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TMI Blog2017 (9) TMI 1926X X X X Extracts X X X X X X X X Extracts X X X X ..... inst them. The consequent show cause notices issued by the Director General ("DG"), are also challenged. 3. We are disposing of all these Writ Petitions finally, by consent of the parties, by this common Judgment/Order as the issues are common and they are based on identical facts and position, so the related laws, except few individual details. 4. The Complaints before the Commission (Case No. 81 of 2016 and Case No. 83 of 2016) have been filed by CA Ranjan Sardana and Mr. Kantilal Ambalal Puj, against the Petitioners (Opposite Parties (OPs), Cellular Operators Association of India (COAI), OP-1, Vodafone India Limited (VIL), OP-2, Bharti Airtel Limited (BAL), OP-3, Idea Cellular Limited (ICL), OP-4, Telenor (India) Communications Private Limited (TICPL), OP-5, Videocon Telecommunications Private Limited (VTPL), OP-6, Aircel Limited (AL), OP-7, (TSPs) and Reliance Jio Infocomm Limited ("RJIL"), OP-8. Reliance Jio Infocomm Limited ("RJIL") (Respondent) (Case No. 95 of 2016) has filed similar such information against the TSPS/OPS. 5. The allegations against all the Petitioners-TSPs, are of "cartelisation" by "action in concert" by delaying and denying adequate Point of Interconnec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by RJIL. Hence, in our humble opinion, the instant cases ought to be closed under Section 26(2) of the Act. Details of individual parties- 7. The COAI is a premier Telecom industry association in the telecom Sector. It is a society registered under the Societies Registration Act, 1860 with the Registrar of Societies at Delhi in July 1996. It is an important interface between its member TSPs and the Government, regulators policy and opinion makers, financial institutions and technical bodies for formulation of policies and regulations and addressing the common problems of the telecom sector. Mr. C.A. Ranjan Sardana and Mr. Kantilal Ambalal Puj (informants) are the public spirited person and subscribers of telecom Service Provider RJIL. The Petitioners are the recognized service providers/operators in the Telecom market. CCI is an autonomous statutory authority established under Section 7 of the Competition Act. The Competition Act. 8. The object and purpose of the Competition Act is to prevent the practice having adverse affect on competition, to promote and sustain the competition in markets; to protect the interest of the consumers and to ensure freedom of trade. Various reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociation of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India. (2) Any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void. (3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which- (a) directly or indirectly determines purchase or sale prices; (b) limits or controls production, supply, markets, technical development, 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 bid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act whose implementation is entrusted to a statutory authority, then the Commission may make a reference in respect of such issue to the statutory authority: Provided that the Commission, may, suo motu, make such a reference to the statutory authority. (2) On receipt of a reference under sub-section (1), the statutory authority shall give its opinion, within sixty days of receipt of such reference, to the Commission which shall consider the opinion of the statutory authority, and thereafter give its findings recording reasons therefore on the issues referred to in the said opinion.] Section 26 - Procedure for inquiry under Section 19.-(1) On receipt of a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information received under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.] Section 36- Power of Commission to regulate its own procedure.- (1) ..... (2) The Commission shall have, for the purposes of discharging its 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 affidavit; (d) issuing commissions for the examination of witnesses or documents; (e) requisitioning, subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1972), any public record or document or copy of such record or document from any office. Section 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation of, the provisions of any other law for the time being in force. 10. The Competition Commission of India (General) Regulations, 2009- "Rule 17. Preliminary conference - (1) The Commission may, if it deems necessary, call for a preliminary conference to form an opinion whether a prima facie case exists. (2) The Commission may invite the information provider and such other person as is necessary for the preliminary conference. (3) A preliminary conference need not follow formal rules of procedure." "Rule 18. Issue of direction to cause investigation on prima facie case. - (1) Where the Commission is of the opinion that a prima facie case exists, the Secretary shall convey the directions of the commission [within seven days] to the Director General to investigate the matter. (2) A direction of investigation to the Director General shall be deemed to be the commencement of an inquiry under section 26 of the Act." The scope and authority of the Commission- 11. The "Commission" established under Sub-section (1) of Section 7 has been entrusted with duties, power and functions to deal with the issues like eliminating such practices, having adverse effect on the competit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion/restriction on the Commission from not calling material documents and assistance from any person. The Commission, therefore, has discretionary power and/or power to call for material documents, affidavits, even by permitting them to file amended information, materials, data and details. The Commission also has power, in view of the Regulations to hold conferences with the concerned person/parties including their advocates/authorized person. 13. The direction under Section 26(1), after formation of the prima facie opinion to cause and investigate into the matter is to the DG, which is an another Authority under the Competition Act. Both are quasi-judicial Authorities. 14. If the Commission is of the opinion that no prima facie case exists, it may close the case as contemplated under Section 26(2) of the Competition Act. The aggrieved person and/or parties, including informant may invoke the provisions of Appeal under Section 53(A) of the Competition Act. The Appeal, against the directions so issued under Section 26(1) on the basis of prima facie opinion by the Commission is not maintainable. However, the aggrieved party cannot be remediless. Therefore, the Writ Petition, as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... air competition in India by prohibiting trade practices which cause an appreciable adverse effect of competition within markets in India and for establishment of a quasi judicial body in the form of Competition Commission of India which would discharge the duty of curbing negative aspects of competition, the Competition Act, was enacted by the Parliament. Telecommunication Services- 17. We are dealing with the telecom market and its dealings, based upon the contract between the service providers, in question. The telecom/mobile market is under the control/supervision and the guidance of a Telecom Regulatory Authority of India, ("TRAI") established under the Telecom Regulatory Authority of India and the Rules and Regulations, so made thereunder. They are also governed by license agreements to provide such telephone/telecommunication services to the customers/subscribers, in pursuance to the statutory agreement and the licenses are so issued under Section 4 of the Telephone Act. 18. The Telecom Regulatory Authority of India Act, 1997. Section-11 Functions of Authority-[(1) Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the functions of the Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tlement and Appellate Tribunal to- (a) adjudicate any dispute- (i) between a licensor and a licensee; (ii) between two or more service providers; (iii) between a service provider and a group of consumers: Provided that nothing in this clause shall apply in respect of matters relating to- (A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969); (B) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986); (C) the dispute between telegraph authority and any other person referred to in sub-section (1) of section 7-B of the Indian Telegraph Act, 1885 (13 of 1885); (b) hear and dispose of appeal against any direction, decision or order of the Authority under this Act. Section 16 - Procedure and powers of Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the execution of ICAs to establish interconnection in sufficient capacity and number to enable transmission and reception of messages between the interconnected systems; (c) Clause 29 of Part - I, requiring a Licensee to ensure QoS Standards as may be prescribed by DoT/TRAI. Specifically, Clause 29.4, empowers DoT/TRAI to evaluate Quality of Service parameters prior to grant of permission for commencement of services; and (d) Clause 6.2 of Part - II, which requires a licensee to provide interconnection to all TSPs to ensure that calls are completed to all destinations. 20. Inter-connection Agreements- Similar separate Interconnection Agreements (ICAs) are executed between the parties. The relevant clauses of ICAs are as under:- Clause 2.4: "...RJIL will be required to establish Interconnection at the Switches of IDEA as listed in Schedule 1. 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..." (emphasis supplied) Clause 5.7: "...At the end of two years, the Parties shall convert the total E1s existing at the PoIs into one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 36 read with Section 11 of the TRAI Act. Clause 5(iv) and Clause 14, as relevant, are reproduced as under- a) Clause 5(iv) prescribes that the congestion at each individual POI cannot exceed 0.5% over a period of one month (no more than 5 out of every 1000 calls can fail). b) Clause 14 provides that in the event of any doubt regarding interpretation of any of the provisions of the QoS regulations, the view of the TRAI shall be final and binding. 23. The relevant clauses of the Standards of Quality of Service of Basic Telephone Service (wireline) and Cellular Mobile Telephone Service Regulations, 2009 includes, Cellular Mobile Telephone Services. The term "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. 24. Being the member of the Association of the parties, including the Petitioners and the Respondents, the service providers are aware of the exclusive provisions and power of the Authority under the TRAI Act and Regulations. Therefore, any subject related to augmentation of POI and providing NLD services, can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Schedule. As a condition of the said licence the licensee agrees and unequivocally undertakes to fully comply with terms and conditions stipulated in the licence agreement without any deviation or reservation of any kind. The licence is governed by the provisions of Indian Telegraph Act, the Indian Wireless Telegraphy Act, 1933 and TRAI Act and the Information Technology Act, 2000 ("IT Act") as modified or regulated from time to time. As per clause 27.4 of part I of the Schedule to the unified licence, the licensee is duty bound to interconnect with other Telecom Service Providers on the Points of interconnection (POI) subject to compliance of regulation/directions issued by the TRAI. The interconnection agreement inter-alia provides for the following clauses:- a) 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 Points of interconnect 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; c) To connect and keep connected, to the Applicable Systems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the interconnection seeker within 90 days of the applicable payments made by the interconnection seeker. Further there is a direction issued by the Government of India, Ministry of Telecommunication dated 29th August, 2005 by which directions have been issued to provide data of subscribers in the prescribed format." Note is also required to be taken of certain terms used in the agreement. Points of Interconnection:- (POI) are those points between two network operators which allow voice call originating from the work of one operator to terminate on the network by other operator. Special Identity Module (SIM card) which is fitted into mobile station after is the mobile station can be activated to make or receive telephone calls. Subscriber: Means any personal or legal entity which subscribe service from the licensee. 27. It is clear, therefore, taking overall view of above provisions, clauses and the related documents including notifications and circulars, the TRAI has been monitoring the quality of services laid down under the TRAI Regulations to achieve the quality of services, and apart from technology and capacity subject to the region/area, it is required to take the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Basic Telephone Service (Wireline) and Cellular Mobile Telephone Service Regulations 2009 ("QOS Regulations"), prescribed the quality of service parameters to be maintained with all the TSPs (Telephone Service Providers). Rule 3(1)(v) mandates that the point of interconnection (POI) congestion should not exceed 0.5% on an average in a month. DoT provides various telecommunication licenses (unified license). RJIL is granted license for 22 circles/areas in India. As per the unified license terms all the TSPs executed interconnection Agreement. RJIL executed IC Agreement with various TSPs including Bharti Airtel Limited (Airtel), IDEA Cellular Limited (Idea), Vodafone India Limited (Vodafone). It is specified that each TSPs is required to meet "reasonable" demands for POIs from each other. 30. The COAI on 11 December 2014 itself in response to TRAI's consultation paper dated 19 November 2014 on Interconnection Usage Charges (IUC) suggested the methodology of computation of IUC based on international standards. On 23 February 2015, the TRAI vide Telecommunication Interconnect Usage Charges (Eleventh) Amendment Regulations, 2015 fixed IUC for wire line to wireless at 0 paise and fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vor to complete the augmentation in the most expeditious manner." On 13 July 2016, Airtel's reply to RJIL's letter dated 21 June 16, (5 July 16, 8 July 16, 9 July 16, 11 July 16 and 12 July 16) for the first time stating that relevant circle teams had been advised for argumentation of POIs. On 14 July 2016, RJIL issued a letter to the TRAI and the DoT stating that the POIs provided by the Petitioner and others were substantially inadequate and leading to congestion in all circles. Accordingly, RJIL requested:- "...the Authority to immediately intervene and instruct these service providers, namely Airtel, Idea, Vodafone, Aircel and Tata to augment the POI E1 capacities as per the firm demands made by RJIL..." 34. On 15 July 2016, the Economic Times Telecom published a news report stating that the RJIL had already achieved 1.5 million subscribers during the test phase. 35. On 19 July 2016, The TRAI issued a letter to the Petitioner and others requesting them to "...do the needful action and furnish your response on the issues raised by M/s. RJIL within seven days of the issue of this letter..." On 26 July 2016, The Petitioner issued a letter to RJIL stating:- "...even t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edged services. On 12 August 2016, COAI's 3rd meeting with Government w/o RJIL, RJIL came to know only via media reports. On 19 August 2016, Voda's (deliberately delayed) reply to TRAI's letter dated 19 July 16, after 1 month instead of 1 week, stating necessary action has already been taken for augmentation of POIs. On 19 August 2016, the Petitioner issued a letter to RJIL stating that:- "...till date, no clear or specific response has been received by us on the issues highlighted vide Idea letter dated 26.07.2016..." 38. On 31 August 2016, RJIL provided data to TRAI in which it stated that it had "nil" subscribers as on August 31, 2016. On 2 September 2016, COAI wrote to the DoT and the TRAI stating that the media release by RJIL created:- "...a grave situation warranting urgent redressal..." and requested "...the authorities to intervene as they deem fit to restore competition..." "...The issues and views indicated below are the views of the majority of members of COAI and relate to the issue of the financial impact on majority incumbent operators. They may not represent the views of the minority members of COAI, whose views have not been solicited on this iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a letter to the TRAI requesting them to "...intervene immediately to stop the illegal service offering..." of RJIL and to "...ensure compliance of the TRAI Telecommunication Tariffs..." 40. On 21 September 2016, CA Ranjan Sardana and Kantilal Ambalal Puj filed information under Section 19(1)(a) of the Competition Act, 2002 before Respondent-1 against the Petitioner and others in Cases 81/2016 and 83/2016 respectively for violation of Sections 3 and 4 of the Competition Act. On 27 September 2016, The TRAI issued a show cause notice to the Petitioner to show cause within 10 days from the date of receipt of the notice, as to why action under the provisions of the Telecom Regulatory Authority of India Act, 1997 should not be initiated against the Petitioner for violation of the Standards of Quality of Service of Basic Telephone Service (Wireline) and Cellular Mobile Telephone Service Regulations, 2009 as well as for breach of its licence. On 30 September 2016, RJIL's subscribers totalled 16 million according to TRAI's records. On 27 September 2016 to 20 October 2016, The Petitioner and RJIL exchanged 20 letters regarding POI allocation. On 3 October 2016 (T6), TRAI issued let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation under Section 19(1)(a) of the Competition Act before Respondent-1 against the Petitioner and others in Case 95/2016 for violation of Sections 3 and 4 of the Competition Act. On 10 November 2016, The Petitioner provided RJIL with 8,098 dedicated one-way Access POIs for RJIL's outgoing traffic. On 16 November 2016, RJIL issued a fresh location-wise cumulative requirement of POIs without providing any justification for their demand. On 29 November 2016, the Petitioner issued a letter to RJIL rejecting its fresh demand dated November 16, 2016 as the same was inter alia, not as per the terms of their Interconnection Agreement, unreasonable and without any basis or rationale for seeking additional POIs. 43. On 14 December 2016, Vodafone filed WP (C) 11740 of 2016 before Delhi HC against TRAI's Recommendation dated 21 October 2016. On 16 December 2016, the Petitioner provided RJIL with (a) 10,050 dedicated one-way Access POIs; and (b) 3,350 dedicated one-way NLD POIs for RJIL's outgoing traffic. On 19 January 2017,Idea filed WP(C) 685/2017 before Delhi High Court against TRAI's Recommendation dated 21 October 2016 & Cl. 5 of QoS Regulations. On 21 December 2016 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017, after the impugned order, pending the representations, communicated the rejection of the said Application to the Applicant. No decision taken on this Application, prior to passing the impugned order. 46. On 31 January 2017, 8 February 2017 and 9 February 2017, Respondent-1 held a preliminary conference with all the parties in Cases 81/2016, 83/2016 and 95/2016. On 5 April 2017, the DoT returned the recommendation to the TRAI for reconsideration. On 21 April 2017, Respondent-1, relying primarily on COAI's letters dated August 8, 2016 and September 2, 2016 as well as the recommendation dated October 21, 2016, passed the majority order under Section 26(1) of the Competition Act and directed the Director General to cause an investigation into the matter ("Impugned Order"). Two members of Respondent-1, dissented from the Impugned Order and held inter alia that:- "...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 dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m that pursuant to the order of the Bombay High Court on June 30, 2017, the Petitioner shall- "...not be taking any further steps in respect of your Notice until further orders of the Court..." 50. On 17 July 2017, RJIL served its Affidavit-in-Reply dated July 15, 2017 on the Petitioner. On 20 July 2017, Respondent-1 and Respondent-2 served their Affidavit-in-Reply dated July 19, 2017 on the Petitioner. On 27 July 2017, Respondent-4 served a copy of his Affidavit-in-Reply dated 21 July 2017 on the Petitioner. On 28 July 2017, the Petitioner issued a letter to RJIL calling upon them to submit revised charts demonstrating POI allocation by the Petitioner to RJIL that was tendered by RJIL to Respondent-1 during the preliminary conference on February 8, 2017 as these were not a part Annexure 3 of its Affidavit-in-Reply containing "...Copy of the material tendered during the course of hearing..." On 29 July 2017, the Petitioner received a reply from RJIL stating that:- "...Please note that while we circulated copies of the revised charts to all the parties, at the end of the proceedings of the preliminary conference on 8-9 February 2017, however the Hon'ble Competition Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 August 2017. 53. The learned Senior Counsel appearing for the parties have filed their respective reply affidavit, rejoinder. They have also filed their respective written submissions and convenience compilations. Various Judgments are placed on record in support of their respective rival contentions. This Bench, by consent, heard these matters on day to day basis after admission board, since 11 August 2017 upto 19 September 2017. Maintainability and Entertainability of the Writ Petitions and Judicial Review- 54. The Competition Commission of India received three complaints in the form of information, one filed by CA Rajnan Sardana and another filed by Kantilal Puj against the COAI, attributing anti - competitive conduct to it and its leading members. In the complaint filed by RJIL against the COAI, Vodafone, Airtel and Idea, the allegations were made that there was contravention of provisions of Section 3 and 4 of the Act. The Commission forwarded the copies to the opposite parties in the complaint and had preliminary conference with the said parties who filed written submissions. The Commission heard all the parties on 31st January, 2017, 8th February, 2017 and 19th Februar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect. 57. It is also argued by learned Senior Counsel Shri Salve that the purport of the Order passed under Section 26(1) of the Act is no more res-integra and the Hon'ble Apex Court in the judgment of Steel Authority of India (cited supra) in unequivocal terms has made the position of law clear and he has taken us through the judgment in detail. According to him, the proceedings under Section 26(1) are administrative in nature and did not entail any civil consequence and the Commission has to only form a "prima facie opinion". He also took us to the Scheme of Section 26 to demonstrate that at the stage of Section 26(2) the Legislature has made a provision for appeal since a finality is reached at that stage and according to him, there are several further stages which reflect different shades of adjudication. However, according to him, Section 26(1) stage is not adjudicatory and according to the judgment of the Apex Court bare minimum reasons to express "prima facie opinion" are sufficient. According to him, the High Court in exercise of writ jurisdiction cannot substitute the prima facie opinion of the Commission unless and until it is found to be suffering from perversity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion against an order of the Competition Commission of India was maintainable before it since a part of the cause of action i.e. the underlying alleged contravention of the Competition Act had arisen in Assam. (iii) In Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr. AIR 2004 SC 2321 (paragraph 30), the Hon'ble Supreme Court of India held that even if a small part of the cause of action has arisen within the territorial jurisdiction of a court, such court will be competent to entertain a writ petition. (iv) In Nawal Kishore Sharma Vs. Union of India (2014) 9 SCC 329 (paragraphs 16 to 19), the Supreme Court found that a small part of the cause of action against an order of a department of the Government of India situated in Mumbai had arisen within the jurisdiction of the Patna High Court and, consequently, held that the Patna High Court could entertain the matter. (v) In Damomal Kauromal Raisingani Vs. Union of India (1965) SCC Bom. 129 (paragraph 5) the Bombay High Court, relying on its decision in W.W. Joshi Vs. State of Bombay AIR 1959 Bom 363, held that the High Court within whose jurisdiction the effect of an order of an authority is felt will also have jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Vs. Adani Export Limited & Anr. (supra) has been, in fact, considered in two subsequent decisions of the Bombay High Court, wherein it has been held that a writ petition under Article 226 of the Constitution of India is maintainable in the Bombay High Court, even if the seat of the authority concerned is outside Maharashtra, provided that the effect of decision of such authority falls within the territorial limits of the jurisdiction of this Hon'ble Court. He places reliance on the judgments in the case of R.K. Singh Vs. Union of India & Ors. 2002 (4) Bombay Law Reporter 246 and Wills India Insurance Brokers Pvt. Ltd. Vs. Insurance Regulatory and Development Authority 2012 (1) BCR 204. 64. In reply to the preliminary objections of learned senior counsel Shri Salve about the maintainability of the writ petition, in the light of the judgments of the Apex Court in the case of SAIL (Supra), learned senior counsel Shri. Dwarkadas has submitted that the judgment of the Apex Court does lay down no law contrary to the settled position namely, be it the administrative or quasi judicial order in exercise of statutory powers or in exercise of jurisdiction conferred on instrumentaliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order on more or less same grounds. We will be dealing those arguments collectively. We have extensively heard learned senior counsel Shri Khambata appearing on behalf of the Idea Cellular, learned senior counsel Shri Dwarkadas appearing on behalf of the Bharati Airtel and learned senior counsel Shri Iqbal Chagla appearing on behalf of the Vodafone Ltd.. We have also heard learned senior counsel Shri Aspi Chinoy, representating the Cellular Operator Association of India. 66. The impugned order passed by the Competition Commission is assailed by the learned counsels for the Petitioners on the ground that the said order is perverse and arbitrary. According to the learned senior counsels appearing for the Petitioner that by applying the test in Barium Chemicals' case, it is necessary to test the order of Commission on the parameters as to whether the subjective satisfaction has been reached by taking into consideration the objective facts. It was argued before us that since there is no provision of an appeal against the order passed under section 26(1) and an appeal is provided against the order passed under section 26(2) of the Competition Act, the minimum safeguard availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers coming on the network within the first quarter post launch. In order to help provide seamless connectivity to the targeted subscribers, RJIL will require sufficient interconnect capacity for inter-operator traffic at the Points of Interconnection ("POIs") ..." 69. The grievance of the learned Senior Counsel is that RJIL did not announce its date of commercial launch and in pursuance to the demand raised on 21st June, 2016 the Idea Cellular arranged for POI's from time to time and RJIL had in their 22 letters acknowledged the said fact in its various letters and according to the learned Senior Counsel, the petitioner was only conducting test trials and according to the existing regime of Regulation, it was sufficient to provide the points of interconnect for testing. According to him, it was not necessary to augment the entire demand raised by RJIL since they were in test phase. It was not permissible to create subscriber base before its commercial launch and RJIL did not declare its data of commercial launched till 2nd September, 2016 when they declared that they are going to commercially launch on 5th September,2016. The liability to provide POIs commensurates with the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on exists, the action might be exposed to interference unless the existence of the circumstances is made out." He also relies on the judgment of Apex Court in the case of Rohtas Industries Vs. S.D. Agarwal & Ors. AIR 1969 SC 707 in support of his contentions that the impugned order is vitiated in law on the following grounds: (a) It disregards relevant undisputed and conclusive material; (b) Is based on irrelevant consideration; (c) On account of perversity/on being unreasonable by applying Wednesbury's Principle of Reasonableness. 70. Shri Khambatta argued that formation of prima facie opinion means based on material placed before it and though Section 26(1) of the Act permits the Commission to pass an order without hearing and record the minimum bare reasons, however, once the Commission has chosen to give hearing and recorded reasons for its decision, the same can be judicially scrutinized to determine whether a writ of certiorari will lie or to apply the Wednesbury's test of reasonableness. He placed reliance upon the Classic Statement of Law of Denning, J. in Rex Vs. Northumberland Compensation Appeal Tribunal (1952) 1 KB 338 (CA) at 349 wherein, it has been he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to enquire as to whether there was breach of the agreement/licence's conditions in not providing POIs under the guise that it was an attempt, resulting into anti-competition phase to stall RJIL's entry in the market. It is also contended that though the issue of jurisdiction of the Competition Commission in the light of the alternate remedy in the form of TDSAT was raised before the Commission but the same was not dealt with at all and thus the Commission has fallen into a jurisdictional error. 74. It is also argued by the learned counsel for the Petitioner that on a careful reading of the complaint filed before the Competition Commission, the RJIL had made grievance about the delay and denial of POIs in terms of the interconnect agreement and by using the platform of Cellular Operators Association of India (COAI) and it was, therefore, prayed before the Commission to cause an investigation into the matter by exercising the power under section 26(1) of the Competition Act and directing the OPs to discontinue their test of dominance, to provide adequate interconnection capacity to RJIL and to provide adequate interconnect capacities whenever it is required in terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed penal action against them. According to the learned senior counsel the recommendations of TRAI were heavily relied upon by the Commission and the Commission was greatly influenced by the said recommendations when it observed that the penalty recommended had held that the ITOs "have jointly through their associations (COAI) declined the points of interconnection to RJIL" and that the TRAI had observed that RTO's denial of interconnection was with ulterior motive to stifle its production and is anti-consumer. According to the learned senior counsel the majority view of the Commission fail to take into consideration the fact that the recommendations of TRAI had not attained finality since they were only forwarded to the DOT and as the minority opinion recorded that the DOT thereafter had sought comments of TRAI on the said recommendations. After its report on the said recommendations and therefore, the same is not of any consequence and not concerned as far as the competition issues. It is, therefore, argued that the Commission has relied upon the irrelevant material in the form of recommendations of TRAI. 77. Learned Senior Counsel Shri. Iqbal Chagla argued that the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties in the test phase period, prior to commercial launch of the services. 78. We have also heard the learned senior counsel Shri Aspi Chinoy appearing on behalf of the petitioner in a petition filed by the Cellular Operators Association of India. He specifically made a reference to para 19 of the order of the Commission, impugned in the petition, wherein the Commission has observed that COIS has facilitated the joint conduct of the RTOs to collectively decide to prevent a successful entry of RJIL into telecom market. He took us through letters addressed by the Association to the TRAI and it is his contention that as an association they had took up the cause of its members and the findings of the Commission that COAI in its letter dated 08.08.2016 and 02.09.2016 has only protected the interest of its majority members, which was demonstrative of the fact that the TIOS were using the platforms of COAI to collectively refuse to provide POIs to RJIL's is an erroneous finding. According to Shri Chinoy such an observation of the Commission against an association is nothing but a attempt to emasculate the association who represents the interest of its members and though CCI is a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip to them, however, if the law permits such a course, the consequence of the action could not debar the authority from following the mandate of the statute. According to him, the order passed by the Commission only discloses a prima facie opinion and he heavily relies upon the judgment of the Apex court in the case of SAIL (Supra). He contends that the order passed under section 26(1) is an administrative order and the nature of the powers exercised by the Commission are inquisitorial and not adjudicatory and do not entail any civil consequences. He relies upon the findings of the Apex Court cited supra to canvass that the Commission is expected to record some reasons while forming a prima facie view and it may pass a speaking order but Section 26(1) did not contemplate passing of an order of adjudication but a mere prima facie opinion without following the mandate of "principles of natural justice" in a strict sense. He also places reliance on the judgment of the Bombay High Court in case of Kingfisher Airlines Ltd. Vs. Competition Commission of India to contend that the purpose of investigation is collection of evidence and as per the scheme of the Act, when an order is passed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event of any conflict between the terms of interconnect agreement (ICA) and the provisions of quality of service (QOS) Regulations, the provisions of QOS Regulations will prevail. According to him, there is no distinction between the "test phase" and "phase before commercial launch" as the recitals in the agreement contained in ICA are effective from the date on which the agreement is entered into. 81. According to Shri. Sathe the ICA defines the term "subscriber" in a inclusive manner and since there is a contractual relationship between RJIL and its test phase users, it cannot be said that they are not subscribers. He took us through various clauses in the ICA and also through the Quality Of Service (QOS) Regulation, 2009. Shri. Sathe also argued that QOS Regulation prescribes that congestion at each individual POI, cannot exceed 0.5% over a period of one month and RJIL experienced call failures far in excess of QOS standards of congestion. 82. Learned Senior Counsel argued that the Regulations do not create any distinction between obligations of TSP during the test phase and the commencement of services and moresoever when during test phase RJIL made payments of approximately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October onwards, (b) there was no technical difficulty in augmenting the POIs nor there was any financial constrains since the money was paid by RJIL and (c) 90 days was the minimum time and prescribed for augmentation but that was maximum time the petitioners need not have waited till 90th day, (d) There was parallel action and behaviour on part of all the Telecom Operators. According to him, the Competition Commission did not solely rely upon the recommendations but only accepted it as facts. He placed reliance on the judgment in the case of Excel Crop Care Limited vs. Competition Commission of India & Anr. and Grasim Industries Limited vs. Competition Commission of India. Learned Senior Counsel Shri Shrinivasan also represented RJIL and took us through the Scheme of the Competition Act, in a great detail. According to him, the independent decision of the ITOs got converted into a decision in concert with the association supporting the ITOS. According to him, the Competition Act aims at the economic development of the country and prevent practices having adverse effect on competition since anti-competitive agreement affects "economic well being". According to him, it was the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of ITOS not to supply POIs which was not of independent of each other but as action in concert. According to the learned Senior Counsel, the spike in the POIs after the TRAI Recommendations clearly reflected such action in concert and according to him, this finding of Commission is not parasite of TRAI's Recommendations and in fact arranging one way POIs at similar point of time and following the same pattern of shifting from two way to one way POIs is reflecting an Anti-Competitive Agreement amongst the parties and demonstrate collusion. He also argued that the action of the Commission is an "action in rem" and is anti-competitive in nature that the jurisdiction of the Competition Commission is exclusive in view Sections 60 to 62 of the Competition Act. Fundamental reasons to decide Writ Petitions:- 85. Strikingly, the Supreme Court Judgment in SAIL (Supra) has been read and referred by both the side Senior Counsel in support of their rival contentions. The relevant paragraphs are- "31. ..... (2) However, the Commission, being a statutory body exercising, inter alia, regulatory jurisdiction, even at that stage, in its discretion and in appropriate cases may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndemn any person and therefore, application of audi alteram partem is not called for. Formation of a prima facie opinion departmentally (Director General, being appointed by the Central Government to assist the Commission, is one of the wings of the Commission itself) does not amount to an adjudicatory function but is merely of administrative nature ......." "97. ... .......... At the stage of forming a prima facie view, as required under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General. Such view should be recorded with reference to the information furnished to the Commission. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the Commission under the various provisions of the Act, as afore-referred. However, other decisions and orders, which are not directions simpliciter and determining the rights of the parties, should be well reasoned analyzing and deciding the rival contentions raised before the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Competition Commission is competent to decide. The matter is still at the stage of further inquiry. The Commission is yet to take a decision in the matter. There is no reason to believe that the Competition Commission will not consider all the contentions sought to be raised by the petitioners in these petitions including the contention based on Sub-section (5) of Section 3 of the Competition Act. 86. In case in hand, the Commission (majority decision) has given reasons by overlooking the law and the record. The parties and their counsel have participated before the Commission with huge number of documents and charts. This is not a case of "administrative order" only. It is a reasoned order/direction, therefore, Judicial review is permissible. A case for Judicial Review- 87. The Writ Petitions are maintainable also for the following reasons. (a) Union of India vs. Gunasekaran (2015) 2 SCC 610 "12. .......In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers Under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuted violation of the provisions of Section 3 or Section 4 of the Act." (c) Google Inc. & Ors. Vs. Competition Commission of India and Anr. (2015) 150 DRJ 192 (DB) 18 .... "L) However, a petition under Article 226 of the Constitution of India against an order under Section 26(1) of the Act would lie on the same parameters as prescribed by the Supreme Court in Bhajan Lal (supra) i.e. where treating the allegations in the reference/information/complaint to be correct, still no case of contravention of Section 3(1) or Section 4(1) of the Act would be made out or where the said allegations are absurd and inherently improbable or where there is an express legal bar to the institution and continuance of the investigation or where the information/reference/complaint is manifestly attended with mala fide and has been made/filed with ulterior motive or the like." 89. This is a case for judicial review, also in view of the rival contentions so raised by the Senior Counsel for the parties on various controversy as contended. Therefore, we are going further into the depth of the matters, as even contended by the Senior Counsel for the parties. 90. Admittedly, no Appeal lies against the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iterion of reasonableness is not subjective, but objective. Lord Atkin in Liversidge Vs. Anderson 1942 AC 206 (HL), said: "....If there are reasonable grounds, the Judge has no further duty of deciding whether he would have formed the same belief any more than, if there is reasonable evidence to go to a jury, the Judge is concerned with whether he would have come to the same verdict." The onus of establishing unreasonableness, however, rests upon the person challenging the validity of the a cts. 10. Administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the courts' own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factual basis." (Emphasis added) "85. The law has been well-settled for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Article 226 read with Article 227 of the Constitution of India need not be entertained, as the said decision and the directions are not adjudicatory in nature, but merely the administrative and it not entail any civil consequences, is unacceptable. The prima facie opinion, leading to a direction for investigation does not determine any of the rights of the parties is also untenable. There is no adjudication in respect of any dispute by and between the parties, is also not a correct submission. The Judgments so cited by the CCI and RJIL are required to be considered on the facts and circumstances of the case. The position of law needs no further discussion. The judgments, so cited, are distinguishable on facts and the law for the above reasons itself. 94. In view of the same Supreme Court Judgments and reading the provisions of the Act and the regulations, in fact the Commission has collected the detailed information by holding the conferences, calling material details, documents, affidavits and by recording the opinion and referred the matters for further inquiry and investigation to DG. The impugned order/direction so passed cannot be treated as just "administrative or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L) v. Competition Commission of India & (2016) 4 Comp LJ 122]. Objections to entertainability of Writ Petitions in light of Section 26(1) of Competition Act- 99. Another factor/objection was that these Writ Petitions are not maintainable against such administrative order/direction under Section 26(1) of the Competition Act is also unacceptable. The Supreme Court Judgment (SAIL supra) and/or others nowhere dealt with this aspect of entertaining and/or maintaining of Writ Petitions against such order. 100. The impugned decision is by majority five members. The dissent note is of two members. The reasons are given by the majority members in support of the information/complaint so lodged, by two individual persons, including Reliance Jio. The dissent note, rejecting the information/complaint also reflects various reasons based upon the documents/charts placed on record by the parties. In totality, the Commission members have read and referred the respective documents, material, charts and written submissions and pass the reasoned order, including the reason for dissent. The Petitioners are relying upon the dissent note in support of their contentions, in addition to their oral, as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct clauses between the parties/service providers under the telecommunication laws. The parties are bound to comply with their respective rights and obligations. If there is non-compliance and/or breach of clauses, directly or indirectly, the grievance required to be redressed before the Authority/Tribunal under whose supervision and control such rights and obligations are crystallized. The case of deliberate collusive delay and laches, that resulted into the alleged congestion, certainly falls within the ambit of such binding agreements and it is appropriate that the Competent Authority/Tribunal define their rights and obligations, in the telecom market under the governing laws. The Commission may initiate inquiry later on, if still the case is made out, but not otherwise. Once the points are settled, the parties may also settle their disputes and the grievances. The elements of commercial settlements are very much available in the matters. No one can be individually blamed for any default or delay. 102. In the present case, as noted, there are no such clear terms and obligations provided and/or crystallized at any earlier point of time. No agreement clauses have provided and deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 104. This is further elaborated by Section 21(A) of the Competition Act itself, which is a provision whereby, in case of doubt and/or for the clarification of any issues, the Commission may refer the matter to the experts/authorities pending the inquiry/investigation. Therefore, the Commission ought to have invoked this provision before initiating the proceedings, but has not been done in the present matter. We are not curtailing the power of the Commission to exercise the jurisdiction over the enterprise or person, that are regulated by other Sectoral authorities/Tribunals. The crux is of usurping the jurisdiction to decide the contractual terms and rights and obligations of service providers, who are governed and regulated by the TRAI Act, specially when the controversy, admittedly is pending before the High Court/The Government/Competent Authority under the TRAI Act. The Commission, in such situation, pending the litigation between the parties could not have proceeded further, even for inquiry and investigation, by expressing "prima facie opinion" under Section 26(1) of the Act, unless the position of governing law and the regulations of the concerned market are clear. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry. The scope and power of the Commission to initiate investigation by giving prima facie opinion, inspite of pendency of the issues and existing provisions of telecommunication laws, therefore, is perverse, illegal and impermissible. TRAI recommendations treated as final- 106. The majority decision reflects the reliance on TRAI recommendation dated 21 October 2016 (the recommendation), which is the subject matter pending in the High Court Writ Petition. Department of Telecommunication (DOT) had, returned the same for further clarification. The recommendations are not binding, unless it is settled and decided by the Competition Authority finally. The observation by the TRAI that "other ITOs have jointly, through their Association, declined the interconnection to RJIL, appears to be ulterior motive to stifle the competition and is anti-consumer", this itself is contested and disputed by the Petitioners/Service Providers, throughout. The reasons of actual congestion at POI required to be dealt with finally by the High Court and/or Authorities under the TRAI Act. The submission that the recommendations are only noted but not relied upon, is unsustainable. The decision of the major ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is a material to indicate the same. Such disputed issue pertaining to the obligation arising in the test phase and or the commercial phase are required to be determined before any issue pertaining to the anti-competitive activity action and/or initiation of any proceedings. Such controversy cannot be adjudicated by the Competition Authority. The words "test phase" and/or "test users", "subscribers", "test service cards" "employees" and its meaning and purpose are the part of the clauses of various agreements between the parties. The license fees as required to be shared during the test fee with the licensor DOT was not discussed and/or shared. The tariff plan was required to be filed only after commercial launch. No QoS reports available on TRAI's website before announcement of launch which is stated to be statutory requirement as per regulation 10 of PoS. All these aspects were not considered in majority decision. The dissent note however, recorded the issues around the same. The interpretation given by the RJIL to the definition of "subscriber" thereby stating that it includes any legal person or entity, therefore, it falls within the ambit of "subscriber" even during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities/tribunals based upon the policy and/or circular already declared for the telecom market. The distribution of millions of test cards to the general public though may be a business strategy, but if the issue is raised about its feasibility in the terms of contract and regulation on the date of such action, then there existed a confusion and the clarification as sought by the service providers independently and/or through the Association, in no way can be stated to be action within the purview of Section 3 of the Competition Act. The charts and the details- 109. All the Senior Counsel read their respective charts referring to access to POIs and NLD POIs. The charts of call failure also part of record. More we read these charts and correspondence, more we also felt the importance of the interpretation and the clarifications of this complex issues. We have also noted, after hearing the parties at length and after noting the charts so submitted by the rival parties that even at the end after collecting the information/investigation by the Director General, the Commission for want of specific power and jurisdiction could not have dealt with such telecommunication laws and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 (TIPCR, 2001) to ensure effective interconnection arrangement between the service providers and to claim the charges. (ii) The TRAI (Levy of Fees and other Charges for Tariff Plans) Regulation, 2002 (TRAI Fees Regulation, 2002) provides and deals with the levy of fees and other charges, as per the rate determination. (iii) The Telecommunication Interconnection Usage Charges Regulation, 2003 (TIUC Regulation 2003) also fixed the terms and conditions of interconnectivity between the service providers and for sharing the revenue between the providers, (iv) Standards of Quality of Service of Basic Telephone Service (Wireline) and Cellular Mobile Telephone Service Regulations, 2009, further set aside the quality of services mechanism. The issue is that the Commission cannot adjudicate and/or decide, in any manner, the breaches of terms and conditions/regulations and interpret any policy decisions and/or even provide any guidelines, in case of doubts and/or confusion in the telecom market. The TRAI, being the Sectoral regulator, has all technical expertized to deal and decide of the issues required for the telecom Sector. The TRAI Act and the Regulations read together is complete co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... market is settled on the issues so raised. (1) Aamir Khan Productions Pvt. Ltd. (Supra), Shri Niraj Malhotra Vs. North Delhi Power Limited & Ors. and Mr. P.K. Krishnan Proprietor, Vinayaka Pharma Vs. Mr. Paul Madavana, Divisional Sales Manager M/s. Alkem Laboratories Limited. All these judgments are revolving around the respective Acts of the concerned market. The Acts involved are the Copyright Act, 1956 Aamir Khan Productions Pvt. Ltd. (Supra), The Patents Act, 1970 Telefonaktiebolaget LM Ericsson (PUBL) (Supra), The Electricity Regulatory Commission, Shri Niraj Malhotra (Supra) and The Drugs (Prices Control) Regulation, Mr. P.K. Krishnan Proprietor, Vinayaka Pharma (Supra). All these Acts governed their respective area but not regulated by statutory authority like under the telecommunication laws. The Commission has jurisdiction if any, once the position of law and the terms and conditions between the parties are clear and settled by the telecommunication Authority and the High Court and not otherwise. "The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no Authority can confer upon its jurisdiction which it otherwise does not possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew technology with the existing technology may be the relevant factors. All these aspects unless settled and decided by the Competent Authority/Tribunal under the TRAI Act, the prima facie majority decision is unsustainable and unacceptable even for issuance of any direction. We are reiterating that all these disputes where there is delay and denial in providing reasonable POIs; whether there is an obligation to provide one way POI instead of two 2 way POIs; whether there is breach of such obligations; whether the test phase extends only to business partners or employees; whether cards could be supplied for testing quality of network and not for testing the market and; whether this amounts to creation of subscriber base,- all these are issues to be decided by the authorities and tribunals (TDSTD) and not by the High Court and definitely not by the Commission under the Competition Act. Role of Association (COAI)- "Every majority decision is not cartelisation"- 120. The TRAI's recommendation and observations against the role of COAI, in the facts and circumstances, for above reasons itself are untenable and unsustainable. Every majority decision by the Association and/or its me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Competition Act, nowhere debar and/or prevent such Association from acting in the interest of the members and the concerned telecom market within the framework of their law. The Judgment, so sited by the Respondents in the case of Competition Commission of India Vs. Coordination Committee of Artistes and Technicians of West Bengal Film and Television & Ors. (2017) 5 SCC 17 is distinguishable on the facts. In the present case, the representation was to the statutory Authority, as there was apparent doubt and confusion in the market and as those authorities are controlling and supervising the telecom market in every aspects. The judgments cited by the learned counsel appearing for the CCI, as well as, RJIL in this regard, are distinguishable on the facts and circumstances of the case itself. The concepts of "Judgment in rem" and/or "in personam" itself means serious consideration of the subject by the competent Authority within the framework of the respected laws and the proved facts. There is no case of inconsistency or conflict between two Acts. The provision of Competition Act is additional and not in derogation of any law. 121. We have gone through the CCIA's letters and com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on the provisions of one way E1S, as reflected from the letters submitted by the RJIL. The dissent note, even recorded that "....it appears it was not any concerted action of the ITOs but the situation created by RJIL itself which seems to have led to huge congestion on its network....". The percentage of satisfaction of the demand so set out in the RJIL information, just cannot be relied in the above background. The Commission (majority) decision, based upon the media report and allegations of RJIL by overlooking the above position cannot fall within the ambit of requisite ingredients of Section 3 of the Act. No case of tacit agreement or joint decision and/or attempt to hamper the RJIL commercial launching.- 123. There is no material, except the correspondence so referred against the COAI. There is no other evidence or material to justify that all the Petitioners/service providers, excluding the Respondents and other two, formed any internal and discrete Association directly or indirectly attempting to thwart the progress of the RJIL. Every parallel conduct will be regarded and/or presumed to be action in concert and/or in collusion, specially in a oligopolistic market. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the reasons so recorded above, the issuance of notice and asking for various details by the DG, not only for the elements under Section 3, but the stated contravention itself is impermissible and contrary to the scheme of the Competition Act. The impugned majority order itself is unjust, without jurisdiction therefore, such inquiry and investigation and the show cause notices issued by the DG are also unsustainable. As the investigation will definitely cause irreparable and immense damage to the Petitioner's name and fame and reputation, specifically when they are in the market for long time and having huge area wise customers base. Service providers business depends upon its credibility in the national and international market, including the global lenders, investors, suppliers and the partners. Such investigation/inquiry, at the instance of the rival competitor, will affect their business and reputation. The Supreme Court in Rohtas (Supra) has recorded, "the adverse effect of investigation on the companies". The Apex Court in Sri Ramdas Motor Transport Ltd. & Ors. Vs. Tadi Adhinarayana Reddy & Ors. AIR 1997 SC 2187 has recorded that unless proper grounds exist for investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded above, we are inclined to quash and set aside the majority decision given by the Commission and the consequential action of issuance of notices by the D.G under the Competition Act and all further actions arising out of it, in the facts and circumstances of the case. 129. We are of the view that, the observation of the Commission that the service providers/Petitioners had an understanding, agreement and acted in concert to deny or delay the provision of POIs, and they as individual members, through their Association have breached the provisions of Section 3(3)(b), ought not to have been opined, even prima facie, unless their respective rights and obligations under the Telecommunication laws are clarified and/or decided by the Regulatory authorities/Tribunal and the High Court. The initiation of enquiry, at this stage, by the Commission by holding that the alleged parallel conduct of individual members and Association establishes prima facie, that there is a collusive conduct that limits provision of services and the technical development as per Section 3(3)(b) is unacceptable, including further action of investigation so ordered, being without jurisdiction, illegal and pervers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove 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 not sufficient to decide and deal with the issues, arising out of the provisions of the TRAI Act and the contract conditions, under the Regulations. f) The Competition Act governs the anti-competitive agreements and its effect- the issues about "abuse of dominant position and combinations". It cannot be used and utilized to interpret the contract conditions/policies of telecom Sector/Industry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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