such a matter. Show-cause notices were issued pursuant to which the CCI as well as RJIL filed their counter affidavits. The matter was heard and vide judgment dated September 21, 2017 the High Court has allowed these writ petitions and quashed/set aside the order dated April 21, 2017 passed by the CCI and consequently notices issued by the Director General of the CCI have also been quashed. We may reproduce the conclusions and operative portion of the order passed by the Bombay High Court here itself, which are as under: 130. Conclusions: a) All the Writ Petitions are maintainable and entertainable. This Court has territorial jurisdiction to deal and decide the challenges so raised against impugned order (majority decision) dated 21 April 2017, passed by the Competition Commission of India (CCI) under the provisions of Section 26(1) of the Competition Act, 2002 in case Nos. 81 of 2016, 83 of 2016 and 95 of 2016 and all the consequential actions/notices of the Director General Under Section 41 of the Competition Act arising out of it. b) The telecommunication Sector/Industry/Market is governed, regulated, controlled and developed by the Authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 21 April 2017 passed by the Competition Commission of India (CCI) under the provisions of Section 26(1) of the Competition Act, 2002 and all the consequential actions/notices of the Director General Under Section 41 of the Competition Act proceeded on wrong presumption of law and usurpation of jurisdiction, unless the contract agreements, terms and clauses and/or the related issues are settled by the Authority under the TRAI Act, there is no question to initiating any proceedings under the Competition Act as contracts/agreements go to the root of the alleged controversy, even under the Competition Act. i) The Authority, like the Commission and/or Director General, has no power to deal and decide the stated breaches including of delay, denial , and congestion of POIs unless settled finally by the Authorities/TDSAT under the TRAI Act. Therefore, there is no question to initiate any inquiry and investigations Under Section 26(1) of the Competition Act. It is without jurisdiction. Even at the time of passing of final order, the Commission and the Authority, will not be in a position to deal with the contractual terms and conditions and/or any breaches, if any. The u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons , rights and obligations of TSP between and related to the above provisions , are to be settled by the Authorities/Telecom Disputes Settlement and Appellate Tribunal (TDSAT) and not by the Authorities under the Act. It has also held that the Competition Act and the TRAI Act are independent statutes and the statutory authorities under the respective Acts are to discharge their power and jurisdiction in the light of the objectives for which they are established. The Competition Act is itself not sufficient to decide and deal with the issues arising out of the provisions of the TRAI Act etc. Thus, the CCI has no jurisdiction to decide and deal with the various statutory agreements, contracts, including rival rights/obligations, of its own. The issues arising out of contract agreements, terms and clauses and/or the related issues are to be settled by the authority under the TRAI Act in the first instance and unless these issues are decided, there is no question of initiating any proceedings under the Act. In a nutshell, it is held that insofar as contracts, etc. which are regulated by the TRAI Act are concerned, in the first instance, it is the authority under the TRAI Act which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e regulated, of course, not by the Government but by an independent regulatory authority. This necessity prompted the Government to come out with regulatory regime in different sectors. For example, in insurance sector, we have regulatory authority constituted under Insurance Regulatory and Development Authority Act, 1999; for industries generating electricity, there is an electricity regulatory authority constituted under the Electricity Act, 2003; and for telecom sector, with which we are concerned, the TRAI is constituted under the provisions of TRAI Act. Secondly, this requirement to do business thereby allowing free entry to private enterprise led to competition between different players in the private sector. Competition is perceived as a phenomena which is in best public interest in so many ways. Therefore, it becomes necessary to encourage competition. At the same time, tendency of the business enterprises to adopt practices which retard healthy competition needed to be curbed. There was a governing law in the field known as Monopolistic and Restrictive Trade Practice Act, 1969. However, it was felt that a new robust statutory regime is required to take care of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oT) for providing telecommunication services in all 22 circles/licensed service areas in India. Soon thereafter, RJIL executed interconnection agreements (ICA) with existing telecom operators inter alia including, Bharti Airtel Limited and Bharti Hexagon Limited (hereinafter collectively referred to as the 'Airtel'), Idea Cellular Limited (hereinafter referred to as the 'Idea'); Vodafone India Limited/Vodafone Mobile Services Limited (hereinafter collectively referred to as the 'Vodafone'). RJIL commenced test trial of its services after intimation and approval of the DoT and TRAI. 9. By its 'firm demand' letter of June 21, 2016, RJIL vide separate letters requested IDOs to augment Point of Interconnection (POIs) for access, National Long Distance (NLD) and International Long Distance (ILD) services, as according to it, the capacity already provided to it was causing huge POI congestion, resulting in call failures on its network. According to RJIL, these companies intentionally ignored the aforesaid request. Accordingly, RJIL sent a letter dated July 14, 2016 to TRAI stating that the POIs provided by IDOs are substantially inadequate and lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the representatives of RJIL and other service providers (Respondents herein) to sort out and resolve the differences in the interest of the consumers. At the same time, in the said meeting, the three telecom operators (Respondents herein) also raised a grievance that free calls being provided by RJIL has resulted in an unprecedented traffic congestion on their respective networks and the current IUC regime is inadequate to cover the cost of efficiently maintaining such high traffic. Thereafter, vide letter dated September 14, 2016, addressed by Airtel to RJIL, it stated that the POIs (also known as E1s) would be converted into 50:50 ratio to outgoing and incoming E1s. In other words, the E1s provided would be converted to 'only outgoing' or 'only incoming' i.e. one-way E1s. RJIL replied by stating that it was acceptable to them. 11. Soon thereafter, i.e. in September 2016 itself, Mr. Rajan Sardana, a Chartered Accountant, filed information Under Section 19 of the Competition Act (registered as Case No. 81 of 2016) and similar application was filed by Justice K.A. Puj (retired) (registered as Case No. 83 of 2016). Then, it was followed by information U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - on Idea for its rejection of mobile number portability (MNP) requests to RJIL's network. Against the aforesaid recommendation, Idea has preferred a Writ Petition being Writ Petition (C) No. 685 of 2017 before the High Court at Delhi. The DoT after examining the matter referred it back to TRAI for fresh consideration vide DoT's reference dated April 05, 2017 whereby its recommendations imposing penalty upon IDOs were sent back for reconsideration. The TRAI sent its response dated May 24, 2017 to the DoT, wherein it took a categorical stand that telecom operators have intentionally denied and delayed the augmentation of POIs to RJIL. Proceedings before CCI: 14. The CCI took the cognizance of the three informations given to it Under Section 19 of the Competition Act which were registered as Case Nos. 81, 83 and 95 of 2016. It gave hearing to the Respondents service providers as well as COAI and passed order dated April 21, 2017 Under Section 26(1) of the Competition Act as per which it came to a prima facie conclusion that case for investigation was made out and directed the Director General to cause investigation in the case. This order was passed by major ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of opinion on the merits of the case and DG shall conduct the investigation without being swayed in any manner whatsoever by the observations made herein. 15. Likewise, two members who dissented inter alia held as follows: ...As stated above, from the various charts placed on record by the ITOs showing the number of POIs provided by them to RJIL, the respective learned senior Counsel for Ops have tried to show that the number of POIs provided to RJIL by 08.11.2016 i.e. within the first quarter itself, were much more than what was demanded. In fact, the charts filed by RJIL itself corroborate this fact. The charts show that even if some of the POIs provided (one-way POIs for connecting outgoing calls from ITOs to RJIL) are not taken into consideration, the number of POIs provided by OP-5 and OP-7 were much more than what was demanded by RJIL. Even in case of OP-2, the same were approximately 64% (NLD POIs) and 85.53% (Access POIs) as on 08.11.2016. However, as we have already observed above, we are not expected to go into the question of providing adequate number of POIs. Yet there is ample material on record to show that RJIL was more to be blamed for congestion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... member, i.e. RJIL, and not for the common interest of the industry and consumers as a whole. Proceedings before the High Court: 18. Against the order passed by the CCI directing investigation into the aforesaid allegations, in the writ petitions filed by the IDOs and also by COAI, challenge laid to the aforesaid order was premised on the ground that the CCI lacked jurisdiction to entertain such complaints/information filed Under Section 19 of the Competition Act as such a matter falls within the exclusive jurisdiction of another regulatory authority, namely, TRAI. 19. In nutshell, it was pleaded that the violation alleged by RJIL, namely, whether there was a delay or denial in provisioning POIs, comes within the domain of TRAI as it is the TRAI which has the exclusive jurisdiction to deal with such a matter under the TRAI Act and, in fact, the complaint was also made by TRAI as well which was seized of the matter. 20. The plea of the Appellants, on the other hand, was that violation of telecom Regulations, etc. was undoubtedly a matter which could be looked into by the TRAI for which RJIL has approached the TRAI. However, the subject matter of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCI had granted a hearing. (iii) The order of CCI was not perverse and the High Court erred in giving findings on merits. The High Court erroneously exercised writ jurisdiction. 23. With respect to the first proposition, his argument was that the High Court had failed to appreciate that issues before the CCI are altogether different than the issues before the TRAI and they necessarily be treated differently. He argued that the CCI and TRAI operate in entirely different fields, which is discernible from the Preambles of the respective legislations. The TRAI Act was supposed to enable it to regulate the telecommunication services, adjudicate dispute, dispose of appeals and protect the interests of service providers and consumers of the telecom sector, to promote and ensure orderly growth of the telecom sector. The CCI, on the other hand, is a body that has been established to prevent practices having an adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India. 24. Mr. Narasimha emphasised that the issue before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tandards of QoS of Basic Telephone Service (Wireline) and Cellular Mobile Telephone Service Regulations, 2009. Thus, TRAI as a sectoral regulator, has held the said conduct of ITOs in violation of relevant TRAI Regulations and recommended penal action against them. However, the recommendations of TRAI is in respect of violations of the provisions of License Agreements and the Standards of QoS of Basic Telephone Service (Wireline) and Cellular Mobile Telephone Service Regulations, 2009 by these OPs. Against this, mandate of the Commission Under Section 18 of the Act is '...to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India.' Accordingly, it becomes the duty and responsibility of the Commission to eliminate practices in the market that have an adverse effect on competition and promote and sustain competition so as to protect the interest of consumers and ensure freedom of trade. Further, as per Section 62 of the Act, provisions of the Act are in addition to and not in derogation of the provisions of any other law for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issues which affect competition in markets in India, including that of an alleged cartelization amongst enterprises/associations. The nature of the proceedings before TRAI involving ITOs on the other hand different and related to whether interconnection norms and quality of service Regulations are complied with or whether the contractual terms of ICAs have been breached or met. Palpably, these issues are not relevant for determination in the current proceedings before the Commission. 12. The informants have alleged that the conduct of ITOs amounts to a cartel in relation to denial of POIs to RJIL. The definition of cartel has been provided Under Section 2(c) of the Act which reads as follows: 'cartel includes 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.' Further, any alleged agreement amongst enterprises and an association of enterprises, engaged in identical or similar trade or provision of services is covered Under Section 3(3) of the act which states that: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be a subject-matter of judicial review by the MRTP Commission. The two Acts substantially operate in different fields and the following table brings out some of the distinctions between the MRTP Act and the anti-dumping provisions: [table omitted] A perusal of the above chart indicates that the two statutes and regimes operate in different and distinct spheres and there is no conflict between the two regimes/statutes. Hence, the question of implied repeal of the provisions of Section 33(1)(j) of the MRTP Act, 1969 on account of the provisions of Section 9-A of the Customs Tariff Act, 1975 does not arise. 53. It is thus seen that the provisions relating to antidumping contained in the Customs Tariff Act do not in any way affect the power or jurisdiction of the MRTP Commission. The Import Control Act and the Customs Tariff Act on the one hand and the MRTP Act on the other operate in different independent fields and the authority under one has no jurisdiction over the other. In other words, their paths do not cross each other. While the provisions of the Anti-Dumping Act are concerned with the levy of anti-dumping duty, the MRTP Act in the present case wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that has happened, the CCI is empowered to issue directions in terms of Section 27 of the Act and also impose penalties. It has power to impose even lesser penalties as provided in Section 46 of the Act. 28. Mr. Narasimha also referred to Section 60 of the Act which provides for overriding effect for the Act and reads as under: 60. 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. It was emphasised that the case of the CCI is not that the TRAI does not have power to exercise jurisdiction at all in the present factual matrix and there is no conflict of jurisdiction or legal regimes. Rather, both the TRAI and the CCI exercise their jurisdiction in their respective fields. Exercise of jurisdiction by the CCI to investigate an alleged cartel does not impinge upon TRAI's jurisdiction to regulate the industry in any way. Submission in this behalf was that the TRAI exercises its jurisdiction by ensuring compliance with the interconnect agreements, license conditions, interconnection Regulations, quality of service norms and Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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. 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 across sectors as regards competition issues. On the other hand, the CCI, which is expected to have developed the core competence, expertise and capacity in competition related issues, will be able to apply uniform competition principles across all sectors of economy. Besides, enforcement and penalizing violations of Competition Act is the exclusive area of the CCI. Even otherwise, the general principle for economic efficiency would be, whoever can do a thing in best and most professional manner should do it. 29. The learned ASG, on taking support from the above, submitted that the sectoral regulators, by contrast, will not be as experienced in conducting competition analysis as the competition authorities. Being susceptible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restriction on the court to take cognizance of any offence punishable under the Act or any Rule made thereunder except upon a complaint made by a person authorised in this behalf. It is very important to note that Section 21 does not begin with a non obstante clause. Instead of the words notwithstanding anything contained in any law for the time being in force no court shall take cognizance.... , the Section begins with the words no court shall take cognizance of any offence. 63. It is well known that a non obstante Clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. 30. He also premised his argument on the basis that the Act is a special statute in the field of telecommunications Regulation, including technical aspects connected thereto, and in case of conflict between two special legislations, the later enactment would prevail. In Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. and Ors. (2001) 3 SCC 71, this Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction of the Monopolies and Restrictive Trade Practices Commission (MRTP Commission). He submitted that this was another indicator in the TRAI Act itself from which it can be inferred that when it comes to anticompetitive practices, an embargo is put on the TRAI to deal with such practices, inasmuch as the Competition Act is enacted to repeal and replace the obsolete regime of the MRTP Act. In this behalf, he drew sustenance from Section 8 of the General Clauses Act to submit that the Competition Act could be read in place of MRTP Act while construing the provisions of Section 14 of the TRAI Act. 32. His another submission, in this hue, was that a distinction needs to be drawn between facilitating competition (as provided in Section 11 of the TRAI Act) on the one hand and curbing and deterring anti-competitive conduct and practices on the other hand. His submission in this behalf was that the function of the TRAI Under Section 11(1)(a)(iv) was to facilitate competition which was purely recommendatory in nature and not part of regulatory function of the TRAI, as held in Union of India and Anr. v. Association of Unified Telecom Service Providers of India and Ors. (2011) 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er given by Mr. Narasimha was that this approach was erroneous for three reasons. First, the High Court has failed to appreciate the different fields/domains in which the CCI and the TRAI operate. Secondly, the course of action proposed by the High Court would result in considerable delay defeating the CCI's investigation. Thirdly, the High Court has failed to notice the role played by Section 21A of the Act. 37. He again emphasised that CCI is not inquiring into the adequacy of POIs provided to RJIL by the Respondents, or compliance with the QoS standards of TRAI and licence conditions, but was examining whether the conduct of the Respondents was unilateral or it was the result of anti-competitive agreement. Insofar as requirement of speedy investigation by the CCI is concerned, he submitted that such a requirement has already been acknowledged and mandated by this Court in Competition Commission of India v. Steel Authority of India Limited and Anr. (2010) 10 SCC 744. Further, if at any stage, prior to or after taking a decision, the CCI is of the view that opinion of TRAI is required, it could always make reference Under Section 21A of the Competition Act. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision, conclusion or order passed on merits by the Commission, it is expected that the same would be supported by some reasoning. At the stage of forming a prima facie view, as required Under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General. Such view should be recorded with reference to the information furnished to the Commission. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the Commission under the various provisions of the Act, as aforereferred. However, other decisions and orders, which are not directions simpliciter and determining the rights of the parties, should be well reasoned analysing and deciding the rival contentions raised before the Commission by the parties. In other words, the Commission is expected to express prima facie view in terms of Section 26(1) of the Act, without entering into any adjudicatory or determinative process and by recording minimum reasons substantiating the formation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... great suspicion in view of the fact that by its very nature an association of competing enterprises provides a convenient platform for such competitors to assemble together. 43. The involvement of COAI was sought to be proved by arguing that the IDOs have not argued that COAI letters must be ignored since the decision to provide or not to provide POIs to its competitor was taken by each of them independently either Airtel by itself, or Vodafone by itself, or Idea by itself. But the facts of the case disclose active involvement by that common platform called COAI. As per the Reliance Jio, the COAI admittedly facilitated exchange of information between the three IDOs. It draws references in its response to private letters exchanged between Reliance Jio and each of the IDOs separately. The decisions of the COAI are not decisions of a majority comprising of a large and diverse pool of members that could suggest a democratic decision making. By its very constitution, the COAI's majority views were nothing but the common views of the three IDOs that controlled it. It was also argued that in the preliminary conference and in the High Court defence raised was that COAI was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtain favourable legislation. The restraint of trade that was implemented while the boycott lasted would have had precisely the same anticompetitive consequences during that period even if no legislation had been enacted. In Noerr, the desired legislation would have created the restraint on the truckers' competition; in this case the emergency legislative response to the boycott put an end to the restraint. 44. On the submission that the dangers of a trade association being hijacked to further the cause of only a few competitors and yet attempt to give the entire exercise a veneer of respectability has been also commented upon in the recent decision of this Court in Competition Commission of India v. Coordination Committee of Artistes and Technicians of West Bengal Film and Television and Ors. (2017) 5 SCC 17 wherein it has been observed that: 47. In the instant case, admittedly the Coordination Committee, which may be a person as per the definition contained in Section 2(l) of the Act, is not undertaking any economic activity by itself. Therefore, if we were to look into the agreement of such a person i.e. Coordination Committee, it may not fall Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Constitution, as professed by the Coordination Committee, is also not available. Arguments: The Respondents: 45. Mr. Darius J. Khambata, senior advocate, appeared on behalf of Idea Cellular Ltd. Mr. Gopal Jain and Mr. Navroz Seervai, senior advocates, appeared on behalf of Bharti Airtel Ltd. Mr. Ranjit Kumar, Mr. Arvind Datar and Mr. Sidharth Luthra, senior advocates, appeared on behalf of Vodafone India Ltd. Mr. P. Chidambaram, senior advocate, appeared on behalf of the COAI. TRAI had also intervened in the matter and supported the legal submission of the IDOs, namely, that TRAI had the exclusive jurisdiction to deal with the matter, i.e. there was a complete absence of jurisdiction in CCI to deal with the issue at hand. Instead of taking note of the submissions of these counsel separately, we are taking note of the submissions in a consolidated manner as that would avoid repetition. 46. The submissions of the Respondents can be paraphrased as under: (i) The TRAI Act, being a special law, ousts the jurisdiction of CCI to examine the telecom sector. In that sense, exclusive jurisdiction vests in TRAI to regulate the telecom sector, inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation infrastructure. Moreover, the competition in the telecom sector is of a different kind as it has to function under the constant monitoring and Regulation of TRAI. TRAI effectively plays the role of a watchdog of the sector as otherwise the entire sector would collapse if there is no interdependence between the telecom operators. Moreover, Under Section 11(1)(a)(iv) of the TRAI Act, the authority is required to take measures to facilitate competition in the market. CCI can ensure competition only in an unregulated sector and not in the likes of the telecom sector wherein even the tariffs are capped/determined by TRAI. 48. On the aforesaid basis, the submission was that: (a) The TRAI Act is a complete code. (b) Exclusive jurisdiction vests in TRAI to regulate the telecom sector including competition related issues. (c) The TDSAT has the exclusive jurisdiction to examine the disputes between licensees including the one raised by RJIL before CCI. (d) CCI has no jurisdiction to decide disputes pertaining to the telecom sector. In this hue it was submitted that the Statement of Objects and Reasons of the TRAI Act made it abundan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putes between licensees including the one raised by RJIL before CCI. This very submission on the exclusion of CCI's jurisdiction was sought to be projected from another angle. It was submitted that in the Information filed by RJIL before the CCI, Reliance Jio stressed: (a) The dispute raised by RJIL before the CCI pertains to the specific performance of the Interconnect Agreement and the rights and liabilities arising therefrom; (b) The Interconnect Agreement is completely regulated by the TRAI inter alia Under Section 11(1)(b)(ii), (iii), (iv) of the TRAI Act read with the Quality of Service Regulations, 2009 issued thereunder. The argument was that the prayers sought by RJIL in the Information filed before the CCI clearly demonstrate that RJIL was seeking specific performance of the Interconnect Agreement. Hence, RJIL has dressed up what is essentially a contractual complaint into anti-competition clothing. In the present dispute, upon a meaningful reading of the Information it can clearly be seen that through clever drafting, RJIL has dressed up the allegations of delay/denial of the POIs as alleged anti-competitive behaviour. In this behalf, relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 the appointment of a controlling authority, who is entrusted with the task of administering the Act. The fulfilment of the rights and obligations of the parties are made his responsibility, and he has been invested with an amplitude of power for the full discharge of that responsibility. Any error committed by him can be corrected in appeal by the appropriate Government or an Appellate Authority particularly constituted under the Act. 8. Upon all these considerations, the conclusion is inescapable that Parliament intended that proceedings for payment of gratuity due under the Payment of Gratuity Act must be taken under that Act and not under any other. That being so, it must be held that the applications filed by the employee Respondents Under Section 33-C(2) of the Industrial Disputes Act did not lie, and the Labour Court had no jurisdiction to entertain and dispose of them. On that ground, this appeal must succeed. 53. Applying the aforesaid tests to the present case, the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 CCI is permitted to examine the information of RJIL that it was to be provided POIs immediately despite there being a period of 90 days in the ICA, the following would be the consequences: (i) The same may cause a threat and may alter the functioning of telecom sector on account of threat of intervention of CCI even where the acts are in accordance with TRAI's Regulations. The same would threaten efficient functioning of the telecom sector. (ii) The additional benefits to competition would be very small as the TRAI Regulations anyway have been framed keeping in mind facilitation of competition in telecom sector. (iii) The same would encourage future actions before CCI when telecom related issues will be dressed up as competition issues. It was the fervent plea that in order to avoid such conflict of standards and norms, the TRAI Act being the sectoral law and the TRAI is already seized of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 arguments were submitted with supporting documents by the TSPs including Vodafone; (c) the prima facie order has been passed after hearing the submissions of the TSPs holding that a prima facie case of violation of the Competition Act has been made out; and (d) the prima facie order also provide for reasons in support of the decision arrived at by the CCI. 60. Justifying the observations of the High Court that the order of the CCI cannot be treated as an 'administrative order', it was submitted that the order 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 also submitted that the High Court had rightly noted that majority decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect 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 (b) agreement includes any arrangement or understanding or action in concert, - (i) whether or not, such arrangement, understanding or action is formal or in writing; or (ii) whether or not such arrangement, understanding or action is intended to be enforceable by legal proceedings; xx xx xx (c) cartel includes 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; xx xx xx (g) Director General means the Director-General appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficiency 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 provisions contained in Sub-section (1) of Section 3 or Sub-section (1) of Section 4 either on its own motion or on - (a) receipt of any information, in such manner and accompanied by such fee as may be determined by Regulations, from any person, consumer or their association or trade association; or (b) a reference made to it by the Central Government or a State Government or a statutory authority. (2) Without prejudice to the provisions contained in Sub-section (1), the powers and functions of the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Central Government or the State Government or the statutory authority, the Commission shall forward a copy of the report referred to in Sub-section (3) to the Central Government or the State Government or the statutory authority, as the case may be. (5) If the report of the Director General referred to in Sub-section (3) recommends that there is no contravention of the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 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 45. Penalty for offences in relation to furnishing of information. - (1) Without prejudice to the provisions of Section 44, if a person, who furnishes or is required to furnish under this act any particulars, documents or any informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 consumer welfare. How these benefits accrue is explained in the ASEAN Regional Guidelines on Competition Policy, in the following manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c 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 targets business conduct that limits market access and which reduces actual an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 sanction an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the common objectives of 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 compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material for arriving at even the prima facie opinion. The Regulations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Authority shall be to - (a) make recommendations, either suo motu or on a request from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Act, 1885 (13 of 1885); (b) hear and dispose of appeal against any direction, decision or order of the Authority under this Act. xx xx xx 16. Procedure and powers of Appellate Tribunal. - (1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ICAs are as under: Clause 2.4: ...RJIL will be required to establish Interconnection at the Switches of IDEA as listed in Schedule I. In addition to these specified locations, the Parties may further agree to interconnect at an additional location(s) as mutually agreed to by and between the parties during the term of this Agreement... Clause 5.7: ...At the end of two years, the Parties shall convert the total E1s existing at the POIs into 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 measureme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lephone Service Regulations, 2009 includes Cellular Mobile Telephone Services. The terms Point of Interconnection (POI) , Quality of Service (QoS) , Service Provider, Telecommunication services have been defined in the Regulations. The term POI congestion is also described in 3.12 and 4.7 of POI. 73. Some of the features which govern the telecommunication industry and noted by the High Court may also be captured at this stage. These are: (a) To protect the interest of the service providers and consumers of the telecom sector and to permit and ensure technical compatibility and effective 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 Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) to meet all reasonable demand for the transmission and reception of messages between the interconnect systems; (b) to establish and maintain such one or more POIs as are reasonably required and are of sufficient capacity and in sufficient numbers to enable transmission and reception of the messages by means of applicable systems; and (c) to connect and keep connected to the applicable systems. Some of the other clauses of the interconnection agreement are as follows: A minimum four weeks' written notice has to be given by either party for augmentation of interconnect links. Augmentation shall be completed 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 quali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons contained in the TRAI Act. TRAI is a regulator which regulates the telecom industry, which is a statutory body created under the TRAI Act. The necessity of such regulators has been emphasised by a Constitution Bench of this Court in Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors. (2016) 7 SCC 353 in the following words: Need for regulatory mechanism 87. Regulatory mechanism, or what is called regulatory economics, is the order of the day. In the last 60-70 years, economic policy of this country has travelled from laissez faire to mixed economy to the present era of liberal economy with regulatory regime. With the advent of mixed economy, there was mushrooming of the public 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. Wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also supposed to provide guidance to the telecom/mobile market. 'Introduction' to the TRAI Act itself mentions that due to tremendous growth in the services it was considered essential to regulate the telecommunication services by a regulatory body which should be fully empowered to control the services, in the best interest of the country as well as the service providers. Likewise, the Statement of Objects and Reasons of this Act, inter alia, stipulates as under: 1. In the context of the National Telecom Policy, 1994, which amongst other things, stresses on achieving the universal service, bringing the quality of telecom services to world standards, provisions of 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 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 ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this dispute which has arisen between various service providers, namely, RJIL on the one hand and the IDOs on the other, wherein COAI is also roped in. TRAI is seized of this particular dispute. 81. It is a matter of record that before the TRAI, IDOs have refuted the aforesaid claim of RJIL. Their submission is that not only required POIs were provided to RJIL, it is the RJIL which is in breach as it was making unreasonable and excessive demand for POIs. It is specifically pleaded by the IDOs that: (i) RJIL raised its demand for POIs for the first time on June 21, 2016. (ii) In the letter dated June 21, 2016, it was admitted that RJIL was in test phase. (iii) There was no express mention of any commercial launch date. (iv) As per the letter, immediately on commercial launch RJIL would have a 22mn subscriber base for which number 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-fle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken further even if we proceed on the assumption that the CCI has the jurisdiction to deal with the complaints/information filed before it. It needs to be reiterated that RJIL has approached the DoT in relation to its alleged grievance of augmentation of POIs which in turn had informed RJIL vide letter dated September 06, 2016 that the matter related to inter-connectivity between service providers is within the purview of TRAI. RJIL thereafter approached TRAI; TRAI intervened and issued show-cause notice dated September 27, 2016; and post issuance of show-cause notice and directions, TRAI issued recommendations dated October 21, 2016 on the issue of inter-connection and provisioning of POIs to RJIL. The sectoral authorities are, therefore, seized of the matter. TRAI, being a specialised sectoral regulator and also armed with sufficient power to ensure fair, non-discriminatory and competitive market in the telecom sector, is better suited to decide the 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e TRAI which should decide these jurisdictional issues, which come within the domain of the TRAI Act as they not only arise out of the telecom licenses granted to the service providers, the service providers are governed by the TRAI Act and are supposed to follow various Regulations and directions issued by the TRAI itself. 86. This takes us to the next level of the issue, viz. whether TRAI has the exclusive jurisdiction to deal with matters involving anticompetitive practices to the exclusion of CCI altogether because of the reason that the matter pertains to telecom sector? 87. The IDOs have argued that not only TRAI is an expert body which can deal with these issues and has been assigned this function specifically under the TRAI Act, even the anti-competitive aspects of telecom sector are specifically assigned to the TRAI in the TRAI Act itself. On that premise the submission is that the TRAI Act is a special legislation which prevails over the provisions of the Competition 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 preva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rket in violation of Section 3(3)(b) of the Competition Act. Also, whether there was an anti-competitive agreement between the IDOs, using the platform of COAI. The CCI, therefore, is to determine whether the conduct of the parties was unilateral or it was a collective action based on an agreement. Agreement between the parties, if it was there, is pivotal to the issue. Such an exercise has to be necessarily undertaken by the CCI. In Haridas Exports, this Court held that where statutes operate in different fields and have different purposes, it cannot be said that there is an implied repeal of one by the other. The Competition Act is also a special statute which deals with anti-competition. It is also to be borne in mind that if the activity undertaken by some persons is anti-competitive and offends Section 3 of the Competition Act, the consequences thereof are provided in the Competition Act. Section 27 empowers the CCI to pass certain kinds of orders, stipulated in the said provision, after inquiry into the agreements for 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCI is to take into consideration the provisions contained in the Competition Act, including Section 29 thereof. Sections 45 and 46 also authorise the CCI to impose penalties in certain situations. 90. Obviously, all the aforesaid functions not only come within the domain of the CCI, TRAI is not at all equipped to deal with the same. Even if TRAI also 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. If such activities offend the provisions of the Competition Act as well, the consequences under that Act would also follow. Therefore, contention of the IDOs that the jurisdiction of the CCI stands totally ousted cannot be accepted. Insofar as the nuanced exercise from the stand point of Competition Act is concerned, the CCI is the experienced body in conducting competition analysis. Further, the CCI is more likely to opt for structural remedies which would lead the sector to evolve a point where sufficient new entry is induced thereby promoting genuine compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t bar the jurisdiction of CCI altogether but only pushes it to a later stage, after the TRAI has undertaken necessary exercise in the first place, which it is more suitable to carry out. B. Whether the writ petitions filed before the High Court of Bombay were maintainable? 93. Here comes the scope of judicial interference Under Article 226 of the Constitution. As per the RJIL as well as CCI, the High Court could not have entertained the writ petition against an order passed Under Section 26(1) of the Competition Act which was a pure administrative order and was only a prima facie view expressed therein, and did not result in serious adverse consequences. It was submitted that the finding of the High Court that such an order was quasi-judicial order is not only erroneous but it is contrary to the law laid down in the case of Steel Authority of India Limited. The Respondents, on the other hand, have submitted that the judgment in the above case had no application in the instant case as it did not deal with the sector that is regulated by a statutory authority. Moreover, such an order was quasi-judicial in nature and cannot be treated as an administrative order since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appealable before the Tribunal. Even if it is a direction under any of the provisions and not a decision, conclusion or order passed on merits by the Commission, it is expected that the same would be supported by some reasoning. At the stage of forming a prima facie view, as required Under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General. Such view should be recorded with reference to the information furnished to the Commission. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the Commission under the various provisions of the Act, as aforereferred. However, other decisions and orders, which are not directions simpliciter and determining the rights of the parties, should be well reasoned analysing and deciding the rival contentions raised before the Commission by the parties. In other words, the Commission is expected to express prima facie view in terms of Section 26(1) of the Act, without entering into any adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the fact as to paid-up share capital of rupees one crore or more of a company is a jurisdictional fact and in absence of such fact, the court has no jurisdiction to proceed on the basis that the Rent Act is not applicable. The learned Counsel is right. The fact as to paid-up share capital of a company can be said to be a preliminary or jurisdictional fact and said fact would confer jurisdiction on the court to consider the question whether the provisions of the Rent Act were applicable. The question, however, is whether in the present case, the learned Counsel for the Appellant tenant is right in submitting that the jurisdictional fact did not exist and the Rent Act was, therefore, applicable. 27. Stated simply, the fact or facts upon which the jurisdiction of a court, a tribunal or an authority depends can be said to be a jurisdictional fact . If the jurisdictional fact exists, a court, tribunal or authority has jurisdiction to decide other issues. If such fact does not exist, a court, tribunal or authority cannot act. It is also well settled that a court or a tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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