Madras High Court
Tamil Nadu Generation And vs Competition Commission Of India on 22 December, 2021
W.P.No.35047 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.12.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.35047 of 2013
and
M.P.Nos.1 & 2 of 2013
Tamil Nadu Generation and
Distribution Corporation Limited
(TANGEDCO) represented by the
Chief Engineer / Commercial,
144, Anna Salai, Chennai – 600 002. ... Petitioner
Vs
1.Competition Commission of India,
Hindustan Times House,
(3rd, 4th & 7th Floor)
18-20, Kasturba Gandhi Marg,
New Delhi – 110 001.
2.Additional Director General,
Competition Commission of India,
'B' Wing, HUDCO Vishala,
14, Bhikaji Cama Place,
New Delhi – 110 066.
3.Southern India Engineering Manufacturers'
Association,
Rep.by Mr.T.C.Thiagarajan, President,
8/4, Race Course, Coimbatore – 18. ...Respondents
1/52
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
PRAYER : Writ Petition filed Under Article 226 of the Constitution of
India, to issue a Writ of Certiorari, calling for the records relating to the
Impugned Order dated 8.10.2013 of Case No.38 of 2013 on the file of the 1st
respondent and to the consequent letter dated 3.12.2013 on the file of the
2nd respondent and quash the same.
For Petitioner :Mr.J.Ravindran
Additional Advocate General
Assisted by Mr.L.Jai Venkatesh
For Respondents :Mr.N.Venkata Raman
Additional Solicitor General of India
Assisted by Mr.P.Mahaadevan
[For R1 & R2]
Mr.H.Karthik Seshadri
For M/s.Iyer and Thomas
[For R3]
ORDER
The impugned order dated 08.10.2013 of Case No.38 of 2013 and the
consequential notice dated 03.12.2013 on the file of the second respondent
are under challenge in the present writ petition.
2. The Competition Commission of India on receipt of complaint from
the third respondent / Southern India Engineering Manufacturers'
Association, found that it is evident prima facie Opposite Party was abusing
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
its dominant position by imposing discriminatory conditions in the sale of
electricity in the relevant market within the meaning of section 4 (2) (a) (i)
of the Competition Act, 2002. Thus, the Competition Commission of India
formed an opinion that it is a fit case for Director General investigation. The
Director General has to investigate the matter for violation of any / all
provisions of the Competition At and the said proceedings of initiation states
that “Nothing stated in this order shall tantamount to a final expression of
opinion on merit of the case and the Director General shall conduct the
investigation without being swayed in any manner whatsoever by the
observations made herein”. Thus, the proceedings dated 08.10.2013 is only
an acceptance of complaint and thereafter, a notice under Section 41(2) read
with Section 36 (2) of the Competition Act, 2002 in CCI Case No.38 of
2013 was issued to the writ petitioner in notice dated 03.12.2013, which is
under challenge in the present writ petition.
3. There is no need to adjudicate the merits of the case in the present
writ petition as the respondents are yet to adjudicate the merits of the case
by providing opportunity to the parties concerned. Thus, any discussion on
merits would cause prejudice to either of the parties and thus, this Court is
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
not inclined to adjudicate the merits with reference to the allegations raised.
4. The issues raised in the lis on hand are that the complaint filed by
the third respondent before the Competition Commission of India is not
maintainable and the Competition Commission of India has no power to
entertain any such complaint against the TANGEDCO overriding the
provisions of the Electricity Act and issue notice, which is without
jurisdiction. The Electricity Regulatory Commission is empowered to
adjudicate all such complaints or allegations relating to supply, services, etc.,
of electricity.
5. Regarding the maintainability of the writ petition under Article 226,
no writ needs to be entertained against a notice in a routine manner. A writ
against a notice may be entertained only on limited grounds. If the notice
has been issued by an incompetent authority having no jurisdiction or
directly hitting the provisions of the Act, or if any allegations of mala fides
are raised, then the writ petition is maintainable. Even in case of raising an
allegation of mala fides, the authority against whom such an allegation is
raised, must be impleaded as party respondent in the writ proceedings in his
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
personal capacity.
6. This Court is of the considered opinion that all the writ petitions are
maintainable under Article 226 of the Constitution of India. It is not the
question regarding the maintainability of the writ petition, but the
entertainability of the writ petition is to be looked into. The Courts are
bound to consider, whether there is a need to entertain a writ petition and if
so, what would be the grounds available for the purpose of entertaining the
writ petition.
7. The learned Additional Advocate General appearing on behalf of
the petitioner / TANGEDCO mainly contended that the complaint filed by
the third respondent before the Competition Commission of India itself is
not maintainable. Section 23 of the Electricity Act 2003 provides “Directions
to licensees”. Accordingly, If the Appropriate Commission (TNERC) is of
the opinion that it is necessary or expedient so to do for maintaining the
efficient supply, securing the equitable distribution of electricity and
promoting competition, it may, by order, provide for regulating supply,
distribution, consumption or use thereof.
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
8. Therefore, the Tamil Nadu Electricity Regulatory Commission is
empowered to adjudicate all subjects relatable to efficient supply, securing
the equitable distribution of electricity and promoting competition. When the
Electricity Act is a Special Act as far as the TANGEDCO is concerned, the
provisions of the Competition Act is inapplicable and the Electricity Act will
prevail over the Competition Act. No doubt, in the absence of any such
Regulatory Commission, the respondents would have justified in
entertaining a complaint under the Competition Act. When there is an
effective redressal mechanism provided by constituting Tamil Nadu
Electricity Regulatory Commission, there is no reason whatsoever to
entertain a complaint under the Competition Act and thus, the impugned
notice issued by the first respondent is beyond the scope of jurisdiction and
further, the Competition Act itself is inapplicable with reference to the
nature of complaint filed by the third respondent and in view of Section 23
of the Electricity Act, 2003.
9. The learned Additional Advocate General relied on Section 2 (64)
of the Electricity Act, which defines “State Commission” means the State
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
Electricity Regulatory Commission constituted under sub-section (1) of
Section 82 and includes a Joint Commission constituted under sub-section
(1) of Section 83. When Section 23 deals with the powers of the Regulatory
Commission, to regulate the supply, distribution consumption or use of
electricity thereof, then the powers of the Competition Commission of India
stands ousted and thus, the impugned registration of a case and issuance of
notice are improper and without jurisdiction.
10. The learned Additional Advocate General contended that a holistic
approach is required with reference to the provisions of the Electricity Act
and thus, the writ petition is liable to be allowed.
11. In support of the contentions, the learned Additional Advocate
General relied on the judgment of the Hon'ble Supreme Court of India in the
case of Competition Commission of India Vs. Bharti Airtel Limited and
others, reported in (2019) 2 SCC 521. The learned Additional Advocate
General relied on certain paragraphs, which reads as under:
“83. The aforesaid provisions would indicate that the
Act deals with three kinds of practices which are treated as
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
anti-competitive and are prohibited. These are:
83.1. Where agreements are entered into by certain
persons with a view to cause an appreciable adverse effect on
competition;
83.2. Where any enterprise or group of enterprises,
which enjoys dominant position, abuses the said dominant
position; and
83.3. Regulating the combination of enterprises by
means of mergers or amalgamations to ensure that such
mergers or amalgamations do not become anti-competitive or
abuse the dominant position which they can attain.
85. It is for the aforesaid reason that CCI is entrusted
with duties, powers and functions to deal with three kinds of
anti-competitive practices mentioned above. The purpose is to
eliminate such practices which are having adverse effect on
the competition, to promote and sustain competition and to
protect the interest of the consumers and ensure freedom of
trade, carried on by the other participants, in India. For the
purpose of conducting such an inquiry, CCI is empowered to
call any person for rendering assistance and/or produce the
records/material for arriving at even the prima facie opinion.
The regulations also empower CCI to hold conferences with
the persons/parties concerned, including their
advocates/authorised persons.
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
98. Thus, with the advent of globalisation/liberalisation
leading to free market economy, regulators in respect of each
sector have assumed great significance and importance. It
becomes their bounden duty to ensure that such a regulator
fulfils the objectives enshrined in the Act under which a
particular regulator is created. Insofar as the telecom sector
is concerned, the TRAI Act itself mentions the objective which
it seeks to achieve. It not only exercises control/supervision
over the telecom service providers/licensees, TRAI is also
supposed to provide guidance to the telecom/mobile market.
“Introduction” to the TRAI Act itself mentions that due to
tremendous growth in the services it was considered essential
to regulate the telecommunication services by a regulatory
body which should be fully empowered to control the services,
in the best interest of the country as well as the service
providers. Likewise, the Statement of Objects and Reasons of
this Act, inter alia, stipulates as under:
“1. In the context of the National Telecom Policy, 1994, which
amongst other things, stresses on achieving the universal
service, bringing the quality of telecom services to world
standards, provisions of wide range of services to meet the
customers' demand at reasonable price, and participation of
the companies registered in India in the area of basic as well
as value-added telecom services as also making arrangements
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
for protection and promotion of consumer interest and
ensuring fair competition, there is a felt need to separate
regulatory functions from service providing functions which
will be in keeping with the general trend in the world. In the
multi-operator situation arising out of opening of basic as
well as value-added services in which private operator will be
competing with Government operators, there is a pressing
need for an independent telecom regulatory body for
regulation of telecom services for orderly and healthy growth
of telecommunication infrastructure apart from protection of
consumer interest.
***
4. The powers and functions of the Authority, inter alia, are—
(i) ensuring technical compatibility and effective inter-
relationship between different service providers;
(ii) regulation of arrangement amongst service providers of
sharing their revenue derived from providing
telecommunication services;
(iii) ensuring compliance of licence conditions by all service
providers;
(iv) protection of the interest of the consumers of
telecommunication service;
(v) settlement of disputes between service providers;
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
(vi) fixation of rates for providing telecommunication service
within India and outside India; and
(vii) ensuring effective compliance of universal service
obligations.”
99. TRAI is, thus, constituted for orderly and healthy
growth of telecommunication infrastructure apart from
protection of consumer interest. It is assigned the duty to
achieve the universal service which should be of world
standard quality on the one hand and also to ensure that it is
provided to the customers at a reasonable price, on the other
hand. In the process, purpose is to make arrangements for
protection and promotion of consumer interest and ensure fair
competition. It is because of this reason that the powers and
functions which are assigned to TRAI are highlighted in the
Statement of Objects and Reasons. Specific functions which
are assigned to TRAI, amongst other, including ensuring
technical compatibility and effective inter-relationship
between different service providers; ensuring compliance of
licence conditions by all service providers; and settlement of
disputes between service providers.
103. We are of the opinion that as TRAI is constituted as
an expert regulatory body which specifically governs the
telecom sector, the aforesaid aspects of the disputes are to be
decided by TRAI in the first instance. These are jurisdictional
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
aspects. Unless TRAI finds fault with the IDOs on the
aforesaid aspects, the matter cannot be taken further even if
we proceed on the assumption that CCI has the jurisdiction to
deal with the complaints/information filed before it. It needs
to be reiterated that RJIL has approached the DoT in relation
to its alleged grievance of augmentation of POIs which in turn
had informed RJIL vide letter dated 6-9-2016 that the matter
related to interconnectivity between service providers is
within the purview of TRAI. RJIL thereafter approached TRAI;
TRAI intervened and issued show-cause notice dated 27-9-
2016; and post issuance of show-cause notice and directions,
TRAI issued recommendations dated 21-10-2016 on the issue
of interconnection and provisioning of POIs to RJIL. The
sectoral authorities are, therefore, seized of the matter. TRAI,
being a specialised sectoral regulator and also armed with
sufficient power to ensure fair, non-discriminatory and
competitive market in the telecom sector, is better suited to
decide the aforesaid issues. After all, RJIL's grievance is that
interconnectivity is not provided by the IDOs in terms of the
licences granted to them. The TRAI Act and Regulations
framed thereunder make detailed provisions dealing with
intense obligations of the service providers for providing
POIs. These provisions also deal as to when, how and in what
manner POIs are to be provisioned. They also stipulate the
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
charges to be realised for POIs that are to be provided to
another service provider. Even the consequences for breach of
such obligations are mentioned.
104. We, therefore, are of the opinion that the High
Court is right in concluding that till the jurisdictional issues
are straightened and answered by TRAI which would bring on
record findings on the aforesaid aspects, CCI is ill-equipped
to proceed in the matter. Having regard to the aforesaid
nature of jurisdiction conferred upon an expert regulator
pertaining to this specific sector, the High Court is right in
concluding that the concepts of “subscriber”, “test period”,
“reasonable demand”, “test phase and commercial phase
rights and obligations”, “reciprocal obligations of service
providers” or “breaches of any contract and/or practice”,
arising out of the TRAI Act and the policy so declared, are the
matters within the jurisdiction of the Authority/TDSAT under the
TRAI Act only. Only when the jurisdictional facts in the
present matter as mentioned in this judgment particularly in
paras 72 and 102 above are determined by TRAI against the
IDOs, the next question would arise as to whether it was a
result of any concerted agreement between the IDOs and
COAI supported the IDOs in that endeavour. It would be at
that stage CCI can go into the question as to whether violation
of the provisions of the TRAI Act amounts to “abuse of
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
dominance” or “anti-competitive agreements”. That also
follows from the reading of Sections 21 and 21-A of the
Competition Act, as argued by the respondents.
105. The issue can be examined from another angle as
well. If CCI is allowed to intervene at this juncture, it will
have to necessarily undertake an exercise of returning the
findings on the aforesaid issues/aspects which are mentioned
in para 102 above. Not only TRAI is better equipped as a
sectoral regulator to deal with these jurisdictional aspects,
there may be a possibility that the two authorities, namely,
TRAI on the one hand and CCI on the other, arrive at
conflicting views. Such a situation needs to be avoided. This
analysis also leads to the same conclusion, namely, in the first
instance it is TRAI which should decide these jurisdictional
issues, which come within the domain of the TRAI Act as they
not only arise out of the telecom licences granted to the
service providers, the service providers are governed by the
TRAI Act and are supposed to follow various regulations and
directions issued by TRAI itself.
113. The conclusion of the aforesaid discussion is to
give primacy to the respective objections (sic objectives) of the
two regulators under the two Acts. At the same time, since the
matter pertains to the telecom sector which is specifically
regulated by the TRAI Act, balance is maintained by
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
permitting TRAI in the first instance to deal with and decide
the jurisdictional aspects which can be more competently
handled by it. Once that exercise is done and there are
findings returned by TRAI which lead to the prima facie
conclusion that the IDOs have indulged in anti-competitive
practices, CCI can be activated to investigate the matter going
by the criteria laid down in the relevant provisions of the
Competition Act and take it to its logical conclusion. This
balanced approach in construing the two Acts would take care
of Section 60 of the Competition Act as well.
120. Thus, even when we do not agree with the
approach of the High Court in labelling the impugned order
as quasi-judicial order and assuming jurisdiction to entertain
the writ petitions on that basis, for our own and different
reasons, we find that the High Court was competent to deal
with and decide the issues raised in exercise of its power
under Article 226 of the Constitution. The writ petitions were,
therefore, maintainable.”
12. In the case of Gujarat Urja Vikas Nigam Limited Vs. Essar
Power Limited, reported in (2008) 4 SCC 755, the Hon'ble Supreme Court
of India held that Electricity Act being a Special statute would have
overriding effect over the 1996 Act the general statute.
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
13. In the case of Anand Parkash Agarwal Vs. Dakshin Haryana
Bijli Vitran Nigam, reported in 2017 SCC OnLine Comp AT 18, the
Competition Appellate Tribunal decided the issues relating on the judgment
of the Hon'ble Supreme Court of India in 'Bharti Airtel case' (cited supra).
14. The learned Additional Advocate General made a submission that
the judgment of the Competition Appellate Tribunal has got persuasive value
as the judgment of the Hon'ble Supreme Court has been relied upon.
Relevant paragraphs are extracted hereunder:
“9. The Commission further held that, the case
essentially related to the functions discharged by the
Electricity Distribution Company and the State Electricity
Regulatory Commission in respect of fixation of FSA and no
competition issue was discernible from the facts presented in
the information. The Commission was of the view that, FSA
was computed and levied as per the Regulations framed by
HERC and any issue regarding violation of the Regulations
was, therefore, to be dealt with by HERC and anyone
aggrieved by the decision of HERC could go in appeal to the
Appellate Authority under the Electricity Act. The Commission
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
accordingly closed the matter in terms of Section 26(2) of the
Act, vide the impugned Order dated 10/2/2016.
14..............
(v) That even if it were assumed that, both the
Electricity Act and the Competition Act were special laws, then
the principle of leges posteriores priores contrarias
abrogant will be applicable as both the Acts, i.e. Electricity
Act and Competition Act, were passed by the Union
Parliament under Article 246 List III of the Schedule 7 of the
Constitution. As the Electricity Act was later in date,
therefore, it would prevail over the Competition Act.
15. We have considered the submissions made by the
learned counsels appearing for the parties and perused the
Electricity Act, the Competition Act, the Regulations made in
exercise of powers vested under the aforesaid Acts, and the
relevant judicial pronouncements. It is an admitted position
that DHBVN enjoyed dominant position in the market for
distribution of electricity in its licensed area. The following
issues arise for determination:
1. Whether the impugned order suffers from the fatal
flaw of contravention of principles of natural justice as the
Commission did not give an opportunity of hearing to the
Appellant while passing the impugned order, which was
prejudicial to the appellant, under Section 26(2) of the Act.
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
2. Whether the Commission had the jurisdiction in the
matter of alleged abuse of dominance arising from
computation and levy of FSA which, as admitted by the
Appellant in information filed with the Commission, was
approved by the HERC i.e. the State Electricity Regulatory
Commission.
3. Whether any competition law issue of unfair and
discriminatory price in contravention of Section 4 of the Act,
while computing or charging FSA, has been made out.”
15. Relying on the above judgments, the learned Additional Advocate
General appearing on behalf of the petitioner is of an opinion that the ratio
laid down by the Hon'ble Supreme Court in Bharti Airtel case (cited supra)
is to be applied in respect of the jurisdiction of the Competition Commission
of India for entertaining a complaint from the third respondent and issued
the impugned notice. When the Special Act provides a redressal mechanism,
which is effective and efficient, parallel proceedings under the general law is
barred and thus, the impugned notice is untenable.
16. The learned Additional Advocate General, referred the category of
cases, which can be entertained by the Competition Commission of India
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
with reference to the provisions of the Competition Act, which was
elaborately considered by the Hon'ble Supreme Court of India. The three
kind of practices, which are treated as anti-competitive are prohibited, are
enumerated in Paragraph 83 of the judgment in Bharti Airtel case (cited
supra) and the case of the petitioner / TANGEDCO is not falling under any
one of the three categories mentioned in the said judgment with reference to
the provisions of the Competition Act and therefore, the complaint filed by
the third respondent is untenable. The TANGEDCO is owned by the
Government of Tamil Nadu and Electricity Supply has been provided
without any discrimination to the consumers. If at all any discrepancy arises
in this regard, the Tamil Nadu Electricity Regulatory Commission is
competent to adjudicate the issues under the Electricity Act, which is a
Special enactment and the Competition Act, which is a general law would be
inapplicable.
17. The learned Additional Solicitor General of India appearing on
behalf of the respondents 1 and 2 objected the contentions raised on behalf
of the petitioner in entirety. The jurisdiction and applicability of the Act has
been well enumerated by the Hon'ble Supreme Court of India in Bharti
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
Airtel case (cited supra) itself. The Hon'ble Supreme Court of India has
elaborately discussed the circumstances, under which, complaints are
entertainable under the Competition Act and where it is not entertainable.
While so, the prima facie case made out against the writ petitioner revealed
that it is evident prima facie case was made out regarding abusal of its
dominant position by imposing discriminatory conditions in the sale of
electricity in the relevant market within the meaning of Section 4 (2) (a) (i)
of the Competition Act, 2002. Thus, the Competition Commission of India
formed an opinion that it is a fit case for Director General investigation in
the proceedings itself. It is categorically stated that the notice as well as the
contentions shall not tantamount to the final expression of opinion on the
merits of the case and the Director General shall conduct the investigation
without being swayed in any manner whatsoever by the observations made
in the said order. This being the independent investigation to be conducted
by the Director General based on the allegations raised by the third
respondent and materials available on record, there is no reason to entertain
the writ petition at the stage of notice, which is not only premature, but
unsustainable.
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
18. The learned Additional Solicitor General of India with reference to
Section 23 of the Electricity Act, contended that the Electricity Regulatory
Commission is not an investigating body. The complaint filed by the third
respondent is entertained with reference to Section 4 of the Competition Act
and entire reading of the Electricity Act would reveal that there is no power
conferred on the Regulatory Commission to conduct any investigation of this
nature, more specifically, with reference to abusal of dominant position by
the writ petitioner TANGEDCO. Section 23 of the Electricity Act confers
power to the Regulatory Commission to frame policies in the areas, where
there is no policy exists. However, the power of investigation or penalty
clauses with reference to the allegation of abusal of dominant position is not
traceable under any of the provisions of the Electricity Act and therefore,
there is no overlapping of provisions in respect of the Electricity Act and
Competition Act and the Competition Act covers certain specialized area to
deal with certain nature of complaint and to conduct investigation for
initiation of further action. When power of investigation of initiation of
action and imposition of penalty are not contemplated under the Electricity
Act, the contention raised on behalf of the petitioner that the Electricity Act
prevail over the Competition Act does not arise with reference to the context
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
in the present case.
19. No doubt, the Electricity Act will prevail over the Competition Act
in respect of the subjects dealt with under the provisions of the Electricity
Act. However, the Competition Act provides Power of investigation by the
Director General. In the event of certain circumstances as contemplated
under Section 4 of the Competition Act, which is not comparable with
reference to the powers conferred on the Tamil Nadu Electricity Regulatory
Commission either under Section 23 or under any other provisions of the
Electricity Act.
20. The learned Additional Solicitor General of India drew the
attention of this Court with reference to Section 4 of the Competition Act,
which contemplates abuse of dominant position. In the present case, the
third respondent submitted a complaint for abusal of dominant position by
the TANGEDCO / writ petitioner and the Competition Commission of India
found that there is a prima facie case for the purpose of conduct of
investigation and accordingly, entertained the complaint and issued notice.
Instead of defending the case, the writ petitioner has chosen to file the writ
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
petition, challenging the very notice issued and therefore, the writ petition
itself is not maintainable and liable to be rejected.
21. It is further contended that with reference to the abusal of
dominant position, as referred by the third respondent by way of a
complaint, there is no monitoring provision or investigating mechanism
under the Electricity Act. Thus, Section 4 of the Competition Act is a stand
alone provision, which is specific and in the event of any such complaint of
abusal of dominant position, Competition Commission of India is
empowered to entertain the complaint and investigate the matter through its
Director General for the purpose of proceedings under the provisions of the
Competition Act. Section 41 of the Act provides “Director General to
investigate contravention”. In the present case, the Competition Commission
of India ordered for an investigation by the Director General and thus, the
petitioner is expected to co-operate for such investigation and to defend their
case in the manner prescribed under the provisions of the Act. Thus, the writ
petition is to be rejected.
22. The learned Additional Solicitor General of India also relied on the
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
judgment of the Hon'ble Supreme Court of India in the case of Competition
Commission of India Vs. Bharti Airtel Limited and others, reported in
(2019) 2 SCC 521. Paragraph 83 would provide three kind of practices,
which are treated as anti-competitive and the said paragraph is relied upon.
23. The learned Additional Solicitor General of India drew the
attention of this Court from Paragraphs 83 to 102, which deals with various
circumstances and the findings with reference to the kinds of practices,
which are treated as anti-competitive and are prohibited under the provisions
of the Act. The provisions of the Act are also elaborately considered by the
Hon'ble Supreme Court of India.
24. The learned Additional Solicitor General of India referred
Paragraph 103 of the judgment, wherein the Hon'ble Supreme Court made
an observation that “TRAI, being a specialised sectoral regulator and also
armed with sufficient power to ensure fair, non-discriminatory and
competitive market in the telecom sector, is better suited to decide the
aforesaid issues. After all, RJIL's grievance is that interconnectivity is not
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
provided by the IDOs in terms of the licences granted to them. The TRAI
Act and Regulations framed thereunder make detailed provisions dealing
with intense obligations of the service providers for providing POIs. These
provisions also deal as to when, how and in what manner POIs are to be
provisioned. They also stipulate the charges to be realised for POIs that are
to be provided to another service provider. Even the consequences for breach
of such obligations are mentioned. We, therefore, are of the opinion that the
High Court is right in concluding that till the jurisdictional issues are
straightened and answered by TRAI which would bring on record findings
on the aforesaid aspects, CCI is ill-equipped to proceed in the matter. Having
regard to the aforesaid nature of jurisdiction conferred upon an expert
regulator pertaining to this specific sector, the High Court is right in
concluding that the concepts of “subscriber”, “test period”, “reasonable
demand”, “test phase and commercial phase rights and obligations”,
“reciprocal obligations of service providers” or “breaches of any contract
and/or practice”, arising out of the TRAI Act and the policy so declared, are
the matters within the jurisdiction of the Authority/TDSAT under the TRAI
Act only. Only when the jurisdictional facts in the present matter as
mentioned in this judgment particularly in paras 72 and 102 above are
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
determined by TRAI against the IDOs, the next question would arise as to
whether it was a result of any concerted agreement between the IDOs and
COAI supported the IDOs in that endeavour. It would be at that stage CCI
can go into the question as to whether violation of the provisions of the
TRAI Act amounts to “abuse of dominance” or “anti-competitive
agreements”. That also follows from the reading of Sections 21 and 21-A of
the Competition Act, as argued by the respondents.”
25. The learned Additional Advocate General relied on the judgment
of the High Court of Delhi, wherein the ratio laid down in Bharti Airtel
case (cited supra) has been relied upon.
26. In the case of Monsanto Holdings Pvt. Ltd., and others, Vs.
Competition Commission of India and others, reported in (2020) SCC
OnLine Del 598 and in the case of Whatsapp LLC Vs. Competition
Commission of India, the Delhi High Court delivered a judgment on
22.04.2021 in W.P.(C) 4378/2021 & CM 13336/2021, in which,
paragraphs 24, 27 and 28 are relied upon and the relevant paragraphs are
extracted hereunder:
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
“24. The reliance of the petitioner on the judgment of
Bharti Airtel Ltd. (supra) in this regard is ill-founded. In the
said case, the Supreme Court was considering the scope and
ambit of two specialized regulators, that is the respondent no.1
herein and the Telecom Regulatory Authority of India (TRAI),
to deal with a complaint regarding denial of Points of
Interconnection to one of the telecom operators. The Supreme
Court explained the jurisdiction to the two Regulators as
under:-
"85. It is for the aforesaid reason that
CCI is entrusted with duties, powers and functions
to deal with three kinds of anticompetitive
practices mentioned above. The purpose is to
eliminate such practices which are having adverse
effect on the competition, to promote and sustain
competition and to protect the interest of the
consumers and ensure freedom of trade, carried
on by the other participants, in India. For the
purpose of conducting such an inquiry, CCI is
empowered to call any person for rendering
assistance and/or produce the records/material
for arriving at even the prima facie opinion. The
regulations also empower CCI to hold conferences
with the persons/parties concerned, including
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
their advocates/authorised persons.
xxxxxx
99. TRAI is, thus, constituted for orderly and
healthy growth of telecommunication
infrastructure apart from protection of consumer
interest. It is assigned the duty to achieve the
universal service which should be of world
standard quality on the one hand and also to
ensure that it is provided to the customers at a
reasonable price, on the other hand. In the
process, purpose is to make arrangements for
protection and promotion of consumer interest
and ensure fair competition. It is because of this
reason that the powers and functions which are
assigned to TRAI are highlighted in the Statement
of Objects and Reasons. Specific functions which
are assigned to TRAI, amongst other, including
ensuring technical compatibility and effective
inter-relationship between different service
providers; ensuring compliance of licence
conditions by all service providers; and settlement
of disputes between service providers."
27. A reading of the above judgment would clearly show that,
in spite of having come to the conclusion that TRAI is the
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
expert regulator constituted for the purposes of ensuring an
orderly and healthy growth of telecommunication
infrastructure services, the Supreme Court held that TRAI
would not be the sole repository of the jurisdiction to deal even
with the Competition Act and violations thereunder. However,
the Supreme Court found that the jurisdictional facts and
obligations under the TRAI Act, 1997 and the Regulations
framed thereunder were first to be determined by the TRAI and
therefore, held that the respondent no. 1 had to await the
outcome of the proceedings before TRAI before proceeding
with the investigation ordered by it under Section 26(1) of the
Act.
28. In the present case, the issue as to whether the 2016
Update/2021 Update announced by WhatsApp in any manner
infringes upon the Right of Privacy of the users guaranteed
under Article 21 of the Constitution of India is pending
adjudication before the Supreme Court and this Court. The
question regarding the 2016 Update/2021 Update not giving
an option to opt-out is also an issue before the Supreme Court
and this Court. However, the same cannot necessarily mean
that during the pendency of those petitions, the respondent
no.1 is completely denuded of the jurisdiction vested in it
under the Competition Act, 2002 or that it must necessarily
await the outcome of such proceedings. Therefore, it is not a
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
question of lack of jurisdiction of the respondent no. 1, but
rather one of prudence and discretion.”
27. Relying on the above judgments, the learned Additional Solicitor
General of India contended that there is ample power to entertain complaint
of this nature and issue notice by following the provisions of the
Competition Act and there is no infirmity and the petitioner has to defend
their case by filing their objections or otherwise. Thus, the writ petition is to
be rejected.
28. The learned counsel for the third respondent also opposed the
contentions of the petitioner by stating that there is absolutely no ouster of
jurisdiction as far as the Competition Act is concerned. Section 21-A of the
Competition Act provides “Reference by Commission”. Sub-Section (1)
reads as under:
“(1) Where in the course of a proceeding before the
Commission an issue is raised by any party that any decision
which, the Commission has taken during such proceeding or
proposes to take, is or would be contrary to any provision of
this Act, whose implementation is entrusted to a statutory
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
authority, then the commission may make a reference in
respect of such issue to the Statutory authority.”
29. It is contended that the third respondent has not preferred any
complaint before the Tamil Nadu Regulatory Commission. Section 21-A
empowers the Commission to make a reference where in the course of a
proceeding before the Commission an issue is raised by any party that any
decision which, the Commission has taken during such proceeding or
proposes to take, is or would be contrary to any provision of this 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.
30. Relying on the said provision, the learned counsel for the third
respondent reiterated that after investigation by the Director General and
during the course of hearing by the Competition Commission of India, if the
writ petitioner is able to establish that the subject must be adjudicated before
the Tamil Nadu Electricity Regulatory Commission, then the Commission
itself has got powers to refer the issues to the statutory authority namely
Tamil Nadu Electricity Regulatory Commission (TNERC) for adjudication
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
under the provisions of the Electricity Act. Therefore, mere initiation cannot
be questioned on the ground that the Competition Commission of India has
no jurisdiction. When the third respondent has raised a specific allegation of
abusal of dominant position, then as per Section 4, the Competition
Commission is empowered to initiate action and thus, the writ petition is
devoid of merits.
31. Considering the arguments as advanced by the learned
Additional Advocate General for the writ petitioner and the Additional
Solicitor General of India and the learned counsel for the respondents, this
Court has to consider the nature of complaint and the scope of the
entertainability of such complaint under the provisions of the Competition
Act by the Competition Commission of India.
32. Let us now consider Section 4 of the Competition Act, which
contemplates 'Abuse of dominant position'. It prohibits of abuse of dominant
position. Sub-Section (1) enumerates that “No enterprise or group shall
abuse its dominant position”. Sub-Section (2) states that “There shall be an
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
abuse of dominant position [under sub-section (1), if an enterprise or a
group],” (a) directly of indirectly, impose unfair or discriminatory.
(i) Condition in purchase or sale of goods or services; or (ii) price in
purchase or sale (including predatory price) of goods or service.
33. An enterprise stipulated in Section 4 is defined in Section 2(h)
as follows:
“2(h) “enterprise” means a person or a department
of the Government, who or which is, or has been, engaged in
any activity, relating to the production, storage, supply,
distribution, acquisition or control of articles or goods, or
the provision of services, of any kind, or in investment, or in
the business of acquiring, holding, underwriting or dealing
with shares, debentures or other securities of any other body
corporate, either directly or through one or more of its units
or divisions or subsidiaries, whether such unit or division or
subsidiary is located at the same place where the enterprise
is located or at a different place or at different places, but
does not include any activity of the Government relatable to
the sovereign functions of the Government including all
activities carried on by the departments of the Central
Government dealing with atomic energy, currency, defence
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
and space.”
Thus, the TANGEDCO / writ petitioner is an enterprise within the meaning
of Competition Act.
34. Section 21-A deals with Reference by Commission. Therefore,
the Competition Commission of India, while conducting investigation or
adjudicating the issues, forms an opinion that the actions initiated are
contrary to any of the provisions of the Competition Act, whose
implementation is entrusted to a statutory authority, then a reference in
respect of such issue shall be made to the statutory authority concerned.
Thus, the writ petitioner has got ample opportunity to defend their case and
if they could able to establish the Competition Commission of India has no
jurisdiction to deal with the particular subjects on merits, which all are
amenable to the provisions of the Electricity Act for effective adjudication,
then the Competition Commission of India is well within its power to make
such issue to the statutory authority namely Tamil Nadu Electricity
Regulatory Commission in the present case.
35. Chapter V Section 41 provides 'Director General to investigate
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
contraventions'. Chapter VI deals with 'Penalties'. This being the provisions
of the Competition Act, let us now consider the nature of the complaint
given by the 3rd respondent to the Competition Commission of India, which
has been elaborately stated in Case No.38 of 2013, wherein, the 3 rd
respondent has stated that the load shedding power in entire Tamil Nadu,
barring Chennai, extended to about 14 to 18 hours a day. The informant
highlighted an order dated 10.01.2011 of the Appellate Tribunal for
Electricity directing the State Electricity Commission to initiate proceedings
regarding short term, medium term and long term for meeting the
requirement of power and the Opposite Party was directed to submit a
comprehensive proposal in this regard before the State Commission. The
High Court of Madras also, vide order dated 30.06.2011, taking note of the
submissions regarding inequitable load shedding and enforcement of
Restriction and Control Measures, directed the Regulatory Commission to
take up the matter and pass appropriate orders.
36. The informant contended that the discriminatory treatment by
the opposite party had resulted in unfavorable competitive conditions in the
market. The Industries situated in rest of Tamil Nadu including foundry,
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
automobile component manufacturers, textile, Information Technology (IT),
commercial establishments etc., compete with similar industries functioning
in Chennai. While the industries in Chennai region get power supply for 22
hours a day at Rs. 5.50 per unit rate charged by the Respondent, the
Industries outside Chennai do not have such advantage and spend Rs. 15/-
on per unit of electricity because they are compelled to using diesel gensets.
This has resulted in distortion in level playing field for industrial units
situated in others parts of Tamil Nadu (except Chennai) because of escalated
operating cost as a result of high per unit of electricity consumed by these
industrial units.
37. As per Informant, there was no difference in respect of levy of
tariff and charges in the electricity consumed in Chennai from other Regions
of Competition Commission of India Tamil Nadu. Thus entire Tamil Nadu
has to be taken as single geographic market. The discrimination met out to
areas other than Chennai amounted to abuse. On the basis of the above
stated facts, the informant argued abuse of dominant position by OP under
section 4 of the Act by imposition of discriminatory conditions in the sale of
electricity (Section 4(2) (a) (i)).
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
38. The relevant market in this case has to be 'generation and
supply/sale/distribution of electricity in the State of Tamil Nadu'. As per the
information available in public domain, Tamil Nadu Electricity Board came
into existence in the year 1957 and remained the sole energy provider and
distributor in the state till 2008. Post 2008, as per the mandatory
requirements of the Electricity Act 2003, Government of Tamil Nadu re-
organised TNEB by the establishment of a holding company by the name of
TNEB Ltd and two subsidiary companies, namely Tamil Nadu Transmission
Corporation Ltd (TANTRANSCO) and Tamil Nadu Generation and
Distribution Corporation Ltd (TANGEDCO). TANTRANSCO is engaged in
electricity transmission, TANGEDCO (opposite party in this case) is
engaged in both electricity generation and distribution and is the successor
to the erstwhile Tamil Nadu Electricity Board. TANGEDCO operates four
large thermal power stations - Ennore Thermal Power Station (ETPS),
Mettur Thermal Power Station (MTPS), North Chennai Thermal Power
Station (NCTPS), Tuticorin Thermal Power Station (TTPS). Since both
these activities, generation and distribution, are solely governed by the
opposite party in Tamil Nadu, the opposite party seems to be dominant in
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
this relevant market. Further, the existence of holding-subsidiary relation
between TNEB Ltd, TANTRANSCO and Opposite Party makes the
electricity sector vertically integrated in the state of Tamil Nadu. Opposite
Party is the only distribution licensee, having considerable market share in
the electricity distribution in the state.
39. Dealing with the question of abuse, it is important to note that
electricity is the backbone of industrial units. For a free flow of
manufacturing processes, it is important to have a non-discriminatory and an
equitable availability or electricity. The difference in the load shedding in
Chennai and other parts of Tamil Nadu was enormous, as shown in the
information. Whereas, Chennai was facing 2-3 hours of load shedding, other
parts of Tamil Nadu were facing 14-16 hours of load shedding, which
undoubtedly would adversely affect the functioning of industries in those
areas. The reliance on the gensets (diesel run generators) by industrial units
located in other parts of Tamil Nadu escalates their cost of production,
making their products, uncompetitive with similar products manufactured in
Chennai. It was also stated in the information that many industries outside
of Chennai were likely to go out of production or suffer loss of orders, owing
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
to inability to run their operations continuously or owing to increased cost of
production. There seems to be no justification to extend uninterrupted power
supply for the whole of Chennai and to all consumers merely on the ground
of maintenance of certain specific essential services and ignoring other parts
of Tamil Nadu. As stated in the information, the impact of such
discrimination is not restricted to revenue, efficiency and productivity but
manpower costs, power and electricity charges, maintenance charges, back
up costs have also increased manifold in these areas. Further, performance
and delivery has become a stress point for many industries. Many industries
are losing valued customers and also orders. The
most critical issue, as alleged in the information, is that repayment of debt
and working capital loans is becoming a challenge due to inefficient
functioning of Small and Medium Industries.
40. In view of the forgoing discussion, it is evident prima facie OP
was abusing its dominant position by imposing discriminatory conditions in
the sale of electricity in the relevant market within the meaning of section
4(2)(a)(i) of the Act. This is a fit case for DG investigation. The opinion
expressed herein above is based on facts available to the Commission at this
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
stage. The Director General has to investigate the matter for violation of
any/all provisions of the Competition Act, and not only in respect of the
provisions above stated.
41. The Secretary is, therefore, directed to send a copy of this
direction to the office of the DG. The DG shall investigate the above matter
as stated above. In case the DG finds any company in violation of the
provision of the Act, it shall also investigate the role of the persons who at
the time of such contravention were incharge of and responsible for the
conduct of the business of the company involved so as to fix responsibility of
such persons under section 48 of the Act. DG shall give opportunity of
hearing to such persons in terms of section 48 of the Act. The report of DG
be submitted within 60 days from receipt of the order. Nothing stated in this
order shall tantamount to a final expression of opinion on merit of the case
and the DG shall conduct the investigation without being swayed in any
manner whatsoever by the observations made herein.
42. The above allegations set out in the complaint submitted by the
3rd respondent would reveal that there are certain allegations, which require
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
an investigation. The question to be considered is whether the Tamil Nadu
Electricity Regulatory Commission is vested with any power to conduct
investigation regarding the abuse of dominant position with reference to the
allegations raised by the 3rd respondent before the Competition Commission
of India.
43. No doubt, Section 23 of the Electricity Act provides power to
the Regulatory Commission to pass order for regulating supply, distribution,
consumption or use thereof. Section 23 of the Electricity Act is unambiguous
that for maintaining the efficient supply, securing the equitable distribution
of electricity and promoting competition, it may, by order, provide for
regulating supply, distribution, consumption or use thereof.
44. Therefore, the Tamil Nadu Electricity Regulatory Commission
is vested with the power to pass necessary orders, framing policy or issue
guidelines for maintenance of efficient supply, securing the equitable
distribution of electricity and promoting competition. Thus, a policy shall be
framed by the Electricity Regulatory Commission, necessary orders may be
passed for regulating supply, distribution consumption or use thereof by the
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
Electricity Regulatory Commission. However, there is no express provision
or intent with reference to the ingredients of Section 23 of the Electricity Act
that the Regulatory Commission is empowered to conduct investigation
relating to the abusal of dominant position or to impose penalty or otherwise
under the Electricity Act.
45. It is not in dispute that Electricity Act will prevail over the
Competition Act as far as the writ petitioner / TANGEDCO is concerned.
However, if there is no overlapping of provisions and if there is no
mechanism for adjudication of certain disputes, then, the general law would
be applicable to the aggrieved persons, who are entitled to approach the
authority or Forum under the general law.
46. It is needless to state that in the absence of any investigating
power or to impose penalty with reference to the allegations of abusal of
dominant position by the Electricity Board in the present case, then the
Competition Commission of India is empowered to take up the issues to
conduct an investigation and adjudicate the issues. While doing so, if the
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
Competition Commission of India forms an opinion that the particular issue
is falling under the ambit of the Electricity Act or within the provisions of
Section 23 of the Electricity Act, even at that point of time, the Commission
is empowered to make a reference to the statutory authority i.e., Tamil Nadu
Electricity Regulatory Commission for the purpose of conducting further
adjudication or otherwise.
47. Under these circumstances, whether a prima facie case is made
out by the 3rd respondent for initiation of proceedings under the Competition
Act or not is the question is to be considered. Secondly, whether there is any
scope for the Tamil Nadu Electricity Regulatory Commission to conduct an
investigation or impose penalty on the TANGEDCO under the provisions of
the Electricity Act or not.
48. In this regard Section 4 of the Competition Act is very clear and
it prohibits abuse of dominant position. The abuse of dominant position has
been enumerated in clear terms by stating that if an enterprise or a group
directly or indirectly imposes unfair or discriminatory, condition in purchase
or sale of goods or services or price in purchase or sale of goods or service.
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
49. As far as the Electricity Act is concerned, there is no provision
akin to that of Section 4 specifically deals with prohibition of abuse of
dominant position. There is a specialized investigating agency, which is
constituted and Section 40 (1) of the Competition Act provides Director
General to investigate contraventions.
50. In the present case, the Competition Commission of India,
considering the allegations raised by the 3rd respondent against the writ
petitioner, formed an opinion that it is evident prima facie for the purpose of
entertaining a complaint under Section 4 of the Competition Act and ordered
for an investigation by the Director General and issued a notice to the
TANGEDCO to submit their objections.
51. The impugned notice categorically states that the Commission
after considering the available information, is of the opinion that a prima
facie case exists and has directed in its order dated 08.10.2013 that
investigation be made in the matter by the Competition Commission of
India. Thus, in order to enable the Directorate to investigate the matter, in
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
exercise of powers conferred under Section 41(2) read with Section 36(2) of
the Competition Act, the informations along with supporting documents
were sought for from the writ petitioner/TANGEDCO.
52. The TANGEDCO is bound to respond to the Competition
Commission of India by producing all required documents along with
explanations/objections, if any, for the purpose of considering the same and
take a final decision to proceed with the case or to drop the case.
53. With reference to the judgment of the Hon'ble Supreme Court,
in the case of Bharti Airtel (cited supra), it was found that the issue raised
is falling within the adjudicatory power of the TRAI. Under those
circumstances, the Hon'ble Supreme Court held that the Competition
Commission of India lacks jurisdiction. However, in paragraph 83, the
Hon'ble Supreme Court has considered three kind of practices, which all are
treated as anti-competitive and are prohibited and if any of the complaint is
falling under any one of the three kind of practices narrated in paragraph 83
of the judgment, then the Competition Commission of India is empowered to
conduct an investigation and proceed in accordance with the provisions of
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
the Competition Act.
54. In the present case, perusal of the allegations raised by the 3 rd
respondent would reveal that there is a prima facie case that the
TANGEDCO / writ petitioner enjoys dominant position in respect of
electricity in the State of Tamil Nadu. This factum is not disputed. When
the writ petitioner / TANGEDCO is in dominant position, the allegations set
out in the complaint indicates certain abuses and therefore, the said abuse of
dominant position warrants any further action or not, is to be investigated
and all appropriate proceedings are to be allowed for the purpose of forming
a final opinion.
55. This Court is not inclined to step-in to the nature of the
allegations or its veracity or otherwise, which is yet to be investigated by the
Director General under the provisions of the Competition Act. The
allegations, which all are not yet investigated by the competent authority, it
would be unnecessary for the Court to appreciate such allegations or made a
finding, which would cause prejudice to either of the parties, either to
proceed with the investigation or to form an opinion for initiation of further
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
actions under the provisions of the Competition Act or to refer the matter to
the Electricity Regulatory Commission under the Electricity Act by invoking
Section 21-A of the Competition Act. This exercise is to be done by the
respondents 1 and 2 and this Court is not inclined to provide any findings on
the allegations or with reference to the investigations to be conducted by the
competent authority.
56. Therefore, once an anti-competitive practices are brought to the
notice of the Competition Commission of India by way of complaint and
such allegations are falling under Section 4 of the Competition Act, then the
Competition Commission of India is empowered to conduct investigation
and form a final opinion for the purpose of initiation of actions. In the
present case, the Electricity Act does not provide any power to the Tamil
Nadu Electricity Regulatory Commission to conduct investigation, more
specifically, with reference to the allegations of abuse of dominant position,
which is a specific provision under Section 4 of the Competition Act. When
the Electricity Regulatory Commission is not vested with the power of
investigation under the Electricity Act, but it confers with the powers to
frame policy or to pass orders for maintaining the efficient supply, securing
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
the equitable distribution of electricity and promoting competition, then the
Competition Commission of India is empowered to deal with the complaint
with reference to Section 4 and initiate further proceedings by following the
procedures as contemplated under the Competition Act.
57. In the present case, the notice issued to the writ petitioners,
calling upon to furnish the informations and documents to conduct
investigation is under challenge. Undoubtedly, it is in premature stage,
wherein, the authority competent yet to form final opinion with reference to
the allegations of abuse of dominant position as contemplated under Section
4 of the Competition Act. When the Competition Act provides jurisdiction to
the authorities to entertain complaint, more specifically, when there is no
such investigating power contemplated under the Special Act, then there is
no impediment for the Competition Commission of India for entertaining a
complaint in the present case submitted by the 3rd respondent and thus, there
is no infirmity or perversity. Thus, the case on hand is not a fit case for the
purpose of quashing the notice. Contrarily, the writ petitioner is at liberty to
avail the opportunities provided under the provisions of the Act by the
respondents 1 and 2 and defend their case.
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
58. This being the factum established, the writ petition is not only
premature, but not entertainable as the challenge made is a notice issued,
providing an opportunity to the writ petitioner to defend their case under the
provisions of the Competition Act, 2002. The writ petitioner is at liberty to
submit their explanations or objections along with the informations and
documents to the respondents 1 and 2 within a period of four weeks from
the date of receipt of a copy of this order. On receipt of such materials,
informations, explanations from the writ petitioner, the respondents 1 and 2
are directed to proceed with the investigations, by affording opportunity to
the writ petitioner / TANGEDCO and conclude the investigation and all
further proceedings within a period of four months from the date of receipt
of a copy of this order. The writ petitioner is directed to co-operate for the
investigation for early disposal of the case. In the event of any non-
cooperation on the part of the writ petitioner, the said non-cooperation is
directed to be recorded in the proceedings itself and in such an event, the
outer time limit fixed by this Court cannot be taken as an advantage by the
writ petitioner for seeking any relief on the said ground.
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
59. With the above directions, the writ petition stands dismissed.
No costs. Consequently, connected miscellaneous petitions are closed.
22.12.2021
Internet:Yes
Index : Yes
Speaking order:Yes
kak/jeni
To
1.Competition Commission of India,
Hindustan Times House,
(3rd, 4th & 7th Floor)
18-20, Kasturba Gandhi Marg,
New Delhi – 110 001.
2.Additional Director General,
Competition Commission of India,
'B' Wing, HUDCO Vishala,
14, Bhikaji Cama Place,
New Delhi – 110 066.
3.The President,
Mr.T.C.Thiagarajan,
Southern India Engineering Manufacturers'
Association,
8/4, Race Course, Coimbatore – 18.
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
S.M.SUBRAMANIAM, J.
kak/jeni
W.P.No.35047 of 2013
https://www.mhc.tn.gov.in/judis
W.P.No.35047 of 2013
22.12.2021
https://www.mhc.tn.gov.in/judis
