TMI Blog2017 (9) TMI 1926X X X X Extracts X X X X X X X X Extracts X X X X ..... rments so made in the Petition, which supports the fact that the part cause of action arose in Maharashtra, including in Mumbai. The relevant averments in this regard of the respective Petitioners, in the Petitions are read and referred by the Senior Counsel - substantial client/consumer base is in State of Maharashtra. The Respondents/service providers Officers' are at Mumbai. The affidavits and averments and the documents so placed on record, show that the various correspondences/the documents have been exchanged by and between the parties, within the jurisdiction of Maharashtra State including Mumbai. Both the parties have substantially argued the matter by referring to the affidavit and the documents/charts, which are necessary to adjudicate the issues so raised. The Senior Counsel appearing for the CCI has not agitated issue about maintainability or entertainability of the Writ Petitions in this Court - the present Writ Petitions, are maintainable and entertainable in this High Court. Maintainability of Writ Petitions in light of Section 26(1) of Competition Act - HELD THAT:- The impugned order/even if of impugned majority order and/or minority order, no way can be st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t issues be left for final decision with the High Court or the Authority under the Telecommunication laws. Free Subscribers and card holders and the Obligations of other Service Providers - HELD THAT:- The free service, as announced and/or declared by one provider, if has direct communication and or it required to link with the other providers, both the parties are required to act within the framework of agreement, but there is no such agreement and/or clause made out and/or pointed out and certainly not referred in the majority decision. The Commission is required to wait for the decision of the 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. Telecommunication regulations are binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the contract to provide reasonable POIs on demand - Merely because the telecom service providers adopted the similar approach to split the trunk groups, that cannot be stated to be a collusive approach and/or treated as an anti competitive agreement. At the appropriate stage, even RJIL has not recorded any objection on the provisions of one way E1S, as reflected from the letters submitted by the RJIL - 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 - HELD THAT:- The RJIL conduct and free services, as stated to be a business strategy, was an issue concerning the telecom market itself and therefore, the steps and the representations so made by COAI, in no way can be concluded as a cartelisation . The Respondent's reproach of interdiction in the stated supply by the Petitioners and its Association is unjust, unreasonable and unsustainable and also premature. Cartelisation - HELD THAT:- The role of the COAI, of mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The stated conduct and/or cartel could not have been tested or inquired into unless their rights and obligations based upon the governing laws in the market are clear and settled, as the same binds all the respective service providers of the telecom sectors. Petitions allowed. - Writ Petition Nos. 8594, 8596, 7164, 7172, 7173 of 2017, Writ Petition No. of 2017, in Civil Application (Stamp) No. 17736 of 2017 - - - Dated:- 21-9-2017 - Anoop V. Mohta and Bharati H. Dangre, JJ. For Appellant: Iqbal M. Chagla, Senior Advocate, Pallavi Shroff, Aashish Gupta, Ameya Gokhale, Meghana Rajadhyaksha, Vaibhav Singh, Sukriti Jaiswal i/by Shardul Amarchand Mangaldas Co. For Respondents: Shrihari Aney, Senior Advocate, Prateek Pai and Ritika Gadoya i/by Key Stone Partners JUDGMENT Anoop V. Mohta, J. 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. The Petitioners ( Service Providers ) have challenged common impugned order/direction dated 21 April 2017 passed by the Competition Commission of India (CCI) ( the Commission ) under Section 26(1) of the Competition Act, 2002 ( Competition Act ), pending the Complaints under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contravening entity/entities. During the course of investigation, if involvement of any other party is found, DG shall investigate the conduct of such other parties also who may have indulged in the said contravention. In case the DG finds the conduct of the Opposite Parties in violation of the Act, the DG shall also investigate the role of the persons who were responsible for the conduct of the Opposite Parties so as to proceed against them in accordance with Section 48 of the Act. 25 The Commission makes it clear that nothing stated in this order shall tantamount to final expression 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. 26 The Secretary is directed to send a copy of this order to the DG, along with the informations and other submissions filed by the parties. By Minority- 28 In view of the forgoing, we are of the considered opinion that on the basis of the material available with the Commission, it is difficult to say that there is a prima facie case to hold that the ITOs OP2, OP5 and OP7 alongwith COAI had acted in a concerted manner to restrict RJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in writing; or (ii) whether or not such arrangement, understanding or action is intended to be enforceable by legal proceedings; 2(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; 2(g) Director General means the Director-General appointed under sub-section (1) of section 16 and includes any Additional, Joint, Deputy or Assistant Directors General appointed under that section; 2(m) practice includes any practice relating to the carrying on of any trade by a person or an enterprise; 2(u) service means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 subsection (1), the powers and functions of the Commission shall include the powers and functions specified in subsections (3) to (7). (3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under section 3, have due regard to all or any of the following factors, namely:- (a) creation of barriers to new entrants in the market; (b) driving existing competitors out of the market; (c) foreclosure of competition by hindering entry into the market; (d) accrual of benefits to consumers; (e) improvements in production or distribution of goods or provision of services; (f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services. Section 21A- Reference by Commission.- (1) Where in the course of a proceeding before the Commission an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (3) recommends that there is no contravention of the provisions of this Act, the Commission shall invite objections or suggestions from the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be, on such report of the Director General. (6) If, after consideration of the objections or suggestions referred to in sub-section (5), if any, the Commission agrees with the recommendation of the Director General, it shall close the matter forthwith and pass such orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (7) If, after consideration of the objections or suggestions referred to in sub-section (5), if any, the Commission is of the opinion that further investigation is called for, it may direct further investigation in the matter by the Director General or cause further inquiry to be made in the matter or itself proceed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnishes or is required to furnish under this Act any particulars, documents or any information,- (a) makes any statement or furnishes any document which he knows or has reason to believe to be false in any material particular; or (b) omits to state any material fact knowing it to be material; or (c) willfully alters, suppresses or destroys any document which is required to be furnished as aforesaid, such person shall be punishable with fine which may extend to rupees one crore as may be determined by the Commission.] (2) Without prejudice to the provisions of sub-section (1), the Commission may also pass such other order as it deems fit. Section 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. Section 61 - Exclusion of jurisdiction of civil courts-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the [Commission or the Appellate Tribunal] is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied by the informant. As per the procedure of scrutiny contents of information are required to be verified by the authority/secretary. The Commission has power to join multiple information and/or to amend the information. The Commission shall maintain the confidentiality of the identity of the informant and the documents contained, except the public documents. 12. The regulations are applicable for the Director-General (DG), so contemplated under Section 41(2) and 36(2) read with Section 240 and 240A of the Companies Act, 1956. The elements which are required to determine as to whether the direct or indirect agreement has an adverse effect on the Competition under Section 3 and/or 4. The elements so provided under Sections 3, 4 read with Section 19(3) of the Act are required to be noted and/or kept in mind by the Commission at the time of passing prima facie opinion for directing the inquiry, as contemplated under Section 19 read with Section 26(1) of the Competition Act. This is in the background that the Section nowhere contemplates to give personal hearing to the informant or to the affected person and/or any other person. However, the scheme of the Act and the regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hearing to the informant and the aggrieved party. Whereas, the DG is empowered to call the witnesses and permit the parties to file affidavit on oath and give opportunity to the other side to cross-examine the same. Thus, effect is that the investigation by the DG partakes a trial and inquiry like a quasi-judicial body, on the basis of prima facie opinion. The DG and/or the Commission is empowered to add and/or permit to add more information and material. The Commission is empowered to direct the DG to make further investigation. Therefore, even pending the final order by CCI, the DG may be directed and required to investigate and inquire into the affairs so referred. The Commission/DG in view of other provisions of Section 26, is required to proceed with the matter for further trial, which may result into the final order in favour of the informant and against the stated enterprise or vice versa. The final adverse order of Commission is subject to Appeal. It may further lead to claiming the compensation by the informant and/or claimant, as provided under Section 53-N of the Act. We have to consider, therefore, the impact of initiation of inquiry by the Commission at this stage it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay-down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of such service provided by the service providers so as to protect interest of the consumers of telecommunication service; (vi) lay-down and ensure the time period for providing local and long distance circuits of telecommunication between different service providers; (vii) maintain register of interconnect agreements and of all such other matters as may be provided in the regulations; (viii) keep register maintained under clause (vii) open for inspection to any member of public on payment of such fee and compliance of such other requirement as may be provided in the regulations; (ix) ensure effective compliance of universal service obligations; (c) levy fees and other charges at such rates and in respect of such services as may be determined by regulations; (d) perform such other functions including such administrative and financial functions as may be entrusted to it by the Central Government or as may be necessary to carry out the provisions of this Act: Provided that the recommendations of the Authority sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such record or document, from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing an application for default or deciding it, ex prate; (h) setting aside any order of dismissal of any application for default or any order passed by it, ex prate; and (i) any other matter which may be prescribed. (3) Every proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Appellate Tribunal shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). Telecommunication laws-binds all- 19. The relevant licences- Unified License (UL)- The UL issued by Department of Telecommunications, Government of India ( DoT ) for providing telecommunication services on a pan India basis. License under Section 4 of Indian Telegraph Act, 1885 therefore they become Telecom Service Provider ( TSP ). Relevant clauses of the UL (UASL) are- (a) Clause 16 of Part - I: Other Conditions: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 9.5: ...RJIL shall provide a forecast in writing in advance for its requirement of port capacity for Telephony Traffic for the next 6 months to enable IDEA to dimension the required capacity in its network... 21. The relevant clauses of the ICAs are- a) Clause 2 makes clear that the ICA will be applicable and in effect from the date of execution; b) Clause 2.10 makes clear that the interconnection facilities at each POI will conform to the applicable QoS standards prescribed by TRAI; c) Clause 3 - Terms and Amendments - again makes clear that the ICA becomes applicable, effective and operational from the date of execution and is valid until both parties hold a valid licence for providing access services; d) Clause 4 - Applicability and Providing Services - reiterates that the ICA becomes applicable on signing and is subject to the terms and conditions of the telecom licence; e) Clause 5.2 specifically provides that for the initial two years, provision and augmentation of transmission links shall be at the cost of RJIL; f) Clause 5.7 contemplates conversion of two-way E1s into one-way E1s only after two years, which in other words mean that for two years al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amongst service providers including fixing the terms and conditions of entire activity between service provides and laying down the standards of quality of service (QOS) to be provided by service provider. In exercise of its function TRAI has issued detail Regulations for Telecom Services including fixation and revision of tariffs (Tariff Order), fixation of inter connect usage charges (IUC), prescription of quality of service standards etc. (ii) The Telecom Regulators which include the petitioners namely Idea Cellular, Bharati Airtel, Vodafone Ltd. as well as the respondent Reliance Jio Infocom provides Telecommunication Access Service and are PAN India Telecom Service Providers. The Service Providers are governed by the Cellular Mobile Telephone Service (CMTS)/Unified Access Service Licence (UASL) issued by Tele Communication Department, Government of India under Section 4 of the Indian Telegraph Act. (iii) The Central Government has exclusive privilege of establishing, maintaining and working telegraphs under the Indian Telegraphs Act and the Central Government is authorised to grant licence on such terms and conditions and in consideration of such payment as it thinks fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , licensor is liable to be treated for breach of terms and conditions of licence. In order to render effective services, it is mandatory for the licensee to interconnect/provide points of interconnection to all eligible telecom service providers to ensure that calls are completed to all destinations and interconnection agreement is entered into between the different service providers which mandates each of the party to the agreement to provide to the other, interconnection traffic carriage and all the technical and operational quality service and time lines i.e., the equivalent to that which the party provides to itself. The interconnection agreement separately entered into different service providers, is based on the format prescribed in the Telecommunication Interconnection (Reference Interconnect Offer) Regulation 2002. Provisions of points of interconnect is the pivotal point around the present litigation. 26. On 7 June 2005, the direction was issued under Section 13 read with sub-clause (i), (ii), (iii), (iv) and (v) of sub-clause (b) of Section 11 of the TRAI Act which provides as follows:- In exercise of the powers vested in it under section 13 read with sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itive market therefore, it is necessary for the TRAI to take into account the interest of the existing providers and the new competitors and also the interest of the consumers. The authority is therefore, required to consider and keep in mind the marketing strategy of the service providers, existing or new, in the interest of the consumers and the market itself. The balance needs to be struck by the Authority, by keeping constant monitoring and making rules and regulations and implementing them effectively. 28. Therefore, taking overall view of the provisions of the TRAI Act and the authority so provided, keeping in mind their obligations and being of regulatory authority in the telecom sector, no other authority and/or Act takes away and/or override the power and the authority of the specified authority and its jurisdiction to deal and decide the aspect of Quality of Service , in the telecommunication service sectors and the respective obligations of service providers. Restricted bundle of facts to understand the controversy and to decide the Writ Petitions (Noted from Idea Petition)- 29. By notification dated 7 June 2005, TRAI issued directions under Section 13 read wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices before its commercial launch... and that ...RJIL, on reasonable grounds, is expecting over 100 million subscribers in the first year post launch of services. This combined with the initial pent-up demand for services may result in upwards or 25 million subscribers 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 )... 32. RJIL provided a forecast for POIs based on inter alia an assumption of ...an average call duration of 54 seconds... : 3,281 POIs (i.e. 2,586 Access POIs and 695 NLD POIs) for initial scenario of 22 million subscribers ( ...for which number series is already allotted... ) expected in the first quarter after launch. Immediate demand for POIs; Demand for 7,056 POIs (i.e. 5,703 Access POIs and 1,353 NLD POIs) for 50 million subscribers at the end of 3 months; Demand for 9,064 POIs (i.e. 7,326 Access POIs and 1,738 NLD POIs) for 75 million subscribers at the end of 6 months; and Demand for 10,070 POIs (i.e. 8,140 Access POIs and 1,930 NLD POIs) for 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffic congestion as per the agreement clauses... 37. On 3 August 2016, Airtel (as leader of IDOs) (deliberately delayed misleading) reply to TRAI's letter dated 19 July 16 (after 2 weeks), stating that necessary action has already been taken for augmentation of POIs for meeting. On 4 August 2016, RJIL wrote letter to TRAI indicating extreme situation of denial of POIs, giving figures of insufficient POIs. On 8 August 2016, 11 August 2016 and 22 August 2016, Cellular Operators Association of India ( COAI ) issued a letter to the DoT stating inter alia that RJIL was providing ...full-blown and full-fledged services, masquerading as tests, which bypass Regulations and can potentially game policy features like the IUC regime, non-predatory pricing, fair competition, etc... and requesting the DoT's urgent intervention in the matter to ensure compliance to licence conditions and to the TRAI regulations and guidelines. COAI's letters dated 11 August 2016 to the DoT and the TRAI stated that:- ...COAI has not solicited RIL Jio in this response. However, the points made herein represent the views of the majority of the members of COAI... COAI's August 22, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter to Dot, TRAI, PMO, Mof MoC about launch of RJIL's services, stating that they are in no position to provide POIs requested by RJIL. The RJIL wrote to the Petitioner informing them that it would be commencing commercial operations on 5 September 2016. On 5 September 2016, RJIL launched commercial operations. On 6 September 2016, COAI issued letters to the DoT and the TRAI stating that despite the commercial launch of services by RJIL, there was no change from the pre-launch situation. The letter states: ...The issues indicated below are the views of the majority members of COAI. They may not represent the views of one or our members namely RJio, whose views have not been solicited on this issue... Further, ...Every member of COAI unanimously agrees with this letter except for RJio and RJio may represent separately in the matter... On 9 September 2016, The TRAI convened a meeting of service providers (including the Petitioner and RJIL) to look into RJIL's complaints of inadequate POIs. Between 12 September 2016 to 20 September 2016, the Petitioner, RJIL and the TRAI exchanged 7 letters regarding POI allocation. On 15 September 2016, RJIL's 4th letter to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s meeting dated 30 September 2016. On 20 October 2016, the TRAI issued a letter to the Petitioner and other telecom service providers informing them that RJIL's offer of free services is, inter alia:- ...consistent with the guidelines on promotional offers... and ...the tariff plans filed with TRAI cannot be considered as IUC non-compliant, predatory and discriminatory at present... ( TRAI Tariff Order ). 42. On 21 October 2016, TRAI recommended to the DoT to impose a penalty of INR 950 crore on contesting service providers. ...non-compliance of the terms and conditions of license and denial of Interconnection to RJIL... ( TRAI Recommendation ). On 22 October 2016, the Petitioner provided RJIL with 1,300 dedicated one-way NLD POIs for RJIL's outgoing traffic. On 2 November 2016, The Petitioner provided RJIL with: (a) 6,000 dedicated one-way Access POIs; and (b) 1,865 dedicated one-way NLD POIs, for RJIL's outgoing traffic. On 3 November 2016, Airtel's letter to RJIL allocating addl. E1s after more than 5 months (re:RJIL's letter dated 21 June 2016 and 12 October 2016) w/o any explanation for the delay; whereas, Airtel accepted to provide 75 mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017, TRAI, after accepting most of the Petitioner's reasons in its letters dated October 12, 2016 and November 9, 2016, issued an order imposing a nominal penalty of INR 1,90,000 for rejection of MNP requests for 19 numbers only. On 19 January 2017, The Petitioner filed Writ Petition (Civil) No. 685 of 2017 before the Delhi High Court against the TRAI Recommendation. On 27 January 2017, the Petitioner provided RJIL with (a) 11,515 dedicated one-way Access POIs; and (b) 3,960 dedicated one-way NLD POIs for RJIL's outgoing traffic. On 28 January 2017, for the first time since the Petitioner's letter dated November 29, 2016, RJIL issued a letter to the Petitioner providing them with the assumptions behind their demand for additional POIs dated November 16, 2016 inter alia on the assumption of ...an average call duration of 180 seconds... Further, demonstrating a complete change in its stance, RJIL stated that:- ...the E1s provided by Idea are significantly less than RJIL's requirement of the E1s to meet the expected traffic. The current number of E1s is also falling short of the actual requirements to meet the QoS requirements... 45. On 31 January 2017, Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble with the Commission, it is difficult to say that there is a prima facie case... made out against the Petitioner and others and accordingly, ...the instant cases ought to be closed under Section 26(2) of the Act... (hereafter Dissent Note ). 47. On 24 May 2017, the TRAI responded to the DoT's reference dated April 5, 2017 and reiterated its position in the TRAI Recommendation, including inter alia recommending to the DoT to impose a penalty of about INR 950 crore (Approximately) on the each Petitioners/Service providers. 48. On 8 June 2017, Respondent-2 issued a letter of investigation to the Petitioner seeking call data records in respect of certain identified mobile numbers by 19 June 2017. On 19 June 2017, Respondent-2 issued a letter of investigation to the Petitioner seeking detailed information/documents to be furnished by June 30, 2017. On 20 June 2017, the Petitioner filed Civil Writ Petition No. 7164 of 2017 before the Bombay High Court seeking inter alia to quash the Impugned Order. On 21 June 2017, DG issued notices to Idea and COAI for information/documents. On 27 June 2017, the Petitioner issued a letter to Respondent-2 requesting for an extension of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot taken on record. On 2 August 2017, the Petitioner filed its Affidavits-in-Rejoinder to the Affidavits-in-Reply of RJIL, Respondent-1 and Respondent-2 and Respondent-4. On 3 August 2017, the Petitioner received a letter from Respondent-1 confirming that:- ...the revised charts do not form a part of the record in respect of Case No. 81 of 2016, and/or Case No. 83 of 2016 and/or Case No. 95 of 2016... On 28 July 2017, the Petitioner mentioned the matter before the High Court out of turn to seek time for filing its Affidavits-in-Rejoinder. The High Court was pleased to grant the Petitioner time till 3 August 2017. The order passed by the Hon'ble High Court also recorded that: ...the statement made on June 30, 2017 by the learned counsel appearing for the respondent nos. 1 and 2 shall continue till next date of hearing... 52. On 4 August 2017, RJIL served its Further Affidavit-in-Reply dated August 3, 2017 on the Petitioner. On 7 August 2017, the High Court was pleased to grant the Petitioner time to file its Further Affidavit-in-Rejoinder to RJIL's Further Affidavit-in-Reply. The High Court also recorded that the statement made by Counsel for Respondents 1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d conduct of the ITO's and the Commission was not an unilateral action by each of the ITO's. The Commission therefore directed the DG to cause investigation into the matter as per the provision of Section 26(1) of the Act and the Director-General was directed to complete the investigation within period of 60 days. The dissent note/minority view, however, was of the opinion that on the basis of material available with the Commission, it was difficult to say that there is a prima facie case to hold that the ITO'S along with COAI had acted in a concerted manner to restrict RGIL's entry into market or to limit or control supply, technical development of provision of services provided by RJIL. According to the opinion of minority the instant cases ought to have been closed under Section 26(2) of the Act. Rival contentions of the parties- 55. Learned Senior Counsel Shri Harish Salve appearing on behalf of RJIL raised a preliminary objection on three counts namely: i) Maintainability of the writ petition in the light of the judgment in case of Competition Commission of India Vs. Steel Authority of India Ltd. 2010 (10) SCC 744 ii) Territorial Jurisdiction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved by the order passed by the TRAI imposing penalty upon them for non supply of points of interconnect, however, since they did not secure any relief there, they have approached this Court. 59. We have heard the respective senior counsel representing the petitioners in response to the said preliminary objection. Shri Khambatta, learned Senior Counsel invited our attention to the fact that the Petitioner Telecom operators provide service in the State of Maharashtra and the effect of the impugned order would be felt in the State of Maharashtra. He argued that since the points of interconnect were to be provide connectivity in the State of Maharashtra, a part of cause of action leading to the filing of the present writ petition has arisen in the State of Maharashtra and therefore the Bombay High Court would definitely have jurisdiction to entertain the present petition. He relied upon the following judgments to support his contention. (i) In Navinchandra N. Majithia Vs. State of Maharashtra Ors. (2000) 7 SCC 640 (Also see Rajendran Chingaravelu Vs. R.K. Mishra, Add. Commissioner of Income Tax Ors. (2010) 1 SCC 457, (paragraphs 44 and 45), the Supreme Court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shtra and, therefore, the Bombay High Court will have jurisdiction to deal with the present writ petitions. 61. As regards the meeting, the argument of the learned Senior Counsel Shri Salve of Forum Convenience, he submits that it is the party who is dominus litus and he has to choose amongst the jurisdiction if both the courts have jurisdiction and they have chosen jurisdiction of this Court. 62. In support Shri Khambata relied upon the judgment in the case of Nasiruddin Vs. State Transport Appellate Tribunal 1975 (2) SCC 671. Para 37 of the said judgment reads as follows: It would be open to the litigant who is the dominus litis to have his forum conveniens. The litigant has the right to go to a court where part of his cause of action arises. In such cases, it is incorrect to say that the litigant chooses any particular court. The choice is by reason of the jurisdiction of the court being attracted by part of cause of action arising within the jurisdiction of the court. 63. Responding to the preliminary objections of learned senior counsel Shri Harish Salve, learned senior counsel Shri Janak Dwarkadas appearing for the Petitioner in WP No. 7173 of 2017 has argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prima facie opinion in terms of section 26(1) of the Competition Act. According to the learned Senior Counsel recording the minimum reasons substantiating the formation of opinion is a safeguard and it has been so observed by the Apex court in para 97 of the said judgment and thus it is always open to the judicial review. It is vehemently argued that the Supreme Court in the said judgment was neither concerned with nor it has opined - either in the form of obiter or by way of passing a reference - an order recording minimum reasons by which a prima facie opinion is formed under section 26(1) of the Competition Act, is not amenable to judicial review even if the same was arbitrary, unreasonable, perverse without application of mind and in excess of jurisdiction. According to the learned senior counsel the order of investigation of the nature contemplated by the Competition Act would amount to an unreasonable restriction on the petitioners' fundamental right to carry on business guaranteed by the Article 19(1)(g) of the Constitution of India and hence, this court in exercise of powers under Article 226 would review such a decision. Learned senior counsel Shri Chagla also advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was executed with RJIL which contain the following important clauses:- a. For the first two years, RJIL is responsible for the provision and augmentation of transmission links interconnecting RJIL's network to Idea's existing switches as specified in Schedule 1 to the interconnection agreement; b. RJIL is obliged to provide to Idea a forecast six months in advance to enable Idea to augment the required capacity on its network; c. In case any further POIs apart from switch locations set forth in Schedule 1 is agreed and established between the parties during the initial period of 2 years, the cost is to be borne by RJIL; and d. Traffic measurement for 7 days during busy hour every six months has to be taken to determine further capacity requirements. 68. According to Senior Counsel, the TRAI fixes Usage Charges under the Telecommunication Interconnection Usage Charges (IUC) Regulation 2003 (The Regulation). According to him, the RJIL started its operation in December, 2015 and on 21st June, 2016 they addressed a letter to the opposite parties informing that RJIL is conducting test trial of its services before its Commercial launch ... and that RJIL, on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffers from grave perversity. He contends that the Commission had permitted them to file their written submissions and invited them for conference of three dates and the Cellular operators have placed material before the Commission. Once the said course was adopted by the Commission it was mandatory on the part of the Commission to look into the said material and before arriving at a prima facie case it had to apply its mind to the material in hand and form a prima facie opinion on the basis of the said material. The learned Senior Counsel argued that the Commission arrived at a finding which is not based on the material placed before the Commission and in fact the very relevant material was kept out of consideration before forming a prima facie opinion and one of the relevant material being the chart submitted by Idea as well as the Cellular Operators before the Commission demonstrating that the demand raised by RJIL for points of interconnect was met by the Operators from time to time and in fact more points of interconnect were supplied than they were demanded. However, the majority decision of the Commission did not even advert to the said charts. According to him, the non-con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or by producing anything that is not on or part of the record... (emphasis supplied) 71. In regard to the maintainability of the writ petition in the light of the judgment in the case of SAIL (Supra), the learned Senior Counsel submitted that the jurisdiction of the Court is not ousted if the Court finds that the finding recorded by the Commission in forming of Prima facie opinion is found to be perverse. 72. According to him the order of the Commission speak for itself since two members have recorded a dissent finding and whatever was not considered by the majority members have been reflected in the order of the minority and on consideration of the said material the minority had arrived at a conclusion that no prima facie case exists. 73. The learned senior counsel Shri Dwarkadas submitted that a Telecom Industry is well regulated and the contract is a statutory contract entered into between the service providers. The terms of the contract mandate provision of POIs and the manner, the number, the time at which it is to be provided is stipulated under the Agreement. The grievance is about denial or the delay in provisions of POIs, which is nothing but alleged breach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commission. 75. As regards the contention that the platform of COAI was used which amounted to cartelisation, our attention was drawn to the complaints made by the COAI and it is argued that it is not an unreasonable complaint as the COAI's was making the grievance to the telecom regulator by pointing out the manner in which the RJIL was functioning and creating the subscriber base in the test phase when it had not commercially launched its services. It is argued before us that it is most appropriate for the COAI to approach the Service Regulator with their grievance and in any sense it can amount to cartelisation. Not only that a representation was also made to the Finance Minister, raising the grievance. 76. The impugned order of the Competition Commission is also assailed on the ground that it takes into consideration irrelevant material like the recommendations of TRAI dated 22.10.2011. It is argued by the learned senior counsel that the Competition Commission, with the majority judgments of the Competition Commission, adheres great importance to the findings of TRAI as a sectoral regulator. The Commission in paragraph 9 of its order refers to the information ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prafullya Kumar Gayen Ors. (1997) 5 SCC 76 and Atlas Cycle Haryana Limited Vs. Kitab Singh 2013 (12) SCC 573. According to him the malice in fact is reflected from the order of Commission in view of the non-consideration of the material in the form of the chart in which the petitioner service providers have demonstrated that they had applied for POIs more than what was demanded by the RJIL. According to him, the Commission before arriving at a prima facie case and forming an opinion to make an enquiry into the existence of anti-competitive agreement, ought to have focused whether an agreement exists on the basis of any material submitted before it and whether such an agreement which had effect of delaying/denying POIs to RJIL was anti-competitive and likely to cause an apprehensible adverse effect on competition. However, the Commission has placed reliance on TRAIs' recommendations dated 22.10.2016 though they had not attend finality, without adverting to the effect whether the demand raised by the RJIL was reasonable demand and whether there was application on the part of the Petitioners to satisfy the said demand when RJIL was in itself test phase and had not yet commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adverse effect on competition under section 3 pre-supposes an existence of a market. According to Shri Chinoy, the RJIL was not a telecom service provider prior to 05.09.2016 and it had become a service provider only on 05.09.2016 on its commercial launch and in fact he also submitted that the RJIL is also submitted its report of subscriber base and QOS as per the regulations only after 05.09.2016. He attempted to draw distinction between the terms subscriber and customer and according to him mere acceptance of KYC forms from the consumer do not make them subscriber. As per Shri Chinoy since the said issue of existence of market goes to the root of the matter, the order passed by the competition Commission, declaring the conduct of COAI as anti competitive is totally perverse since it pre-supposes the market. 79. We have heard learned senior counsel Shri Aney, who was ably assisted by Advocate Shri Naushad Engineer appearing on behalf of the competition Commission of India. Learned counsel Shri Aney does not dispute the proposition canvassed by the learned counsel for the petitioner that the court in exercise of its writ jurisdiction would interfere only when a demonstrabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on behalf of the ITOs and COAIs in the manner of allotment of POI. According to Shri Aney the telecom regulatory authority has already concluded that the denial of POI was in violation of interconnect agreement and fine has been levied. According to him, the COAI has taken a stand on the issue and has not only written communication to the regulatory authority. According to him the qualitative and quantitative aspects of the chart was looked into by the Commission, which lead to an irresistible conclusion that there was breach of terms and conditions of agreement by the petitioners operators and it passed an order on 22 October 2016. The supply of POI was minimal and it increased only after the order of TRAI and according to him the Commission has to look into the conspectus of matters with a view point of consumer and thus there is no perversity in the order passed by the Commission. According to him though the Commission was not a duty bound to call the opposite party for hearing and afford them an opportunity or look into the material, the Commission has looked into the material and arrived at a conclusion since there was sufficient material to order an investigation in exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mean that there was any ambiguity or any gray area in the Regulatory regime. It is also contended that the extensive test phase was necessitated for RJIL since it was using a unique technology in the form of LTE data and office video messaging (OVM) and it wanted to test a new category of device that supported its VVITE technology and therefore there were no definite benchmarks to follow the requirement of testing. According to RJIL, it was deploying cutting edge technology on an unprecedented scale, which would have effect of making high-speed voice and data access available to customer across the country at prices that were a fraction of those offered by competitors and in this background they demanded the POI based on its forecast from time to time which was not timely provided. 83. Shri. Sathe also contended that the Commission was duty bound to find whether there was any agreement in any form whatsoever which was likely to cause an appreciable adverse effect on competition and the complaint of RJIL made to the Commission was that the ITOS with the COAI had entered into such agreement into which had appreciable adverse effect on the competition under Section 3 and formed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor. Further, according to the learned Senior Counsel, demand was made for POIs since RJIL was ready for launch and the petitioners have refused to provide such POIs and thereby attempted to stop the entry of RJIL into the market when RJIL was ready to arrange for all the expenses. As regards the test phase argument of the Counsel for the petitioners, learned Senior Counsel responded that it was the choice of the TSP to load his network with testers to test the load factor and when he had 22 million subscribers on 21st June, 2017, it was approximately one lakh testors for each State. Moresoever, according to him, the petitioners did not make any grievance with RJIL in respect of test period. Shri Ramji Shrinivasan has bifurcated the period schedule involved in the matter into four periods, first period being from December, 2015 to 21 June 2016, second period from the date of demand on 21 June 2016 till 1 September 2016 i.e. the date of prelaunch, between 1 September 2016 to 8 November 2016 when RJIL had commercially launched and a period 8 November 2016 i.e. after completion of RJIL to the Commission. He took us through various communications extended between the parties during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that event it shall be 'preliminary conference', for whose conduct of business the Commission is entitled to evolve its own procedure. (3)(4) .... (5) In consonance with the settled principles of administrative jurisprudence, the Commission is expected to record at least some reason even while forming a prima facie view. However, while passing directions and orders dealing with the rights of the parties in its adjudicatory and determinative capacity, it is required of the Commission to pass speaking orders, upon due application of mind, responding to all the contentions raised before it by the rival parties. 87. Now, let us examine what kind of function the Commission is called upon to discharge while forming an opinion under Section 26(1) of the Act. At the face of it, this is an inquisitorial and regulatory power. A Constitution Bench of this Court in the case of Krishna Swami v. Union of India (1992) 4 SCC 605 explained the expression 'inquisitorial'. The Court held that the investigating power granted to the administrative agencies normally is inquisitorial in nature. The scope of such investigation has to be examined with reference to the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the stated provisions has been committed and continues to be committed or is about to be committed; (b) it is necessary to issue order of restraint and (c) from the record before the Commission, there is every likelihood that the party to the lis would suffer irreparable and irretrievable damage, or there is definite apprehension that it would have adverse effect on competition in the market. This Judgment has been followed in following other cases. (a) Kingfisher Airlines (Supra)- 24. ......There could therefore be no impediment in taking any action under the new Act. Even otherwise, the provisions of the M.R.T.P. Act and the Competition Act are not identical. Since no action whatsoever is taken or proposed to be taken by the M.R.T.P. Commission, there could be no question of the petitioners being subjected to double jeopardy. Further, the M.R.T.P. Commission now stands abolished w.e.f. 14th October, 2009. There is, therefore, no question of M.R.T. P. Commission now taking any action against the petitioners. This ground of challenge has no substance at all. (b) Chettinad International Coal (Supra):- 35. ....This Court refrains from entering into the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous that no reasonable person could ever have arrived at such conclusion; g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i) the finding of fact is based on no evidence. The case in hand falls within the ambit of above clauses itself. Therefore, a case for judicial review. 88. The following Judgments of Supreme Court on interpretation of Competition Act required no discussion as it is settled position of law, but we have to consider the facts and circumstances of the case in hand. (a) Excel Crop Care Limited (Supra) 45. ... ......... Even when the CCI forms prima facie opinion on receipt of a complaint which is recorded in the order passed Under Section 26(1) of the Act and directs the DG to conduct the investigation, at the said initial stage, it cannot foresee and predict whether any violation of the Act would be found upon investigation and what would be the nature of the violation revealed through investigation. If the investigation process is to be restricted in the manner projected by the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Commission after considering the compilation of documents, charts, filed by the rival parties, the Commission has called the parties for the conferences by exercising its discretion and permitted the counsel to explain the respective charts/case. Such impugned order cannot be treated and/or termed as administrative order and/or direction as observed in SAIL (Supra). The principle and interpretation given by the Supreme Court and other High Courts needs no discussion. But at the same time the High Court, under Article 226 of the Constitution of India and/or even otherwise, is required to consider the rival contentions so raised, based upon the records and the law. It is settled that the validity of administrative order is required to be judged by the reasons mentioned therein, and it cannot be supplemented by the additional reasons, through the affidavit and oral and written submissions, in subsequent proceedings. In T.P. Senkumar, IPS Vs. Union of India Ors. (2017) 6 SCC 801 the Apex Court, though in service matter, has considered the nature of administrative order , as under:- 80. In this context the following passages from M.A. Rasheed Vs. State of Kerala (1974) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it was said:- 9 ...... Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. This view was affirmed by the Constitution Bench of this Court in Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405. 94. The subjective satisfaction of the State Government must be based on some credible material, which this Court might not analyze but which can certainly be looked into. Having looked into the record placed before us we find that there is no material adverse to the interests of the Appellant except an expression of opinion and views formed, as far as he is concerned, as late as on 26-5-2016. This make-believe prima facie satisfaction by itself cannot take out judicial review of administrative action in the garb of subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under the Competition Act. Territorial Jurisdiction- 96. The preliminary objection raised that the Petition is not entertainable/maintainable in this High Court of Judicature at Bombay, is also devoid of any merit. There is no issue and/or denial to the facts that the part of cause of action arose in Mumbai and/or the State of Maharashtra. The parties have placed material on record including the affidavits and the averments so made in the Petition, which supports the fact that the part cause of action arose in Maharashtra, including in Mumbai. The relevant averments in this regard of the respective Petitioners, in the Petitions are read and referred by the Senior Counsel. 97. The substantial client/consumer base is in State of Maharashtra. The Respondents/service providers Officers' are at Mumbai. The affidavits and averments and the documents so placed on record, show that the various correspondences/the documents have been exchanged by and between the parties, within the jurisdiction of Maharashtra State including Mumbai. Both the parties have substantially argued the matter by referring to the affidavit and the documents/charts, which are necessary to adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents Jio and CCI. This impugned majority order, in fact, has decided several issues and elements though stated to be in prima facie nature, ultimately entail into the DG to inquire and investigate with clear adverse consequences, so recorded revolving around the Competition Act, by overlooking the provisions of TRAI Act/Contracts, between parties. Power and jurisdiction under the TRAI Act and the Competition Act:- 101. The information is filed based upon the averments around the various breaches committed by the Petitioners-service providers under the agreement by not providing timely POI, though demanded from time to time, that as stated resulted into failure of calls of Jio/consumers. The stated deliberate delay , denial had resulted into congestion , as alleged, was with collusive attempt to thwart the launch and/or entry of Respondent-RJIL into the telecom market. This alleged action in concert falls within the ambit of Sections 3 and 4 of the Competition Act. These averments itself make position clear that the parties have entered into the various agreements/contracts, as required under the TRAI Act. Thus, the agreement clauses and its interpretation is necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndable situation. If party or person, service providers, having business understanding in the market, willing to provide as and when demanded the IPOs of any numbers, the Court and/or third person will not be in a position to interfere with it. The parties can sit and settle even such disputes at any point of time. But when the controversy is raised, considering the facts and circumstances, the authority/Tribunal and/or the Court is required to decide it in accordance with law of the market. The Association role, in view of uncleared position in the market or vagueness about the rights and obligations, in such situation, is important. We are considering the power and jurisdiction of the respective statutory authorities under the respective Acts. 103. The Competition Act, in view of the scheme so elaborated in earlier paragraphs, empowered the Commission and/or authorities to exercise functions of prohibitive and constructive in nature. It is vested with inquisitorial investigation, regulatory and adjudicatory and as stated some extent advisory jurisdiction. The Competition Act is entertained to ensure fair competition in India by providing trade practice, which causes appreciabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pervision of the authorities under the TRAI Act. Therefore, if any dispute and/or issue and/or any question of interpretation arises in respect of any terms and conditions and/or policy decision and/or of any rights and obligations of the respective service providers, it is the authorities under the TRAI Act, which is specifically empowered to deal and decide the same. The Government and the concerned department, in the interest of development of such market, keeping in mind the technology and need, made it compulsory for every service providers to work and run their respective telecom business in the concern market within the framework of guided principles. The TRAI Act, Section 11(1)(a)(b), empowers to make recommendation on the specified subjects so provided. The same is recommendatory and has no binding effect on the Central Government being executive power/decision. But, this by itself, is no reason for other authorities, like the Commission under the Competition Act, to treat the same, as final and binding. Admittedly, the recommendation is under challenge and the matters are pending in the High Court. The informant, in fact has asked for the specific performance of the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice, still required final adjudication. The recommendation also could not have been used as a material evidence and/or the settled position of controversy arising out of the agreements. The dissent note expressly observed that the recommendation cannot be relied upon. Though subsequently, the TRAI has reiterated its recommendation, but the DOT- the licensor, has not yet acted upon it. The fact of the pending challenge in the high Court against the order recommendations also is relevant factor in favour of the Petitioners' submission. The submission that the TRAI, in any way, cannot determine the service providers' collusion and cartelisation, is wrong approach, unless the contractual terms of ICAs and respective rights and obligations are finalized. Definitely, the Commission has no jurisdiction to decide it. It is therefore, clear that the majority decision has wrongly relied upon the recommendations and proceeded upon it. The reliance of recommendation was impermissible to initiate the inquiry. In any way, the impugned order/decision cannot be explained by additional reasons and/or by the oral submission, during the course of the arguments. The market comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot even recorded in the majority decision. 108. DOT circular dated 29 August 2005 provides that test service card can be given to the business partners or employees. The circular clarifies that the test/service cards and cards given to the employees are to be deducted in order to arrive at subscriber of the TSP. The test user, therefore, cannot be treated as subscriber. The majority view no way dealt with and decided the said important issue and has not even made any observation, rightly so, for want of jurisdiction in itself. It is clear from the explanation to the said circular that this test/service cards are required to be given free of costs to business partners including the operator to check the quality of service from time to time, so is the position that of the cards given to the employees, on which no revenue is generated. These persons, therefore, are test trial users during this test period and cannot be treated as subscriber . Whether this circular and/or the clauses revolving around the same covered the case and situation of test phase or period is itself another issue which the Commission even after collecting the information could not have decided. The TRAI, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rights and effects, is unacceptable in the facts and circumstances of the case. 110. We are not inclined to accept the situation that both the Authorities, under the respective Acts to continue the proceeding and after final decision by the TRAI Authority, the Commission will pass final order under the Competition Act. The Commission ought not to have proceeded with inquiry in view of pendency of the litigation in High Court, arising out of the same terms and conditions and rights and obligations of the service providers from same agreements. 111. The collection of information, pending legal issues before the Competent Authority in advance, is impermissible and unjustifiable. It definitely, cause injustice, and affect the rights of reputation, name and fame in the market. 112. As scope and challenge is limited, we are not dealing the merits of the matters, arising out of it. But definitely, considering the scope and object of the Competition Act and the power of Authorities, keeping in mind the telecom sector markets, governing law and the government policy. The Judgments so cited by the Respondents/CCIA/RJIL, are distinguishable on the facts and the law itself. No case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction of Telecom Dispute Settlement and Appellate Tribunal TDSAT , by excluding the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) Tata Teleservice (Supra), the Consumer Protection Act. There is no issue that under the TRAI Act, as per the provisions of the Competition Act, related orders/actions/compensation cannot be awarded. There is no question of conflict of laws, in view of above position. The Judgment of Telefonakiebolaget LM Ericsson (PUBL) (Supra) para 168 and 175 are of no assistance. Above all, the supporting submissions so read/made by the learned counsel appearing for the Respondents, including CCI, not dealt and decided and/or even touched by the CCI in the impugned majority order. It is settled that the authorities cannot act and/or substitute the reasons, through their submissions and/or affidavit for the first time while defending such orders. The law is settled in this regard. 116. Once the aspect of jurisdiction goes to the root of the matter, non-challenge of earlier decision in other matters that itself, no way, empower the Commission to have a jurisdiction to deal with the controversy in hand. In the present case, we are not inclined to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are dealing with, as contended, the majority decision. There was no specific challenge raised by the Respondents to the decision given by the minority members of the Commission. The other Respondents, therefore, cannot be permitted to challenge in argument, for the first time, the minority decision. The majority decision for the reasons so recorded in the Judgment, is without jurisdiction. The majority decision/action/order is liable to be quashed and set aside, being perverse. [Atlas Cycle Haryana Limited (Supra)]. The Supreme Court has reiterated the position that a finding, by overlooking the material on record would amounts to perversity and in Writ jurisdiction it can be interfered with. [Achutananda Baidya (Supra)]. 118. The Co-operation and co-ordination if volunteered by one provider to other, irrespective of such demand, and if both the parties act accordingly with adjustment and settlement, there is no issue which is required to be considered by the Authorities under both the Acts. However, when the issues are raised and created because of a new practice and in absence of precedent, it required to be settled by the competent Court/Tribunal under the market governing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to its free services. The Reliance's free services/offer during the test phase period in huge number, was the issue in the telecom market, since it was unprecedented. The commercial innovation of one service provider, based upon the new technology is always welcome, but, it is also depend upon the others' connectivity and/or interconnection and the concerned authorities are required to deal and facilitate the solution for all. There was admittedly no agreed specific clause and/or provisions and/or agreement entered into by and between the service providers, in question. The confused/gray area is required to be dealt with and handled by such Association, in representative capacity. Therefore, any representation made in this background commenting upon huge Free Service/cards not only to the employees and/or close relatives, but to the millions new potential consumers in test phase period, who were not prescribed Subscribers cannot be treated as an attempt to thwart the progress of new Entrant. The co-ordination and co-operation and the guidance are needed, as it has direct bearing on the interconnection and/or interlinked with other existing service providers as a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable demands , for want of conditions in the respective licenses (Unified licenses) and the clarification sought, in no way, can be stated to be with intent to stifle the launching by RJIL. Some Petitioners/service providers have shown the charts to demonstrate that from time to time they had supplied the sufficient POIs, keeping in mind the terms of the contract to provide reasonable POIs on demand . 122. The unreasonable demand, if objected and clarification sought from the Department/Government through the Association, in no way can be stated to be in breach of any provisions. RJIL information itself has shown there existed doubt and the issue revolving around the respective rights and obligations of the parties inter se. The recommendation was based upon the complaint/representation. Strikingly, as recorded and conceded that on 31 August 2016, RJIL has nil subscribers . Nothing is pointed out either in form of any practice, obligation and/or circulars and/or regulations, to provide such huge demand of POIs, in the test phase . The issuance of consultation paper by TRAI on this controversy of POIs during the test phase, supports the case of the Petitioners/provider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The concept of cartelisation is not new in any national or international, and/or commercial transaction and the market. The concept of cartel and agreement are defined under the Competition Act. There is no direct and/or written agreement on record to justify such impugned agreement/cartel. The Authorities are required to consider the facts and circumstances and such allegations, based upon the supporting material and the documents. The Apex Court in Competition Commission of India Vs. Coordination Committee of Artistes and Technicians of West Bengal Film and Television Ors.(Supra) has considered the aspects of stated cartelisation, though based upon the facts and circumstances of the given case. All in all, the Authorities are required to consider the facts and circumstances of the case and the stated agreements by and between the parties. The individual member and/or majority members and/or through Association attempted to control and/or thwart the progress of new entry is again a matter of evidence. Every majority decision of any Association cannot be treated and/or declared as cartelisation. The presumption of cartelisation and/or action in concert cannot be, opined, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs is subject to the judicial review. 127. Therefore, taking overall view of the matter, we are also of the view that the rights and obligations to provide POIs arise under the terms of the license, granted by the DOT and the terms of supply are governed by the interconnection agreements entered into by service providers with each other. It is relevant to note that the consultation paper of TRAI on these issues, further reiterates the fact of confusion and the controversy so agitated by the service providers and the COAI. Such grievances are genuine and bonafide. Therefore, no case is made out of any cartelisation by and through the COAI. The Parties material and/or suppression of material facts and/or incorrect information. 128. We have gone through the material placed on record. The controversy regarding denial/delay of POIs and/or correctness and/or suppression of facts and/or information and/or non-consideration of material information in the majority decision on merits, though we have heard substantially, as submitted by the parties to consider the bundle of facts, as necessary to decide the case in hand, but considering the reasons we are mainly dealing with the juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cannot be explained/clarified in such manner. The Commission should speak through its order and initiate the proceedings if case is made out to collect the stated facts and information. It is unacceptable to permit the Commission to collect the facts and/or information when it has not itself concluded the controversy about the rights and obligations of the parties based upon statutory agreements/regulatory authority's guidance/circulars. The stated conduct and/or cartel could not have been tested or inquired into unless their rights and obligations based upon the governing laws in the market are clear and settled, as the same binds all the respective service providers of the telecom sectors. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o declared from time to time, keeping in mind the need and the technology, under the TRAI Act. h) Impugned order dated 21 April 2017, passed by the Competition Commission of India (CCI) under the provisions of Section 26(1) of the Competition Act, 2002 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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