Bombay High Court
Bharati Airtel Limited And Anr vs Competition Commission Of India ... on 21 September, 2017
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8594 OF 2017
WITH
WRIT PETITION NO. 8596 OF 2017
Vodafone India Limited ....Petitioner
Vs.
The Competition Commission of India
represented by its Secretary & ors. ...Respondents
WITH
WRIT PETITION NO.7164 OF 2017
WITH
CAWST NO.17736 OF 2017
IN
WRIT PETITION NO. 7164 OF 2017
Idea Cellular Ltd. .....Petitioner
Vs.
The Competent Commission of India,
(through the Secretary) .....Respondents
WITH
WRIT PETITION NO. 7172 OF 2017
Cellur Operator Association of India ....Petitioner
Vs.
Competition Commission of India and Ors. ....Respondents
WITH
WRIT PETITION NO. 7173 OF 2017
Bharati Airtel Limited and Anr. ....Petitioners
Vs.
Competition Commission of India and Ors. ....Respondents
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APPERANCES:-
(1) W.P. No.8594/2017
Mr. Iqbal M. Chagla, Senior Advocate along with Ms. Pallavi Shroff,
Mr. Aashish Gupta, Mr. Ameya Gokhale, Ms. Meghana Rajadhyaksha,
Mr. Vaibhav Singh, Ms. Sukriti Jaiswal i/by M/s. Shardul Amarchand
Mangaldas & Co. for the Petitioner.
(2) W.P.Nos. 8594/2017, 8596/2017, 7172/2017, 7173/2017 and
WP No. 7164/2017
Mr. Iqbal M. Chagla, Senior Advocate along with Mr. Punit B. Anand &
Siddharth Rajamohan for the Petitioner in WP No.8596 of 2017 and
for Respondent No.6 in WP No.7172/2017, for Respondent Nos. 8 & 9
in WP No.7173/2017, for Respondent Nos. 9 & 10 in WP
No.7164/2017 and for Respondent No.10 in WP No.8594/2017.
(3) W.P. No. 8594 and 8596/2017
Mr. Amit Sibal, Senior Advocate a/w Mr. Sachin Mandlik, Ms.
Avaantika Kakkar, Mr. Ritin Rai, Mr. Raghav Shankar, Mr. Dhruv,
Rajain, Ms. Sakshi Aagarwal, Mr. Zacarias Joseph, Mr. Abhas
Kshetarpal, Mr. Kanwar Vivasan, Ms. Anvita Mishra, Mr. Rajagopal
Venkatakrishnan, Mr. Bhavuk Agarwal, Mr. Hiten Sampat i/by Khaitan
& Co. in W.P. No.8594 for Respondent No.5, for Respondent No.3 in
W.P.No.8596/17 i.e. Reliance Jio Infocomm Ltd.
(4) W.P. No.7172/2017
Mr. Aspi Chinoy, Sr.Advocate a/w Mr. Jafar Alam, Mr. Gautam Shahi,
Mr. Siddharth Ranade i/by Trilegal Advocates for the Petitioner.
(5) W.P. No. 7173 of 2017
Mr. Janak Dwarkadas, Senior Advocate with Mr. Navroz Seervai,
Senior Advocate with Mr. Harsh Kaushik, Ms. Kunal Dwarkadas, Mr.
Ankush Walia, Mr. Param Tandon, i/by Seth Dua & Associates for the
Petitioner.
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(6) W.P. No.7172/2017 and 7173/2017
Mr. Ramji Srinivasan, Senior Advocate a/w Mr. Sachin Mandlik, Ms.
Avaantika Kakkar, Mr. Ritin Rai, Mr. Raghav Shankar, Mr. Dhruv Rajai,
Ms. Sakshi Agarwal, Mr. Zacarias Joseph, Mr. Aabas Kshetarpal, Mr.
Kanwar Vivasan, Ms. Anvita Mishra, Mr. Rajagopal Venkatakrishnan,
Mr. Bhavuk Agarwal, Mr. Hiten Sampat i/by Khaitan & Co. for
Respondent No.4 in W.P.No. 7172/2017, for Respondent No.3 in
W.P.No.7173/17 i.e. Reliance Jio Infocomm Ltd.
(7) W.P. No.7164/2017 a/w CAWST No. 17736 of 2017 in W.P.
No.7164/2017-
Mr. Darius Khambata, Senior Advocate with Mr. Soli Cooper, Senior
Advocate along with Ms. Alka Bharucha, Ms. Swathi Girimaji, Mr.
Areen De, Advocates i/by M/s. Bharucha & Partners for the Petitioner
and for the Applicant in CAWST 17736 of 2017.
Mr. Harish Salve, Senior Advocate a/w Dr. Milind Sathe, Senior
Advocate a/w Mr. Sachin Mandlik, Ms. Avaantika Kakkar, Ritin Rai,
Mr. Raghav Shankar, Mr. Dhruv Rajain, Ms.Sakshi Agarwal, Mr.
Zacarias Joseph, Mr. Abhas Ksheterpal with Mr. Kanwar Singh, Ms.
Anvita Mishra, Mr. Rajgopal Venkatakrishnan, Mr. Bhavuk Agarwal,
with Mr. Hiten Sampat i/by Khaitan & Co. for Respondent No.5 in
W.P.No.7164/17 i.e. Reliance Jio Infocomm Ltd.
(8)W.P. NO. 8594/2017, 8596/2017 and 7164 of 2017
Mr. Shrihari Aney, Senior Advocate a/w Mr. Prateek Pai, Ritika Gadoya
i/by Key Stone Partners for Respondent Nos. 1 and 2 i.e. CCI.
(9) W.P. No. 7172/2017 and 7173/2017
Mr. Naushad R. Engineer, a/w Mr. Prateek Pai, Ritika Gadoya i/by
Keystone Partners for Respondent Nos. 1 and 2 i.e. CCI.
(10) W.P. No. 8594/2017, 8596/2017, 7172/2017, 7173/2017 and
7164/2017.
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Ms. Shruti Tulpule a/w Indrajeet Bhosale i/by Abhineet Pange for
Respondent No.3 in WP 7172 of 2017, for Respondent No.4 in WP No.
7164 of 2017 and WP No. 8594 of 2017, for Respondent No.5 in WP
No. 7173 of 2017 and for Respondent No.11 in WP No. 8596 of 2017.
CORAM : ANOOP V. MOHTA AND
SMT. BHARATI H. DANGRE, JJ.
DATE : 21 SEPTEMBER 2017.
ORDER :-
Today, all the matters are listed for order/judgment.
2 In view of the reasons already dictated and recorded, we
are pronouncing the conclusion and operative part of the Judgment in
the open Court today.
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
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Nos. 81 of 2016, 83 of 2016 and 95 of 2016 and
all the consequential actions/notices of the
Director General under Section 41 of the
Competition Act arising out of it.
b) The telecommunication Sector/Industry/Market is
governed, regulated, controlled and developed by
the Authorities under the Telegraph Act, the
Telecom Regulatory Authority of India Act (TRAI
Act) and related Regulations, Rules, Circulars,
including all government policies. All the
"parties", "persons", "stakeholders", "service
providers", "consumers" and "enterprise" are
bound by the statutory agreements/contracts,
apart from related policy, usage, custom, practice
so announced by the Government/Authority, from
time to time.
c) The question of interpretation or clarification of
any "contract clauses", "unified license"
"interconnection agreements", "quality of service
regulations", "rights and obligations of TSP
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between and related to the above provisions", are
to be settled by the Authorities/TDSAT and not by
the Authorities under the Competition Act.
d) The concepts of "subscriber", "test period",
"reasonable demand", "test phase and commercial
phase rights and obligations", "reciprocal
obligations of service providers" or "breaches of any
contract and/or practice", arising out of TRAI Act
and the policy so declared, are the matters within
the jurisdiction of the Authority/ TDSAT under the
TRAI Act only.
e) The Competition Act and the TRAI Act are
independent statutes. The statutory authorities
under the respective Acts are to discharge their
power and jurisdiction in the light of the object,
for which they are established. There is no conflict
of the jurisdiction to be exercised by them. But
the Competition Act itself is not sufficient to
decide and deal with the issues, arising out of the
provisions of the TRAI Act and the contract
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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/
Market, arising out of the Telegraph Act and the
TRAI Act.
g) The Authority under the Competition Act, has no
jurisdiction to decide and deal with the various
statutory agreements, contracts, including the rival
rights/obligations, of its own. Every aspects of
development of telecommunication market are to
be regulated and controlled by the concerned
Department/ Government, based upon the policy
so 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
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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
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Commission and the Authority, will not be in a
position to deal with the contractual terms and
conditions and/or any breaches, if any. The
uncleared and vague information are not sufficient
to initiate inquiry and/or investigation under the
Competition Act, unless the governing law and the
policy of the concerned "market" has clearly
defined the respective rights and obligations of the
concerned parties/persons.
j) Impugned order dated 21 April 2017 and all the
consequential actions/notices of the Director
General under the Competition Act, therefore, in
the present facts and circumstances, are not mere
"administrative directions".
k) Impugned order dated 21 April 2017 and all the
consequential actions/notices of the Director
General under the Competition Act, are therefore,
illegal, perverse and also in view of the fact that it
takes into consideration irrelevant material and
ignores the relevant material and the law.
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l) Every majority decision cannot be termed as
"cartelization". Even ex-facie service providers and
its Association COAI, have not committed any
breaches of any provisions of the Competition Act.
4 Hence the following order-
ORDER
a) Impugned order dated 21 April 2017, passed by
the Competition Commission of India (CCI) under
the provisions of Section 26(1) of the Competition
Act, 2002 in case Nos. 81 of 2016, 83 of 2016 and
95 of 2016 and all the consequential
actions/notices of the Director General under
Section 41 of the Competition Act, are liable to be
quashed and set aside, in exercise of power under
Article 226 of the Constitution of India. Order
accordingly.
b) All the Writ Petitions are allowed.
c) There shall be no order as to costs.
d) In view of the above, nothing survives in Civil
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Application (Stamp) No. 17736 of 2017 in Writ
Petition No. 7164 of 2017 and the same is also
disposed of. No costs.
(BHARATI H. DANGRE, J.) (ANOOP V. MOHTA, J.)
