Kerala High Court
Disney Broadcasting (India) Private … vs Competition Commission Of India on 28 May, 2025
Author: D. K. Singh
Bench: D. K. Singh
WP(C) NOs. 29766, 29767
and 29768 OF 2022 1
2025:KER:36755
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE D. K. SINGH
WEDNESDAY, THE 28TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947
WP(C) NO. 29766 OF 2022
PETITIONER:
ASIANET STAR COMMUNICATIONS PRIVATE LIMITED
STAR HOUSE, URMI ESTATE 95 GANPATRAO KADAM MARG LOWER
PAREL (W), MUMBAI- 400013, REPRESENTED BY ITS AUTHORIZED
SIGNATORY K.S. BIJU
BY ADVS.
V.V.NANDAGOPAL NAMBIAR
ADV.MR.MANINDER SINGH (SR.)
ADV.MR.JAIJU BABU(SR.)
ADV.MR.SANTHOSH MATHEW(SR)
SMITHA (EZHUPUNNA)
CHITRA JOHNSON
VICTOR GEORGE V.M.
ADV.MR.PRABHAS BAJAJ
K.GOPALAKRISHNA KURUP (SR.)(G-169)
RANJEET SINGH SIDHU(D/2599/2015)
SIDHARTH CHOPRA(D/673/2005)
SWIKRITI SINGHANIA(D/2229-C/2011)
KUBER MAHAJAN(D/2760/2020)
AKSHAY AGARWAL(D/2269/2017)
SNEHA JAIN(D/3024/2010)
SAIKRISHNA RAJAGOPAL(D/1147/1995)
RESPONDENTS:
1 COMPETITION COMMISSION OF INDIA
REPRESENTED BY ITS SECRETARY, 9TH FLOOR, OFFICE BLOCK -
1, KIDWAI NAGAR (EAST) , NEW DELHI - 110023, INDIA.
2 ASIANET DIGITAL NETWORK PRIVATE LIMITED 2A,
II FLOOR, CARNIVAL TECHNOPARK, LEELA INFOPARK,
TECHNOPARK, KAZHAKKOOTTAM, KARYAVATTOM, TRIVANDRUM -695
WP(C) NOs. 29766, 29767
and 29768 OF 2022 2
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581 REPRESENTED BY ITS AUTHORIZED SIGNATORY
3 STAR INDIA PRIVATE LIMITED
STAR HOUSE, URMI ESTATE, 95, GANPATRAO KADAM MARG, LOWER
PAREL (WEST), MUMBAI -400013 REPRESENTED BY ITS
AUTHORIZED SIGNATORY
4 DISNEY BROADCASTING (INDIA) PRIVATE LIMITED
STAR HOUSE, URMI ESTATE, 95, GANPATRAO KADAM MARG, LOWER
PAREL (WEST), MUMBAI -400013, REPRESENTED BY ITS
AUTHORIZED SIGNATORY
5 THE DIRECTOR GENERAL
COMPETITION COMMISSION OF INDIA 'B' WING, HUDCO VISHALA,
14, BHIKAJI CAMA PLACE, NEW DELHI - 110 066.
BY ADVS.
MARIAM MATHAI
Santhosh Mathew
ADV.SRI.N.VENKATARAMAN, ASGI asst.by
SRI.JAISHANKAR V.NAIR, CGC
ADV.MR.RITIN RAI(SR.)
ADV.MR.AVINASH AMARNATH
ADV.MR.TARUN DONADI
ADV.MR.UDAY BALI
ADV.MR.NAMAN GOLECHHA
ADV.DAYAAR SINGLA
SAJI VARGHESE T.G
ARUN THOMAS(K/844/2007)
ANIL SEBASTIAN PULICKEL(K/000278/2018)
MATHEW NEVIN THOMAS(K/000936/2019)
KURIAN ANTONY MATHEW(K/1812/2020)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.02.2025
ALONG WITH WP(C).29767/2022, 29768/2022, THE COURT ON 28.05.2025 DELIVERED
THE FOLLOWING:
WP(C) NOs. 29766, 29767
and 29768 OF 2022 3
2025:KER:36755
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE D. K. SINGH
WEDNESDAY, THE 28TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947
WP(C) NO. 29767 OF 2022
PETITIONER:
STAR INDIA PRIVATE LIMITED,
STAR HOUSE, URMI ESTATE, 95, GANPATRAO KADAM MARG, LOWER
PAREL, MUMBAI 400 013 REPRESENTED BY ITS AUTHORIZED
SIGNATORY SHRI. BIJU K.S.
BY ADVS.
V.V.NANDAGOPAL NAMBIAR
ADV.MR.MANINDER SINGH (SR.)
ADV.MR.JAIJU BABU(SR.)
ADV.MR.SANTHOSH MATHEW(SR)
SMITHA (EZHUPUNNA)
CHITRA JOHNSON
VICTOR GEORGE V.M.
ADV.MR.PRABHAS BAJAJ
K.GOPALAKRISHNA KURUP (SR.)(G-169)
RANJEET SINGH SIDHU(D/2599/2015)
SIDHARTH CHOPRA(D/673/2005)
SWIKRITI SINGHANIA(D/2229-C/2011)
KUBER MAHAJAN(D/2760/2020)
AKSHAY AGARWAL(D/2269/2017)
SNEHA JAIN(D/3024/2010)
SAIKRISHNA RAJAGOPAL(D/1147/1995)
RESPONDENTS:
1 COMPETITION COMMISSION OF INDIA,
REPRESENTED BY ITS SECRETARY, 9TH FLOOR, OFFICE BLOCK - 1
KIDWAI NAGAR (EAST) NEW DELHI - 110023, INDIA.
WP(C) NOs. 29766, 29767
and 29768 OF 2022 4
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2 ASIANET DIGITAL NETWORK PRIVATE LIMITED,
2A, II FLOOR, CARNIVAL TECHNOPARK, LEELA INFOPARK,
TECHNOPARK, KAZHAKKOOTTAM, KARYAVATTOM, TRIVANDRUM 695 581
REPRESENTED BY ITS AUTHORIZED SIGNATORY.
3 DISNEY BROADCASTING (INDIA) PRIVATE LIMITED,
STAR HOUSE, URMI ESTATE, 95, GANPATRAO KADAM MARG, LOWER
PAREL (WEST), MUMBAI -400013 REPRESENTED BY ITS AUTHORIZED
SIGNATORY.
4 ASIANET STAR COMMUNICATIONS PRIVATE LIMITED,
STAR HOUSE, URMI ESTATE, 95, GANPATRAO KADAM MARG, LOWER
PAREL (WEST), MUMBAI -400013, REPRESENTED BY ITS AUTHORIZED
SIGNATORY.
5 THE DIRECTOR GENERAL,
COMPETITION COMMISSION OF INDIA. 'B' WING, HUDCO VISHALA,
14, BHIKAJI CAMA PLACE, NEW DELHI - 110 066.
BY ADVS.
MARIAM MATHAI
Santhosh Mathew
ADV.SRI.N.VENKATARAMAN, ASGI asst.by
SRI.JAISHANKAR V.NAIR, CGC
ADV.MR.RITIN RAI(SR.)
ADV.MR.AVINASH AMARNATH
ADV.MR.TARUN DONADI
ADV.MR.UDAY BALI
ADV.MR.NAMAN GOLECHHA
ADV.DAYAAR SINGLA
SAJI VARGHESE T.G
ARUN THOMAS(K/844/2007)
ANIL SEBASTIAN PULICKEL(K/000278/2018)
MATHEW NEVIN THOMAS(K/000936/2019)
KURIAN ANTONY MATHEW(K/1812/2020)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.02.2025
ALONG WITH WP(C).29766/2022, 29768/2022, THE COURT ON 28.05.2025 DELIVERED
THE FOLLOWING:
WP(C) NOs. 29766, 29767
and 29768 OF 2022 5
2025:KER:36755
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE D. K. SINGH
WEDNESDAY, THE 28TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947
WP(C) NO. 29768 OF 2022
PETITIONER:
DISNEY BROADCASTING (INDIA) PRIVATE LIMITED
STAR HOUSE, URMI ESTATE, 95, GANPATRAO KADAM MARG, LOWER
PAREL (WEST), MUMBAI -400013 REPRESENTED BY ITS AUTHORIZED
SIGNATORY
BY ADVS.
V.V.NANDAGOPAL NAMBIAR
ADV.MR.MANINDER SINGH (SR.)
ADV.MR.JAIJU BABU(SR.)
ADV.MR.SANTHOSH MATHEW(SR)
SMITHA (EZHUPUNNA)
CHITRA JOHNSON
VICTOR GEORGE V.M.
ADV.MR.PRABHAS BAJAJ
K.GOPALAKRISHNA KURUP (SR.)(G-169)
RANJEET SINGH SIDHU(D/2599/2015)
SIDHARTH CHOPRA(D/673/2005)
SWIKRITI SINGHANIA(D/2229-C/2011)
KUBER MAHAJAN(D/2760/2020)
AKSHAY AGARWAL(D/2269/2017)
SNEHA JAIN(D/3024/2010)
SAIKRISHNA RAJAGOPAL(D/1147/1995)
RESPONDENTS:
1 COMPETITION COMMISSION OF INDIA
REPRESENTED BY ITS SECRETARY, 9TH FLOOR, OFFICE BLOCK - 1
KIDWAI NAGAR (EAST) NEW DELHI - 110023, INDIA.
WP(C) NOs. 29766, 29767
and 29768 OF 2022 6
2025:KER:36755
2 ASIANET DIGITAL NETWORK PRIVATE LIMITED
2A, II FLOOR, CARNIVAL TECHNOPARK, LEELA INFOPARK,
TECHNOPARK, KAZHAKKOOTTAM, KARYAVATTOM, TRIVANDRUM 695 581
REPRESENTED BY ITS AUTHORIZED SIGNATORY
3 STAR INDIA PRIVATE LIMITED
STAR HOUSE, URMI ESTATE, 95, GANPATRAO KADAM MARG, LOWER
PAREL, MUMBAI 400 013 REPRESENTED BY ITS AUTHORIZED
SIGNATORY SHRI. BIJU K.S.
4 ASIANET STAR COMMUNICATIONS PRIVATE LIMITED
STAR HOUSE, URMI ESTATE, 95, GANPATRAO KADAM MARG, LOWER
PAREL (WEST), MUMBAI -400013 REPRESENTED BY ITS AUTHORIZED
SIGNATORY
5 THE DIRECTOR GENERAL
COMPETITION COMMISSION OF INDIA 'B' WING, HUDCO VISHALA, 14,
BHIKAJI CAMA PLACE, NEW DELHI 110 066.
BY ADVS.
MARIAM MATHAI
Santhosh Mathew
ADV.SRI.N.VENKATARAMAN, ASGI asst.by
SRI.JAISHANKAR V.NAIR, CGC
ADV.MR.RITIN RAI(SR.)
ADV.MR.AVINASH AMARNATH
ADV.MR.TARUN DONADI
ADV.MR.UDAY BALI
ADV.MR.NAMAN GOLECHHA
ADV.DAYAAR SINGLA
SAJI VARGHESE T.G
ARUN THOMAS(K/844/2007)
ANIL SEBASTIAN PULICKEL(K/000278/2018)
MATHEW NEVIN THOMAS(K/000936/2019)
KURIAN ANTONY MATHEW(K/1812/2020)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.02.2025
ALONG WITH WP(C).29766/2022, 29767/2022, THE COURT ON 28.05.2025 DELIVERED
THE FOLLOWING:
WP(C) NOs. 29766, 29767
and 29768 OF 2022 7
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JUDGMENT
[WP(C) Nos.29766/2022, 29767/2022, 29768/2022]
“TRAI sets the field, CCI calls the fouls”
2. Heard Mr Maninder Singh (Sr), Mr Jaiju Babu (Sr), Mr
Santhosh Mathew (Sr), Ms Sneha Jain, Mr Ranjeet Singh Sidhu, Mr
Prabhas Bajaj, learned Counsel for the petitioners; Mr N
Venkataraman, learned Additional Solicitor General of India
assisted by Mr Jaishankar V Nair, learned Central Government
Counsel of Competition Commission of India and Mr Ritin Rai (Sr),
Mr Avinash Amarnath, Mr Tarun Donadi, Mr Uday Bali, Mr Naman
Golechha, Mr.Dayaar Singla, Mr Saji Varghese T G learned Counsel
for the respondents.
Introduction:
3. The alleged conflict between the scope and jurisdiction
of the authorities under the Telecom Regulatory Authority of
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India (TRAI) Act 1997 and the Competition Commission of India
(CCI), a statutory authority constituted under the Competition Act
2002, is involved in the present writ petitions. The issue is which
authority, i.e., TRAI (Telecom Regulatory Authority of
India)/ TDSAT (Telecom Disputes Settlement and Appellate
Tribunal) or the Competition Commission of India (CCI), would
have the jurisdiction to entertain and decide the complaint filed
by the respondent, i.e., Asianet Digital Network Private Limited
(ADNPL) (a wholly owned subsidiary of Asianet Satellite
Communications Limited)/ Informant.
4. There are mainly three parties which are relevant to the
present writ petitions:
(a) Star India Private Limited (SIPL) – Broadcaster of Satellite-
Based TV Channels
(b) Asianet Digital Network Private Limited (ADNPL/Informant)
– A Multi-System Operator (MSO) engaged in the business of
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providing TV services. It receives broadcasting signals from SIPL
for monetary consideration and distributes the channels of SIPL
to its customers in pursuance of the agreements entered into
between the parties.
(c) Kerala Communicators Cable Limited (KCCL) – Another MSO
and a competitor of ADNPL, having similar arrangements with the
SIPL.
Facts:
5. ADNPL submitted Information to the CCI alleging SIPL’s
abuse of dominant position and denial of market access to the
ADNPL in violation of Section 4(2)(a)(ii) and Section 4(2)(c) of the
Competition Act 2002 by entering into sham marketing
agreements with KCCL. TRAI formulated and introduced the
Telecommunication (Broadcasting and Cable) Services
Interconnection (Addressable Systems) Regulations 2017 (for
short, ‘Interconnection Regulations 2017’) and
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and 29768 OF 2022 102025:KER:36755
Telecommunication (Broadcasting and Cable) Services (Eighth)
(Addressable Systems) Tariff Order 2017 (Collectively, New
Regulatory Framework), under which the Maximum Retail Price
(MRP) for each pay channel was fixed. The TRAI had a total
discount of 35% of the MRP payable to distributors (split as 15%
towards discount and 20% towards distribution fee). Under the
TRAI regulatory framework, broadcasters are to treat distributors
non-discriminatorily and offer discounts on fair and transparent
terms to ensure a level playing field.
5.1 The Information alleges that SIPL offered KCCL
discounts up to 50% (instead of 15% as prescribed by the
Interconnection Regulation 2017). SIPL achieved this by entering
into marketing and advertising agreements with KCCL, offering
benefits in the form of discounts. Marketing agreements were
entered into between the SIPL and the KCCL purporting to
advertise the petitioner’s channel ‘Asianet’, which already enjoys
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huge popularity in Kerala, having four times more viewership
than its nearest competing channel. The agreement is only a
sham, as these advertisements are being featured by the KCCL on
a ‘Test’ channel at the end of its channel list, which merely shows
these advertisements on a 24*7 basis without any real viewership.
The SIPL, therefore, has violated Section 4(2)(a)(ii) and Section
4(2)(c) of the Competition Act for offering discriminatory
discounts, denying market access to ADNPL, and providing unfair
advantage to KCCL.
5.2 ADNPL, which is an MSO, predominantly provides
digital TV services in Kerala. It also operates in Karnataka,
Andhra Pradesh, Telangana and Odisha. As per the complaint
filed before the CCI, the ADNPL had a customer base of 10.02 lakh
in Kerala and a minimum of 1.19 lakh customers in all other States
combined (as of December 2021). The SIPL and its subsidiaries and
group companies, including Disney and Asianet Star, are
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broadcasters of satellite-based TV channels in India, having
multiple channels of different languages and various genres,
including general entertainment, movies, kids’ entertainment,
sports and infotainment.
Order of the Competition Commission of India:
6. The ADNPL has made the following prayers before the
Competition Commission of India:
“(i) Pass an order under Section 26 (1) of the Act to cause an
investigation into the discriminatory conduct of SIPL;
(ii) Pass an order under Section 27 of the Act finding that SIPL has
abused its dominant position in contravention of Section 4 of the Act
by indulging in discriminatory pricing and conduct resulting in the
denial of market access;
(iii) Impose the highest penalty on SIPL given its habitual and
repeated contraventions of the Act;
(iv) Pass an order directing SIPL to cease and desist from indulging
in discrimination between DPOs;
(v) Pass an order to refund the excess amount along with interest @
12% p.a to ADNPL, w.e.f. 01.02.2019 in accordance with parity with
KCCL in Kerala and parity with other MSOs. receiving the highest
benefits above 35% of MRP and also pay compensation of Rs 200
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crores demanded by ADNPL on SIPL; and
(vi) Pass any other order as it may deem fit.”
6.1 The CCI, after considering the Information and
materials available on record, noted the thrust of the allegations
that SIPL offered additional discounts to select MSOs and KCCL,
ADNPL’s main competitor in Kerala. SIPL had placed MSOs like
ADNPL at a huge disadvantage, which is detrimental to the
competition and competitors in the market. Such conduct of the
SIPL, which is the dominant player, would be violative of the
provisions of Section 4 of the Competition Act, which also
amounts to imposition of unfair and discriminatory prices and
denial of market access to the Informant, besides distorting the
level playing field in the marketplace and hindering the ability of
the players to compete in an effective manner.
6.2 The CCI also observed that apparently KCCL was getting
the channels at about 30% of the MRP, with about 70% discount
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(special discounts of up to 50% added with a distribution fee of
20%), whereas the maximum permissible discount under the New
Regulatory Framework was capped at 35%. This indirect way of
providing discounts to circumvent the New Regulatory
Framework is by way of promotion and advertising payments to
KCCL through high-value advertising deals.
6.3 The result of SIPL providing channels to KCCL at a
discounted price was that Informant was constrained to price its
channels higher than those of KCCL, ultimately losing its
consumers, with a corresponding gain to KCCL. The Informant
had to offer services at a loss-making price to retain the subscriber
base, but in vain. ADNPL’s subscriber base fell from 14.5 lakhs in
April 2019 to 11.76 lakhs in September 2021, while the subscriber
base of KCCL went up from 21.3 lakhs in April 2019 to 29.35 lakhs
in September 2021.
6.4 The CCI, therefore, directed the Director General (DG) to
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cause an investigation to be made into the matter and submit a
report within a period of 60 days from the date of receipt of the
Order.
Writ Petitions before the Bombay High Court:
7. Asianet Star Communications Private Limited, Disney
Broadcasting (I) Private Limited, and Star India Private Limited
filed W.P.(C) Nos. 3755, 3845 and 3860 of 2022, respectively, before
the Bombay High Court, challenging the Order dated 28.02.2022
passed by the Competition Commission of India.
7.1 The Bombay High Court vide Interim Order dated
06.04.2022 directed all three petitioners to furnish to the Director
General such documentary material and information as he had
called for or in response to his queries on a without-prejudice and
no-equities basis. However, an interim direction was issued to the
CCI not to pass any further orders or to adjudicate further on the
complaint filed by the ADNPL until further orders of the Court.
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The CCI was also directed not to permit or direct any coercive
actions against the petitioners until the next date. The
information collected by the Director General was to be kept
confidential as specifically required by law. The information and
documents supplied to the Director General by the petitioners
were not to be shared or used by the ADNPL in any manner.
7.2 These writ petitions were finally disposed of by the
Bombay High Court vide judgment dated 16.09.2022, having found
that no part of the cause of action has arisen within the territorial
jurisdiction of the Bombay High Court. The petitioners therein
were granted liberty to file appropriate proceedings against the
impugned order passed by the CCI before the appropriate Forum
having territorial jurisdiction.
Present writ petitions:
8. Thus, after the Bombay High Court disposed of the writ
petitions, the present writ petitions came to be filed before this
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Court. This Court vide Interim Order dated 06.10.2022 passed an
identical order as that of the Bombay High Court dated 06.04.2022.
Submissions:
On behalf of the Petitioners:
9. Mr Maninder Singh (Sr) and Mr Santhosh Mathew (Sr),
learned Senior Counsel, assisted by Ms Sneha Jain, learned
Counsel, have broadly made the following submissions. The sum
and substance of the allegations in the Information filed by the
ADNPL before the CCI is violation/non-compliance of the TRAI
Regulations by the SIPL, which is evident from paragraphs 8.11(b),
9.4, and 10.1 of the Information.
9.1 The Parliament has provided a specific Sectoral
Regulator, i.e., TRAI, under the TRAI Act, regulating broadcasting
activities/services. This Sectoral/Special Regulator has been
assigned the duties and responsibilities to regulate ‘broadcasting
services’ and ‘cable services’ as ‘telecommunication services’ since
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2004 in terms of the provisions of the TRAI Act with the
Notification No.39 (S.O. No.44(E)) dated 09.01.2004. As the
allegations of the ADNPL pertain to the violation of the regulatory
framework conceived by the TRAI, any breach of this regulatory
framework can be examined only by the TRAI, as the TRAI is the
sectoral regulator and would have the exclusive jurisdiction over
the subject matter.
9.2 The TRAI Act is a complete Code in itself. The TRAI Act
and Regulations framed thereunder regulate broadcasting
activities/services in all respects, including competition. The
scheme of the TRAI Act includes all measures to be adopted by the
TRAI as the Regulator to deal with any anti-competitive activity
and maintain and encourage healthy competition in the
broadcasting sector. Only one regulator should regulate any
particular activity/industry to avoid any confusion, fight for
supremacy or dispute over jurisdiction. As broadcasting services
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are governed by a special law, i.e., TRAI Act, TRAI, being the
sectoral regulator, should examine the allegations, and no other
Regulator, such as CCI, should entertain the complaint in respect
of the alleged noncompliance/violation of the TRAI Act and the
Regulations framed thereunder.
9.3 It is further submitted that as the TRAI Act covers all
aspects, including competition, and the Competition Act, being
the general law dealing with competition, should not entertain
complaints/Information in respect of the alleged anti-competitive
activities of a market player in broadcasting activity/services.
The special law will prevail over the general competition law
under the Competition Act. Therefore, the CCI ought not to have
entertained the Information and passed the impugned order.
10. The ADNPL itself understood this aspect that any such
allegation/dispute can only be raised before the TRAI/TDSAT and
not before the CCI. In the past, ADNPL had filed petitions raising
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similar issues for redressal before the TDSAT. One such petition
was Broadcasting Petition No.150/2018, in which the TDSAT held
that Asianet was not similarly placed as KCCL. This order was not
disclosed by the ADNPL in its Information filed before the CCI.
This Order passed by the TDSAT would have rendered the ADNPL’s
Information to the CCI unsustainable at the threshold. The
learned Senior Counsel further submitted that the past conduct of
the ADNPL would act as an estoppel against it for approaching the
CCI with the present complaint. The ADNPL had obtained
forbearance from TRAI and had obtained orders for
confidentiality of commercial agreements from this Court.
10.1 The ADNPL had challenged the requirement of
disclosure of commercial agreements before this Court in W.P.(C)
No.428/2020, wherein the Telecommunication (Broadcasting and
Cable) Services Register of Interconnection Agreements
Regulations 2019 were challenged, so far as they required the
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distributors of signals of television channels to disclose the
information regarding agreements with regard to
placement/marketing and any other technical or commercial
activities.
10.2 This Court vide judgment dated 12.07.2021 in the
aforesaid writ petition quashed the Regulation so far as they
required a disclosure of the placement and marketing agreements
bilaterally entered into between the broadcasters and the
distributors. The submission is that the Information filed by the
ADNPL before the CCI has sought disclosure of SIPL’s marketing
agreements. Once the ADNPL itself obtained the order from the
Court against the disclosure of marketing /placement
agreements, the ADNPL is estopped from seeking the same
disclosure from the petitioner before the CCI.
11. It is further submitted that the commercial/ marketing
agreements after interconnection had been covered by the TRAI
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in its Regulations (registration of agreements). The ADNPL had
themselves requested the TRAI for forbearance on placement
agreements and other marketing agreements. In fact, they had
challenged the stipulation for registration of placement
agreements and commercial agreements by the TRAI in its
Regulations by filing W.P.(C) No.428/2020 before this Court.
11.1 Therefore, it would not be proper to say that the TRAI
would not have jurisdiction to regulate commercial agreements
post-interconnection, and only forbearance is being observed by
the TRAI, at present. Forbearance would mean that the
Regulatory Authority would have jurisdiction, but the issue is
being continuously monitored. Section 11(1)(b)(iv) provides for
regulating and forbearing the arrangements among service
providers, which is an overriding power of the TRAI. The TRAI
generally gives freedom to the parties to enter into commercial
agreements on their own, and it is in the event of failure that the
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TRAI exercises its regulatory powers. In the event of
interconnections, the TRAI need not extend the commercial
freedom to the parties at the threshold and can regulate
interconnection from the very beginning. The submission is that,
after seeking forbearance from the TRAI over placement
arrangements and commercial agreements, it would not be
permissible for the ADNPL to contend that the TRAI would not
have jurisdiction after interconnection.
11.2 Grant of forbearance is an integral part of the regulatory
regime exercised by the TRAI, and it constitutes the continuing
pendency of that issue before the TRAI. Whenever the Regulatory
Authority deems it appropriate to intervene, the state of
forbearance would be withdrawn with the insistence on
compliance with the regulatory stipulations imposed by the TRAI.
As the TRAI is observing forbearance, the issue is pending for
monitoring, and the TRAI may intervene in future to remove the
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state of forbearance.
11.3 The TRAI, in paragraph 18 of its Explanatory
Memorandum to the 2017 Regulations, stipulated that TRAI, being
a Sectoral Regulator of broadcasting services and cable services,
had been entrusted with the task of ensuring a level playing field
and fair competition in the sector and also ensuring that the
interest of consumers and service providers are protected.
Therefore, the TRAI had the power to look at all issues affecting
competition in the market and to craft remedies for the same on
an ex-ante basis.
11.4 The submission is that the TRAI Act, being a Self-
Contained Code in the subject of telecom/broadcasting, and it
being a subject of broadcasting, it covers every aspect of
competition as well. The Competition Act in respect of the
broadcasting service has become the general law on competition.
The TRAI, being a Sectoral Regulator of broadcasting services and
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cable services, is entrusted with the task of ensuring a level
playing field and fair competition in the sector to ensure that the
interests of the consumers and the service providers are
protected.
11.5 The learned Senior Counsel has further submitted that
in view of the judgment in Competition Commission of India v.
Bharti Airtel Limited1, CCI would have sequential jurisdiction
where there was a cartelisation. If there is no allegation of
cartelisation, the CCI would not possess any jurisdiction at all. It
is further submitted that the jurisdiction issue has to be decided
at the threshold. The CCI ought to have decided whether it had
the jurisdiction to proceed with the complaint or not, as per the
provisions of Section 21A of the Competition Act. To decide the
existence or absence of jurisdiction of any authority at the
threshold, issuance of notice by the CCI to the parties against
1
(2019) 2 SCC 521
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whom the Information has been filed is required. In the present
case, no notice has been issued, and the CCI ex parte has directed
the Director General to conduct the investigation and submit the
report and, without issuing notice, decide the issue of jurisdiction.
As jurisdiction goes to the root of the matter, without issuing
notice and giving a hearing to the petitioner, passing an order for
investigation is an exercise in nullity and in violation of the
principles of natural justice. Therefore, the impugned order is
unsustainable and is liable to be set aside.
Asianet Digital Network Private Limited’s:
12. Mr Ritin Rai, learned Senior Counsel, assisted by Mr
Tarun Donadi, learned Counsel, appearing for the ADNPL, in
response to the submissions advanced by Mr Maninder Singh,
learned Senior Counsel, has submitted that the ADNPL has
submitted information to the CCI about the SIPL’s abuse of
dominant position and denial of market access to the ADNPL in
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violation of Sections 4(2)(a)(ii) and 4(2)(c) of the Competition Act
by entering into sham marketing agreements with KCCL. These
agreements/arrangements are entered into after interconnection
and are not regulated by the TRAI. The commercial
agreements/arrangements made after interconnection are
outside the jurisdiction of the TRAI. Pursuant to the order of the
CCI, the Director General has completed its investigation and
submitted the report to the CCI, and the CCI will afford a hearing
to the petitioner before it passes any order under Sections 26/27
of the Competition Act. The petitioner may raise the issue of
jurisdiction before the CCI, and the CCI would decide the matter.
12.1 It is further submitted that even otherwise, the subject
matter of Information, i.e., the marketing agreements, would
squarely fall within the jurisdiction of the CCI. The question
which needs to be decided by the CCI is whether the petitioner,
SIPL, has abused its dominant position and indulged in unfair and
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discriminatory conduct by entering into the marketing
arrangements/agreements with the KCCL. The TRAI’s regulatory
scope is limited to ‘interconnection’. A Sectoral Regulator cannot
exercise forbearance over an issue which falls outside its
regulatory regime.
12.2 The present dispute does not involve any question of
sequential jurisdiction. The petitioner had not approached the
TRAI/TDSAT, and even otherwise, it could not have approached
these authorities for the reliefs sought in the Information, which
is predominantly an abuse of the dominant position by the SIPL
and a denial of market access to the ADNPL. The marketing
agreements and placement arrangements are outside the purview
of the TRAI’s regulatory regime. The issue squarely falls within
the jurisdiction of the CCI, and there is no jurisdictional fact
involved for decision by the CCI.
12.3 The submission is that the CCI has the jurisdiction to
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proceed with the investigation regarding the petitioner’s abuse of
the dominant position and denial of market access to ANDPL.
These issues are outside the TRAI’s jurisdiction, and TRAI does not
have the jurisdiction to investigate the allegations in the
Information merely because the matter pertains to the
broadcasting entities. There is no obligation for the CCI to provide
a right of hearing at the stage of Section 26(1), which is a purely
administrative stage. The Order Section 26(1) does not entail any
civil consequences. At the investigation stage, this Court may not
interfere with the matter. Before passing the order under Section
26(1), there is no requirement for notice and hearing. In the
present case, even otherwise, the Director General’s investigation
stands concluded.
12.4 The learned Senior Counsel has placed reliance on the
judgment in the case of CCI v. SAIL2. In AIDCF v. TRAI3, the
2
(2010) 10 SCC 744
3
(2021) SCC Online Ker 7162
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contention of the AIDCF, another MSO, was that the TRAI would
not have jurisdiction vis-à-vis marketing agreements. However,
that would not mean that the CCI would not have the jurisdiction
to investigate sham marketing agreements entered by the SIPL
with the KCCL in abuse of the dominant market position, which
has the consequence of denial of market access to the ADNPL. The
decision in the AIDCF’s case is that TRAI does not exercise
forbearance over marketing agreements, as marketing
agreements would not fall within TRAI’s regulatory regime, and
the regulatory regime of TRAI is limited to interconnection. The
issue before the CCI is whether the petitioner/SIPL is indulging in
unfair/discriminatory conduct by entering into sham marketing
agreements with KCCL in abuse of its dominant position in
violation of Section 4 of the Competition Act.
12.5 The learned Senior Counsel has submitted that the
judgment of the Supreme Court in Bharti Airtel (supra) is not
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applicable to the facts of the present case. TRAI may have primary
jurisdiction when the dispute relates to a jurisdictional domain of
the TRAI’s regulatory regime. However, in the present case, the
matter relates to the marketing agreements/arrangements which
are outside the jurisdictional regime of the TRAI. Therefore, the
TRAI cannot decide the issue involved in the present case,
inasmuch as there is no jurisdictional issue pertaining to the
interconnection involved in the present case. There is no question
of sequential jurisdiction or overlap of jurisdiction between the
CCI and the TRAI. Further, it would be open to the petitioner to
raise the question of the jurisdiction of the CCI and whether the
CCI is competent to hear and decide on its own jurisdiction.
Reliance is placed on the judgment in the case of Aamir Khan
Productions India Private Limited v. Union of India4.
Competition Commission of India’s:
4
2010 SCC OnLine Bom 1226
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13. Mr N Venkataraman, learned Additional Solicitor
General of India, assisted by Mr Jaishankar V Nair, learned Central
Government Counsel, has submitted that this Court had not
interfered with the investigation and the investigation has been
completed by the Director General and the report has been
submitted before the CCI for further adjudication. When the
investigation is complete, the CCI should be allowed to pass an
order as envisaged under Section 26 or Section 27 of the
Competition Act. At this stage, it would not be proper to interfere
with the matter when the investigation is complete.
13.1 From the scheme of the Act, it is evident that the CCI is
empowered and entitled to inquire into any matter which may
contravene the provisions of Section 4 of the Act. The CCI is the
only Regulator constituted by the Parliament, which has the
power to direct investigations to be carried out into matters
violating Section 4 of the CCI Act. The TRAI does not have the
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power to examine a transaction in the context of abuse of
dominant position, which is the power exclusively vested with the
CCI. There is no such power vested with the TRAI under the
provisions of the TRAI Act as provided in Section 19(4) of the Act,
in respect of the transactions pertaining to the abuse of the
dominant position. Therefore, when the allegations are in respect
of the abuse of the dominant position by a market player in the
relevant field, it is the CCI which will have jurisdiction and not the
TRAI, even in respect of the broadcasting and cable services.
13.2 The TRAI, in its regulatory regime and part of its
licensing conditions, may impose certain obligations and
restrictions on parties to ensure a level playing field and fairness
in the market. Any breach of these may certainly invite an action
from the TRAI, being a Sectoral Regulator. However, the TRAI
would have the jurisdiction for initiating an action on a breach of
a licensing condition alone. It could not have jurisdiction in
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respect of the abuse of the dominant position by a market player
in the relevant field. If the petitioner’s contentions are accepted,
then every transaction involving a Sectoral Regulator would be
outside the ambit of inquiry under the Competition Act, even
though such a Sectoral Regulator is not vested with the powers to
examine the transactions from a Competition Law perspective.
The TRAI’s action is limited to the license holder. However, any
investigation by the CCI in a matter involving the abuse of
dominance would be from the perspective of the end consumer
and the wide market impact that such dominance has.
13.3 Further, it is submitted that the CCI in its impugned
order passed under Section 26(1) had, prima facie, found violations
of Sections 4(2)(a)(ii) and 4(2)(c) of the Competition Act.
Therefore, it ordered the investigation by the Director General.
The final order under Section 26(1) would be passed after hearing
the parties and considering the report submitted by the Director
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General to the CCI. The issue raised in the Information is wholly
outside the purview of the regulatory regime of the TRAI.
13.4 Furthermore, it is further submitted that the judgment
of Bharti Airtel (supra) was delivered on the three underlying
facts:
i) Under TRAI’s licensing conditions, each telecom
operator is required to provide a point of interconnection
with other telecom operators.
ii) Reliance Jio’s grievance was that the point of
interconnection was not provided to it by other telecom
operators. It also sought specific performance that TRAI
direct the operators to provide such points of
interconnection.
iii) TRAI/TDSAT was already seized of the matter and held
the jurisdiction to settle the dispute raised by Reliance Jio.
13.5 The Supreme Court did not oust the CCI’s jurisdiction to
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examine transactions from a Competition Law perspective.
However, on the basis of the above three factual aspects, it was
held that the matter may need to be examined by the TRAI first
since it involved interpreting certain areas that would lie within
the TRAI’s exclusive domain, making them jurisdictional issues
and for which the TRAI alone is competent to examine.
13.6 In the present case, the TRAI would not have to resolve
any question first. Even if it is held by the TRAI that the pricing
mechanism adopted by the SIPL would not be violative of any
licensing condition prescribed by the TRAI, it would not render
the proceedings initiated by the CCI invalid. The CCI would retain
its jurisdiction to examine the matter under Section 4, read with
Section 19(4) of the Act, to determine whether there was an abuse
of dominance by the SIPL in the relevant market. The CCI is not
required to examine the regulatory framework of the TRAI or
interpret any licensing conditions. There are no jurisdictional
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requirements that need to be ironed out by the TRAI first.
13.7 The learned Additional Solicitor General of India has
relied on the judgment of the Delhi High Court in WhatsApp Llc v.
Competition Commission of India5, which held that the CCI has the
exclusive jurisdiction to examine the matter through the prism of
Competition Law.
Salient Provisions of the Statutes:
The Competition Act 2002:
14. The object of the Competition Act is to establish a
Commission to prevent practices having an adverse effect on
competition, to promote and sustain competition in markets, to
protect the interest of consumers and ensure freedom of trade
carried on by the participants in markets in India. The relevant
statutory provisions of the Competition Act 2002 are taken note of
hereunder:
5
2021 SCC OnLine Del 2308
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14.1 Section 2(c) defines “cartel” as 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.
14.2 Section 2(h) defines “enterprise” to mean a person or a
department of the Government, including units, divisions,
subsidiaries, who or which is, or has been, engaged in any
economic 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, but does not include any activity of the
Government relatable to the sovereign functions of the
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Government including all activities carried on by the departments
of the Central Government dealing with atomic energy, currency,
defence and space;
Explanation: For the purposes of this clause,
(a) “activity” includes profession or occupation.
(b) “article” includes a new article, and “service” includes a
new service.
(c) “unit” or “division”, in relation to an enterprise,
includes–
(i) a plant or factory established for the production,
storage, supply, distribution, acquisition or control of any
article or goods.
(ii) any branch or office established for the provision of
any service.
Enterprise means a Government department engaged in
any activity related to the various Government activities.
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The only exception is the government activities relating to
sovereign functions, including atomic energy, currency,
defence, and space.
14.3 Section 2(r) defines “relevant market” to mean the
market which may be determined by the Commission with
reference to the relevant product market or the relevant
geographic market, or with reference to both the markets.
15. Chapter II of the Competition Act deals with the
prohibition of anti-competitive agreements regarding
production, supply, distribution, storage, acquisition or control of
goods or provision of services, which may have an appreciable
adverse effect on competition within India. This provision is also
against the formation of a cartel engaged in identical or similar
trade of goods or provision of services, which directly or
indirectly determines the purchase or sale price.
15.1 Sub-section (5) of Section 3 provides an exemption for
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protection from infringement of intellectual property holders in
the context of anti-competitive agreements under Section 3. It is
designed to restrain any infringement of reasonable conditions
for protecting any rights under the Copyright Act, Patents Act,
Trade and Merchandise Marks Act, etc, may be prescribed in
agreement, and such an agreement shall be outside the purview
of the anti-competitive agreements as defined in Section 3.
15.2 The anti-competitive agreements entered into in
contravention of the provisions shall be void. Section 3 also
specifies certain activities which shall be presumed to have an
appreciable effect on competition. It specifies certain agreements
which shall be in contravention of sub-section (1) of Section 3 if
such an agreement causes an appreciable adverse effect on
competition.
16. Section 4 prohibits abuse of dominant position by an
enterprise or group. Sub-section (1) of Section 4 casts an
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obligation on every enterprise or group not to abuse its dominant
position. Sub-section (2) of Section 4 lists certain
activities/circumstances that would constitute abuse of dominant
position by an enterprise or group. If an enterprise or group
directly or indirectly imposes an unfair or discriminatory price on
the purchase or sale (including a predatory price) of goods or
services, then it amounts to an abuse of the dominant position
under Section 4(2)(a)(ii) of the Competition Act.
16.1 If an enterprise or group indulges in practice or
practices resulting in the denial of market access in any manner,
then it would amount to an abuse of dominant position under
Section 4(2)(c). Explanation to Section 4 defines “dominant position”
to mean a position of strength, enjoyed by an enterprise, in the
relevant market, in India, which enables it to —
(i) operate independently of competitive forces
prevailing in the relevant market; or
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(ii) affect its competitors or consumers or the relevant
market in its favour;
17. The Duties, Powers and Functions of the Competition
Commission are defined under Chapter IV of the Competition Act.
The Act casts a duty on the Commission to eliminate practices
having an adverse effect on competition, to promote and sustain
competition, to protect the interests of consumers and ensure
freedom of trade carried on by other participants in markets in
India.
18. Under Section 19 of the Competition Act, the
Competition Commission is entitled to inquire into any
contravention of the provisions contained in sub-section (1) of
Section 3 or sub-section (1) of Section 4 either on its own motion
or on receipt of a complaint from any person, consumer or their
association or trade association or on a reference made to it by the
Central Government or a State Government or a statutory
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authority raising violation of both provisions.
18.1 Section 19(4) lists thirteen criteria and parameters to
which the Competition Commission of India is mandated to give
due regard when determining whether an enterprise enjoys a
dominant position or whether a market constitutes a relevant
market.
19. Section 20 empowers the Commission, on its own
knowledge or information relating to acquisition as referred to in
Section 5(a) and (b) or merger or amalgamation referred to in
clause (c) to determine whether such combination has caused or
is likely to cause an appreciable adverse effect on competition in
India. It lays down the limitation of time for initiation of inquiry
under Section 20 as one year from the date on which the
combination has taken effect as a result of acquisition, merger or
amalgamation, etc, when such inquiry is conducted by the
Commission upon its own knowledge or information.
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19.1 Sub-section (4) of Section 20 lays down the factors which
the Commission should take into consideration to determine
whether the combination has an appreciable adverse effect on the
competition in the relevant market or not.
20. Section 21 and 21A provide for reference to be made by
the Statutory Authority and reference by the Competition
Commission, respectively. Under Section 21, if a Statutory
Authority is entrusted with the responsibility of regulating any
goods or service or market and concludes that the decision taken
by such Statutory Authority would be contrary to the provisions
of the Competition Act, then the Statutory Authority shall be
bound to refer to the Commission. The Commission, after hearing
the parties to the proceedings, shall give the Statutory Authority
its opinion, and thereafter the Statutory Authority shall pass its
order.
20.1 Under Section 21A if the Competition Commission
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during the course of the proceedings forms an opinion on a issue
raised by any party that a decision taken by the Commission
during such proceedings or the decision which is proposed to be
taken would be contrary to any provision of the 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. The Commission may also make a suo motu
reference to the Statutory Authority. On receipt of the reference
by the Competition Commission, the Statutory Authority shall
give its opinion within sixty days of receipt of such a reference,
and the Commission shall consider the opinion of the Statutory
Authority and thereafter give its findings recording reasons
thereof on the issues referred to in the said opinion.
21. Section 26 lays down the procedure to be followed for
conducting the inquiry by the Commission under Section 19. The
CCI is empowered to direct the Director General to cause an
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investigation to be made into the matter if it is of the opinion that
there exists a prima facie case. The Director General is required to
submit a report under sub-section (3) of Section 26, based on
which the Competition Commission can either close the matter
forthwith or order further investigation and pass orders under
21.1 Sections 26(5) to 26(8) provide opportunities to parties
to file objections and be heard before any order is passed that may
prejudice a right of a party.
22. Section 27 lays down the orders which may be passed by
the Commission after inquiry if it finds that any agreement
referred to in Section 3 or action of an enterprise in a dominant
position is in contravention of Section 3 or Section 4, which would
include a direction to the enterprise to discontinue such abuse of
dominant position and inter alia impose penalty.
23. Section 28 empowers the CCI to order the division of an
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enterprise enjoying a dominant position.
24. Section 60 provides that the provisions of the
Competition Act will have an effect, notwithstanding anything
inconsistent therewith contained in any other law for the time
being in force.
Telecom Regulatory Authority of India (TRAI) Act 1997:
25. The object of the TRAI Act is to provide for the
establishment of the Telecom Regulatory Authority of India and
the Telecom Disputes Settlement and Appellate Tribunal to
regulate the telecommunication services, adjudicate disputes,
dispose of appeals and to protect the interests of service providers
and consumers of the telecom sector as well as to promote and
ensure orderly growth of the telecom sector.
25.1 The Statement of Objects and Reasons of the TRAI Act of
1997 would disclose that the Act has been amended to bring the
quality of telecom services to world standards, to provide a wide
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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 and making
arrangements/provisions for protection and promotion of
consumer interest and ensuring fair competition, for which a
Regulator (TRAI) has been established to regulate the telecom
services and infrastructure for orderly and healthy growth apart
from protection of the consumer interest.
26. Section 2 is the definition clause. Clause (k) of sub-
section (1) of Section 2 defines “telecommunication service” to mean
service of any description (including electronic mail, voice mail,
data services, audio tax services, video tax services, radio paging
and cellular mobile telephone services) which is made available to
users by means of any transmission or reception of signs, signals,
writing, images and sounds or intelligence of any nature, by wire,
radio, visual or other electro-magnetic means but shall not
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include broadcasting services. Provided that the Central
Government may notify other services to be telecommunication
services, including broadcasting services.
27. Section 3 of the TRAI Act is in respect of the
establishment and incorporation of the Authority, i.e., the
Telecom Regulatory Authority of India. The powers and functions
of the Authority are prescribed in Chapter III of the TRAI Act in
Sections 11 to 13. Section 11 defines the functions of the
Authority, which would include making recommendations either
suo motu or on a request from a licensor on various aspects as
provided in sub-clauses (i) to (viii) of Clause (a) of Section 11.
27.1 Clause (b) mandates the Authority to discharge the
enumerated functions, which inter alia are (i) ensure compliance
of the terms and conditions of the licence; (ii) notwithstanding
anything contained in the terms and conditions of the licence
granted before the commencement of the Telecom Regulatory
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Authority of India (Amendment) Act, 2000 (2 of 2000), fix the
terms and conditions of inter-connectivity between the service
providers; (iii) ensure technical compatibility and effective inter-
connection between different service providers; (iv) regulate
arrangement amongst service providers of sharing their revenue
derived from providing telecommunication services; (v) lay-down
the standards of quality of service to be provided by the service
providers and ensure the quality of service and conduct the
periodical survey of such service provided by the service
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 inter-connect 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
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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;
27.2 The Authority is also mandated to 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 the Act.
28. Section 12 defines the powers of the Authority to call for
information and conduct investigations, etc. The Authority is
empowered to direct a service provider to furnish in writing such
information or explanation relating to its affairs as the Authority
may require or appoint one or more persons to make an inquiry
in relation to the affairs of any service provider and inspect the
books of accounts or other documents of any such service
provider. Sub-section (4) of Section 12 empowers the Authority to
issue such directions to service providers as may be considered
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necessary for proper functioning by the service providers.
29. Section 13 empowers the Telecom Authority to issue
such directions to the service provider from time to time for the
discharge of its functions as described under sub-section (1) of
Section 11, as may be considered necessary.
30. Chapter IV is in respect of the establishment of the
Appellate Tribunal. Section 14 of the said Chapter provides for the
establishment of the Appellate Tribunal for the adjudication of the
dispute between a licensor and a licensee, between two or more
service providers, or between a service provider and a group of
consumers. However, the Appellate Tribunal does not have the
power to inquire into the monopolistic trade practices, restrictive
trade practices and unfair trade practices which were the subject
matter of the erstwhile Monopolies and Restrictive Trade
Practices Commission established under the provisions of the
MRTP Act 1969. The procedure and powers of the Appellate
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Tribunal are defined in Section 16 of the TRAI Act. Against an
order or decision of the Appellate Tribunal, an appeal lies to the
Supreme Court under Section 18 of the TRAI Act.
31. Section 19 provides that the orders passed by the
Appellate Tribunal are executable as a decree. Section 20 is the
penal provision for willful failure to comply with the orders of the
Appellate Tribunal, which provides that in case of willful failure
to comply with the orders of the Appellate Tribunal, the person
will be punishable with a fine which may extend to one lakh
rupees and in case of a second or subsequent offence with fine
which may extend to two lakh rupees and in the case of continuing
contravention with additional fine which may extend to two lakh
rupees for every day during which such default continues.
32. Section 25 empowers the Central Government to issue
directions to the Authority as it may think necessary in the
interest of sovereignty and integrity of India, the security of the
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State, friendly relations with foreign States, public order, decency
or morality. Section 29 prescribes the penalty for contravention
of the directions issued by the Authority. Section 30 is in respect
of the offences by Companies. Section 35 is the rule-making power
of the Central Government for carrying out the purposes of the
Act. Section 36 is the regulation-making power of the Authority.
Section 38 provides that the provisions of the TRAI Act shall be in
addition to the provisions of the Indian Telegraph Act 1885 and
the Indian Wireless Telegraphy Act 1933.
Key Legal Developments:
33. The Delhi High Court, in this judgment, held that the
power under Section 11(1)(d)(iv) of the TRAI Act to regulate and
forbear the arrangement(s) amongst service providers is an
overriding power. The TRAI generally gives freedom to the
6
AIR 2000 Delhi 208
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parties to enter into commercial agreements on their own, and in
the event of interconnection, the TRAI need not extend the
commercial freedom to the parties at the threshold and can
regulate interconnection from the very beginning. Paragraphs 47
and 48 are extracted hereunder:
46. Thus, it is clear that the Authority itself understood that its own
function under Section 11(1)(d) was only to intervene in the event
of the service providers not being able to arrive at an arrangement.
It is clear that an arrangement does not necessarily imply an
agreement. However, these are matters in which the service
provider must be first given an opportunity to arrive at an
arrangement amongst themselves. The question of regulation would
only arise if the service providers are not able to arrive at an
arrangement. The Authority may lay down guidelines regarding
those arrangement, provided the guidelines are not contrary to the
terms of a license or a policy decision taken by the Government.
47. Section 14 is also relevant. One of the matters on which a dispute
could be adjudicated upon by the Authority is revenue sharing
arrangement between service providers. If the Authority had
powers to issue regulations which were binding on service providers
and/or upon the Central Government then everybody would be
bound to follow those regulations. If such a regulation could be
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issued in the absence of any arrangement, then there may be no
arrangement. In that case, there would be no question of
adjudicating dispute on a matter relating to “revenue sharing
arrangement”. To be noted that the adjudication is not in respect of
revenue sharing between service provider. The adjudication is in
respect of “revenue sharing arrangements” between the service
providers.”
Aamir Khan Productions Private Limited vs Union Of India7
34. The Bombay High Court in this case held that the
question whether the Competition Commission has jurisdiction to
initiate the proceedings is a mixed question of law and fact which
the Competition Commission is competent to decide, especially
when the matter is at the stage of further inquiry. The
Commission has not taken a decision in the matter, and there is
no reason to believe that the Competition Commission will not
consider the contentions sought to be raised by the petitioners.
Paragraphs 14 to 19 of the said judgment are extracted hereunder:
“14. It is vehemently contended on behalf of the petitioners that
7
2010 SCC Online Bombay 1226
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issuance of notices by the Competition Commission proceeds on
the basis of incorrect assumption of certain facts and issues. It is,
therefore, necessary to discuss the power of the Commission to
determine jurisdictional facts. It is true that the jurisdictional fact
is a fact which must exist before a Court, Tribunal or an Authority
assumes jurisdiction to decide a particular matter.
In Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi, AIR 1959 SC
492 (para 17), the Apex Court quoted with approval the following
observations of Lord Esher M.R., in the Queen v Commissioner for
Special Purposes of the Income-tax, (1888) 21 QBD 313, 319 :
“When an inferior Court or tribunal or body, which has to exercise the power
of deciding facts is first established by Act of Parliament, the legislature has to
consider what powers it will give that tribunal or body. It may in effect say that,
if a certain state of facts exists and is shown to such tribunal or body before it
proceeds to do certain things, it shall have jurisdiction to do such things, but
not otherwise. There it is not for them conclusively to decide whether that state
of facts exists, and, if they exercise the jurisdiction without its existence, what
they do may be questioned, and it will be held that they have acted without
jurisdiction. But there is another state of things which may exist. The
legislature may intrust the tribunal or body with a jurisdiction, which includes
the jurisdiction to determine whether the preliminary state of facts exists as
well as the jurisdiction on finding that it does exist, to proceed further or do
something more. When the legislature are establishing such a tribunal or body
with limited jurisdiction they give them, whether there shall be any appeal
from their decision, or there will UPA 20 wp358-10 be none. In the second of
two cases I have mentioned it is an erroneous application of the formula to say
that the tribunal cannot give themselves jurisdiction by wrongly deciding
certain facts to exist, because the legislature gave them jurisdiction to
determine all the facts, including the existence of the preliminary facts on
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which the further exercise of their jurisdiction depends; and if they were given
jurisdiction so to decide, without any appeal being given, there is no appeal
from such exercise of their jurisdiction.”
The Apex Court then stated as under :
“These observations which relate to inferior Courts or tribunals with limited
jurisdiction show that there are two classes of cases dealing with the power of
such a tribunal (1) where the legislature entrusts a tribunal with the
jurisdiction including the jurisdiction to determine whether the preliminary
state of facts on which the exercise of its jurisdiction depends exists and (2)
where the legislature confers jurisdiction on such tribunals to proceed in a case
where a certain state of facts exists or is shown to exist. The difference is that
in the former case the tribunal has power to determine the facts giving it
jurisdiction and in the latter case it has only to see that a certain state of facts
exists.”
Whatever may be the debate about the scope of review by the Writ Court
of the decision of a Tribunal on a jurisdictional fact, every Tribunal has
the jurisdiction to determine the existence or otherwise of the
jurisdictional fact, unless the statute establishing the Tribunal provides
otherwise.
On a bare reading of the provisions of the Competition Act, 2002, it is
clear that the Competition Commission has the jurisdiction to determine
whether the preliminary state of facts (on which the further exercise of
its jurisdiction depends) exists. There is nothing in the UPA 21 wp358-10
Competition Act, 2002 to indicate that the Competition Commission is
not invested with the jurisdiction to determine such jurisdictional fact.
15. The question whether the Competition Commission has jurisdiction
to initiate the proceedings in the fact situation of these cases is a mixed
question of law and fact which the Competition Commission is
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competent to decide. The matter is still at the stage of further inquiry.
The Commission is yet to take a decision in the matter. There is no
reason to believe that the Competition Commission will not consider all
the contentions sought to be raised by the petitioners in these petitions
including the contention based on sub-section (5) of Section 3 of the
Competition Act.
16. The submission of the respondents that the Writ Court would not
entertain a petition challenging a show cause notice, is sought to be
countered on behalf of the petitioners by relying on the decision in
Calcutta Discount Co. Ltd, (supra).
The contention which appealed to the Apex Court in the above case was
the following:-
“26. Mr. Sastri next pointed out that at the stage when the Income Tax Officer issued
the notices he was not acting judicially or quasi-judicially and so a writ of certiorari or
prohibition cannot issue. It is well settled however that though the writ of prohibition
or certiorari will not issue against an executive authority, the High Courts have power
to issue in a fit case an order prohibiting an executive authority from acting without
jurisdiction. Where UPA 22 wp358-10 such action of an executive authority acting
without jurisdiction subjects or is likely to subject a person to lengthy proceedings and
unnecessary harassment, the High Courts, it is well settled, will issue appropriate
orders or directions to prevent such consequences.”
(emphasis supplied)
17. In the facts of the instant case, it cannot be said that requiring the
petitioners to appear before the Competition Commission will subject
the petitioners to lengthy proceedings and unnecessary harassment.
Sections 8 and 9 of the Competition Act provides that the Commission
shall consist of a Chairperson and two to six Members having special
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knowledge of, and professional experience of at least fifteen years in
international trade, economics, business, commerce, law, finance,
accountancy, management, industry, public affairs or competition
matters, including competition law and policy. The Chairperson and
Members of the Commission are to be appointed by the Central
Government from a panel of persons recommended by a Selection
Committee headed by the Chief Justice of India or his nominee.
In case the final decision of the Competition Commission is adverse
to the petitioners, the petitioners will have right to challenge the
same in an appeal before the Competition Appellate Tribunal
established under Section 53A of the Competition Act and the said
Appellate Tribunal is headed by a former Judge of the Supreme Court
of India. It, therefore, appears to us that the decision of the Apex
Court in Calcutta Discount Co. Ltd. (supra), in which the challenge
was to the show cause notice issued by an Income Tax Officer for re-
assessment, cannot be UPA 23 wp358-10 applied to a case where a
show cause notice has been issued by the Competition Commissioner
under the Competition Act. Against the decision of the Commission
an appeal would lie before the Appellate Tribunal headed by a sitting
or a former Judge of the Supreme Court of India or a Chief Justice of
a High Court as provided in Section 53D of the Competition Act. Sub-
section (2) of Section 53D of the Competition Act also provides that
Members of the Appellate Tribunal shall be persons of ability,
integrity and standing having special knowledge of and professional
experience of at least twenty-five years in competition matters,
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including competition law and policy, international trade,
economics, business, commerce, law, finance, accountancy,
management, industry, public affairs, administration. As provided in
Section 53E of the Competition Act, the Chairperson and Members of
the Appellate Tribunal are appointed by the Central Government
from a panel of names recommended by a Selection Committee
consisting of the Chief Justice of India or his nominee as the
Chairperson, and the Secretary in the Ministry of Corporate Affairs
and the Secretary in the Ministry of Law and Justice as the Members
of the selection committee.
18. The contention that the Competition Commission has already pre-
judged the issue also cannot be accepted. Under sub- section (1) of
Section 26, the Commission directed an investigation by Director
General into the complaint of FICCI-Multiplex Owners’ Association.
Under sub-section (3) thereof, the Director General submitted a
report of his findings that there is contravention of Section 3(3) of the
Act and under sub-section (4), the Commission forwarded a copy of
the report to the petitioners. After consideration of the petitioners’
objections, the Commission has formed an opinion under UPA 24
wp358-10 sub-section (8) that further inquiry is called for. Hence all
that the Commission is doing is to hold an inquiry into such
contravention as reported by the Director General. All the authorities
including disciplinary authority in service matters initiate
departmental inquiries upon receiving preliminary inquiry report of
subordinate officer indicating misconduct having been committed,
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but once the inquiry is held by observing the applicable statutory
provisions and the principles of natural justice, the concerned
disciplinary authority takes a final decision in the matter in
accordance with law. Hence, mere issuance of a show cause notice
under Section 26(8)/ Section 27, like issuance of a charge-sheet in a
departmental inquiry, cannot be treated as pre-judging the issue,
merely because the petitioners had raised some of the legal
contentions in the replies to the notice issued by the Director General
of Investigation and thereafter also the Commission has issued show
cause notices. That can never mean that the Competition Commission
will not consider the petitioners’ objections against maintainability
of the proceedings.
19. Since we are inclined to dismiss the petitions only on the ground
that the petitions challenge show cause notices and that it is open to
the petitioners to raise all available contentions, including
preliminary objection against legality or otherwise of initiation of the
proceedings against the petitioners, we do not express any opinion
on merits of controversy between the parties and, therefore, we do
not think it fit to deal with those contentions on merits, as we do not
wish to express any opinion either way even on the merits of the
preliminary objections raised by the petitioners about jurisdiction of
the Tribunal to initiate the proceedings against the petitioners. All
contentions are kept open.”
Competition Commission of India v. Steel Authority of India
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Limited8.
35. The judgment deals extensively with the nature and
scope of the orders passed under Section 26 of the Competition
Act. The Supreme Court held that when information is received,
the Commission is expected to satisfy itself and express its opinion
that a prima facie case exists, from the record produced before it
and then pass a direction to the Director General to cause an
investigation to be made into the matter. Section 19 does not
suggest that any notice is required to be given to the informant,
affected party or any other person at that stage. Such parties
cannot claim the right to notice or hearing, but it will always be
open to the Commission to call any “such person” for rendering
assistance or to produce such records as the Commission may
consider appropriate.
35.1 In terms of Section 26(3) when the Director General
8
(2010) 10 SCC 744
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submits the report to the Commission, the Commission is duty
bound to issue notice to the affected parties to reply with regard
to the details of the information and the report submitted by the
Director General and thereafter permit the parties to submit
objections and suggestions to such documents.
35.2 Paragraphs 21 to 23 of the said judgment reads thus:
“21. The informant i.e. the person who wishes to complain to the
Commission constituted under Section 7 of the Act, would make
such information available in writing to the Commission. Of
course, such information could also be received from the Central
Government, the State Government, statutory authority or on its
own knowledge as provided under Section 19(1)(a) of the Act.
When such information is received, the Commission is expected
to satisfy itself and express its opinion that a prima facie case
exists, from the record produced before it and then to pass a
direction to the Director General to cause an investigation to be
made into the matter. This direction, normally, could be issued by
the Commission with or without assistance from other quarters
including experts of eminence. The provisions of Section 19 do
not suggest that any notice is required to be given to the
informant, affected party or any other person at that stage. Such
parties cannot claim the right to notice or hearing but it is always
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open to the Commission to call any “such person”, for rendering
assistance or produce such records, as the Commission may
consider appropriate.
22. The Commission, wherever, is of the opinion that no prima
facie case exists justifying issuance of a direction under Section
26(1) of the Act, can close the case and send a copy of that order
to the Central Government, the State Government, statutory
authority or the parties concerned in terms of Section 26(2) of the
Act. It may be noticed that this course of action can be adopted by
the Commission in cases of receipt of reference from sources
other than of its own knowledge and without calling for the
report from the Director General.
23. In terms of Section 26(3), the Director General is supposed to
take up the investigation and submit the report in accordance
with law and within the time stated by the Commission in the
directive issued under Section 26(1). After the report is submitted,
there is a requirement and in fact specific duty on the Commission
to issue notice to the affected parties to reply with regard to the
details of the information and the report submitted by the
Director General and thereafter permit the parties to submit
objections and suggestions to such documents.”
35.3 It is further held that the direction under Section 26(1)
of the Competition Act, after formation of a prima facie opinion,
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is an administrative direction to one of its own wings and is
without entering upon any adjudicatory process. Paragraphs 37
to 39 of the said judgment, which are relevant, are extracted
hereunder:
“37. As already noticed, in exercise of its powers, the
Commission is expected to form its opinion as to the existence
of a prima facie case for contravention of certain provisions of
the Act and then pass a direction to the Director General to cause
an investigation into the matter. These proceedings are initiated
by the intimation or reference received by the Commission in
any of the manners specified under Section 19 of the Act. At the
very threshold, the Commission is to exercise its powers in
passing the direction for investigation; or where it finds that
there exists no prima facie case justifying passing of such a
direction to the Director General, it can close the matter and/or
pass such orders as it may deem fit and proper. In other words,
the order passed by the Commission under Section 26(2) is a final
order as it puts an end to the proceedings initiated upon
receiving the information in one of the specified modes. This
order has been specifically made appealable under Section 53-A
of the Act.
38. In contradistinction, the direction under Section 26(1) after
formation of a prima facie opinion is a direction simpliciter to
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cause an investigation into the matter. Issuance of such a
direction, at the face of it, is an administrative direction to one
of its own wings departmentally and is without entering upon
any adjudicatory process. It does not effectively determine any
right or obligation of the parties to the lis. Closure of the case
causes determination of rights and affects a party i.e. the
informant; resultantly, the said party has a right to appeal
against such closure of case under Section 26(2) of the Act. On
the other hand, mere direction for investigation to one of the
wings of the Commission is akin to a departmental proceeding
which does not entail civil consequences for any person,
particularly, in light of the strict confidentiality that is
expected to be maintained by the Commission in terms of
Section 57 of the Act and Regulation 35 of the Regulations.
39. Wherever, in the course of the proceedings before the
Commission, the Commission passes a direction or interim
order which is at the preliminary stage and of preparatory
nature without recording findings which will bind the parties
and where such order will only pave the way for final decision,
it would not make that direction as an order or decision which
affects the rights of the parties and therefore, is not
appealable.”
Amazon Seller Services Private Limited v. Competition Commission
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of India9
36. The Karnataka High Court held that the Order under
Section 26 of the Competition Act is an administrative direction,
and it does not provide issuance of any notice to any party before
or at the time of formation of an opinion by the Commission on
the basis of the information received by the Commission.
36.1 Paragraph 36 of the said judgment is extracted
hereunder:
” 36. Thus, from the above authorities, it is clear that:
An order under Section 26(1) of the Act passed by the
Commission is an ‘administrative direction’ to one of its wings
departmentally and without entering upon any adjudicatory
process; and Section 26(1) of the Act does not mention about
issuance of any notice to any party before or at the time of
formation of an opinion by the Commission on the basis of
information received by it.
WhatsApp LLC v. Competition Commission of India10
9
Judgment dated 23.07.2021 in W.A. No.562, 563/2021
10
2022 SCC OnLine Del 2582
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37. Paragraph 28 of the Delhi High Court, the Division Bench
outlined the issue, which is the overlapping jurisdiction of the CCI
and the Constitutional Courts and whether CCI should abstain
from exercising its jurisdiction to maintain comity between
decisions of different authorities on the same issue. It was held
that even if the issues considered by the CCI and TRAI are the
same, the approach of the authorities was vastly dissimilar, and
there exists no inviolable rule that the CCI would completely lack
jurisdiction in such a case. Parallel enquiries by two different
authorities in their respective spheres of adjudication are not
uncommon, and a slight overlap between the enquiries does not
mean that one must lead to ouster of the other.
37.1 Paragraphs 30 to 32 of the said judgment are extracted
hereunder:
“30. A reading of the aforesaid paragraphs of the Judgment indicates
that the sole issue therein was a conflict between the jurisdiction of
a sectoral regulator and the market regulator. The Supreme Court
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came to a finding that the matter pertained to the telecom sector,
which was specifically regulated by the TRAI Act. However, it noted
that the jurisdiction of TRAI would not oust that of CCI to deal with
violations of Competition Act and violations thereunder. Moreover,
Paragraph 100 of the Judgment states that in the case therein, the
dispute pertained to how Incumbent Dominant Operators (IDOs) had
not given Points of Interconnect (POIs) as per the license conditions,
and Reliance Jio Infocomm Ltd. (RJIL) had specifically approached
TRAI for the settlement of this dispute. TRAI, being the authority
that would mandate the adherence to licensing conditions, was,
therefore, deemed fit to be seized of the matter before the charge of
investigation could be given to the CCI.
31. It is the contention of the Appellants that since the underlying
issues arising before the Apex Court and this Court, and the
investigation that is sought to be conducted by the CCI are common,
this can potentially lead to conflicting opinions. This contention of
the Appellants is not acceptable. It is the case of the Appellants that
while the Apex Court is looking into whether the 2021 Policy is
violative of the right to privacy under Article 21 of the Constitution
of India or not, the investigation by CCI is confined to whether the
2021 Policy is in furtherance of the dominant position occupied by
WhatsApp and institutes anti-competitive practices. The sphere of
operation of both are vastly different. Neither this Court nor the
Supreme Court are analysing the 2021 Policy through the prism of
competition law. The Order dated 24.03.2021 rendered by the CCI
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also notes the same:
“13. In relation to the above mentioned contentions of WhatsApp, the
Commission is of the view that the judgments relied by WhatsApp have no
relevance to the issues arising in the present proceedings and its plea is
misplaced and erroneous. The judgment of the Hon’ble Supreme Court in
Bharti Airtel Case has no application to the facts of the present case as the
thrust of the said decision was to maintain ‘comity’ between the sectoral
regulator (i.e. TRAI, in the said case) and the market regulator (i.e. the CCI).
WhatsApp has failed to point out any proceedings on the subject matter which
a sectoral regulator is seized of. Needless to add, the Commission is examining
the policy update from the perspective of competition lens in ascertaining as
to whether such policy updates have any competition concerns which are in
violation of the provisions of Section 4 of the Act. Further, the Commission is
of the considered view that in a data driven ecosystem, the competition law
needs to examine whether the excessive data collection and the extent to which
such collected data is subsequently put to use or otherwise shared, have anti-
competitive implications, which require anti-trust scrutiny. The reliance of
WhatsApp on Vinod Kumar Gupta and other cases is also misplaced as the
Commission has only observed that breach of the Information Technology Act
does not fall within its purview. However, in digital markets, unreasonable data
collection and sharing thereof, may grant competitive advantage to the
dominant players and may result in exploitative as well as exclusionary effects,
which is a subject matter of examination under competition law. It is trite to
mention that the provisions of the Act are in addition to and not in derogation
of the provisions of any other law, as declared under Section 62 of the Act.”
32. The observation of the learned Single Judge that certain issues that
the CCI is seized of “may substantially be in issue before the Supreme
Court and this Court” does not lead to a conclusion that the Supreme
Court or this Court are adjudicating upon the same issue. Contrary to
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what has been submitted by the Appellants, this observation cannot be
interpreted as a holding that the issues being considered by both the
authorities are the same. Even if the issues are the same, the approach
of the authorities is vastly dissimilar, and there exists no inviolable
rule that the CCI would completely lack jurisdiction in the instant
matter. Parallel inquiries by two different authorities in their
respective spheres of adjudication is not uncommon and a slight
overlap between the inquiries does not mean that one must lead to the
ouster of the other. Therefore, in the absence of any irreconcilable
repugnancy between the jurisdiction of both the authorities, i.e. CCI
and the Constitutional Courts, the CCI has the liberty to proceed ahead
with its investigation under Section 26(1) of the Act.”
Competition Commission of India v. Bharti Airtel Limited11
38. The Supreme Court again reiterated that the order
under Section 26(1) of the Competition Act is administrative in
nature. The Commission forms a prima facie opinion while
directing the Director General to carry out the investigation, and
the High Court would not be competent to adjudge the validity of
11
(2019) 2 SCC 521
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such an order on merit. Paragraph 121 of the judgment is
extracted hereunder:
“121. Once we hold that the order under Section 26(1) of the
Competition Act is administrative in nature and further that it
was merely a prima facie opinion directing the Director General
to carry the investigation, the High Court would not be competent
to adjudge the validity of such an order on merits. The
observations of the High Court giving findings on merits,
therefore, may not be appropriate.”
38.1 The Supreme Court further held that the TRAI has been
constituted for the orderly and healthy growth of the
telecommunication infrastructure, apart from the protection of
consumer interest. It is the duty of the TRAI to see the
achievement of the universal service, which should be of world-
standard quality and to ensure that the telecom services are
provided to the customers at a reasonable price. The TRAI is
required to ensure arrangements for the protection and
promotion of consumer interests and ensure fair competition.
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Specific functions which are assigned to TRAI, amongst others,
include 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.
38.2 In the aforesaid case, Reliance Jio Infocomm Limited (for
short, ‘RJIL’), a new entrant in the telecom sector, had raised a
grievance regarding whether the Incumbent Dominant Operators
(for short, ‘IDOs’) had not given Point of Interconnection (POIs) to
RJIL as per the licence conditions, resulting in non-compliance
and failure to ensure inter-se technical compatibility. The RJIL had
approached TRAI for the settlement of the aforesaid dispute,
which had arisen between service providers, i.e., RJIL and IDOs.
The TRAI was seized of the said dispute at that time, and the RJIL
also approached the CCI, alleging an anti-competitive
agreement/cartel having been formed by the IDOs (three major
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telecom operators – Airtel, Vodafone and Idea. The allegation was
that the IDOs had, through anti-competitive agreements/cartels,
limited the provision of services by delaying or denying POIs to
RJIL to block its entry into the market. The CCI took cognisance
of the said complaint (Information) and came to a prima facie
conclusion that a case for investigation was made out and directed
the Director General to cause an investigation in the case.
38.3 The Supreme Court held that the TRAI is an expert
regulatory body governing the telecom sector and the following
issues:
(a) Whether IDOs were under any obligation to provide POIs
during the test period?
(b) As per the letter dated June 21, 2016, from RJIL, when were IDOs
to commence provisioning of POIs to RJIL?
(c) Whether the demand for POIs made by RJIL was reasonable or
not?
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(d) Whether there was any delay/denial at the end of Vodafone in
the provisioning of POIs?
(e) Whether the POIs were to be provided ‘immediately’ and
during ‘test phase’?
(f) Whether IDOs have provided a sufficient number of POIs to RJIL
in conformity with the licence conditions?
These are to be decided by the TRAI in the first instance. These issues
involve jurisdictional aspects. Unless the TRAI finds fault with the IDOs on
the aforesaid aspects, the matter cannot be taken further, even if it is
assumed that the CCI would have the jurisdiction to deal with the
complaint/Information filed before it.
38.4 Paragraphs 103 to 105 of the said judgment are
extracted hereunder:
“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 aspects.
Unless TRAI finds fault with the IDOs on the aforesaid aspects,
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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 charges to be
realised for POIs that are to be provided to another service
provider. Even the consequences for breach of such obligations
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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
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
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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.”
38.5 The Supreme Court thus held that only when the TRAI
determined the jurisdictional facts against IDOs would the
question arise as to whether it was a result of any concerted
agreement with them. It would be at that stage that the 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’. The Supreme Court also held that the
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TRAI is a sectoral regulator that is better equipped to deal with
the aforesaid jurisdictional aspects.
38.6 The Supreme Court also held that the CCI is empowered
to deal with and decide the following three issues:
(a) where agreements are entered into by certain persons with a
view to cause an appreciable adverse effect on competition;
(b) where any enterprise or group of enterprises, which enjoys a
dominant position, abuses the said dominant position; and
(c) regulating the combination of enterprises through mergers or
amalgamations to ensure that such mergers or amalgamations do
not become anti-competitive or abuse the dominant position that
they can attain.
The jurisdiction of the CCI is to eliminate such practices which
have an adverse effect on competition, to promote and sustain
competition and to protect the interests of the consumers and
ensure freedom of trade, carried on by other participants in India.
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To this extent, the functions of the CCI are distinct from the
functions of TRAI under the TRAI Act.
38.7 The Supreme Court specifically held that it would be
within the jurisdiction of the CCI to find out whether IDOs were
acting in concert and colluding, thereby forming a cartel to block
or hinder entry of RJIL in the market in violation of Section 3(3)(b)
of the Competition Act. Whether there was an anti-competitive
agreement between the IDOs using the platform of COAI. The CCI
would be required to determine whether the conduct of the
parties was unilateral or collective action based on an
agreement. And such an exercise has to be undertaken by the CCI.
The Supreme Court further held that when the two statutes
operate in different fields and have different purposes, it cannot
be said that there is implied repeal of one by another. The
Competition Act is a special statute which deals with anti-
competition practices/agreements. It is further held that the
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TRAI is not at all equipped to deal with these issues. The TRAI
returns a finding that a particular activity was anti-competitive;
its powers would be limited to the action that can be taken under
the TRAI Act alone. It is only the CCI which is empowered to deal
with the same anti-competitive act from the lens of the
38.8 Paragraphs 109 to 113 are extracted hereunder:
“109. CCI is specifically entrusted with duties and functions, and
in the process empower as well, to deal with the aforesaid three
kinds of anti-competitive practices. The purpose is to eliminate
such practices which are an adverse effect on the competition, to
promote and sustain competition and to protect the interests of
consumers and ensure freedom of trade carried on by other
participants in India. To this extent, the function that is assigned
to CCI is distinct from the function of TRAI under the TRAI Act.
The learned counsel for the appellants are right in their
submission that CCI is supposed to find out as to whether the IDOs
were acting in concert and colluding, thereby forming a cartel,
with the intention to block or hinder entry of RJIL in the market
in violation of Section 3(3)(b) of the Competition Act. Also,
whether there was an anti-competitive agreement between the
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IDOs, using the platform of COAI. CCI, therefore, is to determine
whether the conduct of the parties was unilateral or it was a
collective action based on an agreement. Agreement between the
parties, if it was there, is pivotal to the issue. Such an exercise has
to be necessarily undertaken by CCI. In Haridas Exports³, this
Court held that where statutes operate in different fields and have
different purposes, it cannot be said that there is an implied
repeal of one by the other. The Competition Act is also a special
statute which deals with anti-competition. It is also to be borne in
mind that if the activity undertaken by some persons is anti-
competitive and offends Section 3 of the Competition Act, the
consequences thereof are provided in the Competition Act.
110. Section 27 empowers CCI to pass certain kinds of orders,
stipulated in the said provision, after inquiry into the agreements
for abuse of dominant position. The following kinds of orders can
be passed by CCI under this provision:
“27. Orders by Commission after inquiry into agreements or abuse of
dominant position. Where after inquiry the Commission finds that any
agreement referred to in Section 3 or action of an enterprise in a dominant
position, is in contravention of Section 3 or Section 4, as the case may be, it
may pass all or any of the following orders, namely-
(a) direct any enterprise or association of enterprises or person or
association of persons, as the case may be, involved in such agreement, or
abuse of dominant position, to discontinue and not to re-enter such
agreement or discontinue such abuse of dominant position, as the case
may be;
(b) impose such penalty, as it may deem fit which shall be not more than
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ten per cent of the average of the turnover for the last three preceding
financial years, upon each of such person or enterprises which are parties
to such agreements or abuse:
Provided that in case any agreement referred to in Section 3 has been
entered into by a cartel, the Commission may impose upon each producer,
seller, distributor, trader or service provider included in that cartel, a
penalty of up to three times of its profit for each year of the continuance
of such agreement or ten per cent of its turnover for each year of the
continuance of such agreement, whichever is higher.
(c) repealed;
(d) direct that the agreements shall stand modified to the extent and in
the manner as may be specified in the order by the Commission;
(e) direct the enterprises concerned to abide by such other orders as the
Commission may pass and comply with the directions, including payment
of costs, if any; repealed;
(g) pass such other order or issue such directions as it may deem fit.
Provided that while passing orders under this section, if the Commission
comes to a finding, that an enterprise in contravention to Section 3 or
Section 4 of the Act is a member of a group as defined in clause (b) of the
Explanation to Section 5 of the Act, and other members of such a group are
also responsible for, or have contributed to, such a contravention, then it
may pass orders, under this section, against such members of the group.”
111. Moreover, it is within the exclusive domain of CCI to find out as
to whether a particular agreement ment will have appreciable
adverse effect on competition within the relevant market in India.
For this purpose, CCI is to take into consideration the provisions
contained in the Competition Act, including Section 29 thereof.
Sections 45 and 46 also authorise CCI to impose penalties in certain
situations.
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112. Obviously, all the aforesaid functions not only come within the
domain of CCI, TRAI is not at all equipped to deal with the same. Even
if TRAI also returns a finding that a particular activity was anti-
competitive, its powers would be limited to the action that can be
taken under the TRAI Act alone. It is only CCI which is empowered
to deal with the same anti-competitive act from the lens of the
Competition Act. If such activities offend the provisions of the
Competition Act as well, the consequences under that Act would also
follow. Therefore, the contention of the IDOs that the jurisdiction of
CCI stands totally ousted cannot be accepted. Insofar as the nuanced
exercise from the standpoint of the Competition Act is concerned,
CCI is the experienced body in conducting competition analysis.
Further, CCI is more likely to opt for structural remedies which
would lead the sector to evolve a point where sufficient new entry
is induced thereby promoting genuine competition. This specific
and important role assigned to CCI cannot be completely wished
away and the “comity” between the sectoral regulator (i.e. TRAI) and
the market regulator (i.e. CCI) is to be maintained.
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 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
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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 is construing the
two Acts would take care of Section 60 of the Competition Act as
well.”
MRF Limited rep. by its Company Secretary Mr Ravi Mannath v.
Ministry of Corporate Affairs (MCA) rep by Secretary to
Government of India12
39. The Madras High Court held that the power of the CCI to
go into the merits of the Information is within its exclusive
domain as the original adjudicating authority, and the writ Court
is not expected to interfere at the preliminary stage. The CCI,
being a fact-finding authority, shall be left free to find out the
truth of the allegations after conducting a proper inquiry. The
order directing an investigation would not cause any prejudice to
the parties, inasmuch as at this stage, the rights of the parties are
12
2022 SCC OnLine Mad 50
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not affected till the dispute is finally determined. The CCI owes a
public duty to protect the interests of consumers when parties
have formed a cartel to increase the price.
39.1 Paragraphs 19 to 21 are extracted hereunder:
“19. Firstly, the power of the Competition Commission of India (CCI)
to go into the merits of the allegations in the reference as well as the
information is within its domain as the original adjudicating
authority, with which the writ Court is not expected to interfere at
the preliminary stage, because the CCI being the fact finding
authority shall be left free to find out the truth of the allegations
after conducting a proper inquiry. Therefore, the interference at the
stage of investigation would certainly amount to usurping the
original jurisdiction of such authority, unless the interference is so
warranted for want of jurisdiction.
20. Secondly, the impugned order directing a mere investigation will
not cause any prejudice to the parties, as their rights are not affected
or finally determined in the said order.
21. Thirdly, the Competition Commission of India owes a public duty
to protect the interest of the consumers, more particularly, when
there was a serious allegation that the writ petitioner and the
supporting parties forming a cartel, increase the prices of tyres
whenever the price of natural rubber goes up, but when there is a
corresponding reduction in the price of rubber, they did not reduce
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the prices of tyres.”
39.2 It is further held that the order of investigation does not
attract any civil consequences, inasmuch as it does not finally
determine the issue raised against the parties. Paragraph 50 is
extracted hereunder:
50. A close and careful reading of the proviso to Section 27 supports
the arguments of the respondents 2 & 3 that in case any agreement
referred to in section 3 has been entered into by a cartel, the
Commission may impose upon each producer, seller, distributor,
trader or service provider included in that cartel, a penalty of up
to three times of its profit for each year of the continuance of such
agreement or ten percent. of its turnover for each year of the
continuance of such agreement, whichever is higher. Therefore,
the principles of res judicata may not apply, inasmuch as the
expression ‘for each year of the continuance of such agreement’,
the CCI is empowered to investigate the complaint of cartelization,
as it concerns with each year. Moreover, if the CCI taking up the
complaint for the year 2008, finding want of acceptable evidence,
dismissed the complaint for the year 2008, it does not mean that
the same CCI is precluded from entertaining a fresh complaint for
the next year against the same producer or distributor, trader, etc.,
by virtue of Section 27. When the Act permits the CCI to initiate
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action on the complaint of cartelization independently for each
year, the argument of the appellant on the principles of res judicata
cannot be accepted. This issue is also answered against the
appellant, accordingly.”
Samir Agrawal v. Competition Commission of India (CAB
Aggregators case)13
40. The Supreme Court held that under the provisions of the
Competition Act and the 2009 Regulations, “any person” may
provide information to the CCI, which may then act upon it in
accordance with the provisions of the Act. In this regard, the
definition of “person” in Section 2(l) of the Competition Act is an
inclusive definition and is extremely wide, which would include
individuals of all kinds and every artificial juridical person. The
proceedings under the Competition Act are proceedings in rem
which affect the public interest. The CCI may inquire into any
alleged contravention of the provisions of the Act on its own
13
(2021) 3 SCC 136
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motion, as provided under Section 19(1) of the Competition
Act. Section 45 of the Act provides deterrence by providing
information to the CCI mala fide or recklessly false statements and
omissions of material facts are punishable with a penalty.
40.1 Paragraphs 14 to 18 of the said judgment is extracted
hereunder:
“14. A reading of the provisions of the Act and the 2009
Regulations would show that “any person” may provide
information to CCI, which may then act upon it in accordance
with the provisions of the Act. In this regard, the definition of
“person” in Section 2(1) of the Act, set out hereinabove, is an
inclusive one and is extremely wide, including individuals of all
kinds and every artificial juridical person. This may be contrasted
with the definition of “consumer” in Section 2(f) of the Act, which
makes it clear that only persons who buy goods for consideration,
or hire or avail of services for a consideration. are recognised as
consumers.
15. A look at Section 19(1) of the Act would show that the Act
originally provided for the “receipt of a complaint from any
person, consumer or their association, or trade association. This
expression was then substituted with the expression “receipt of
any information in such manner and” by the 2007 Amendment.
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This substitution is not without significance. Whereas, a
complaint could be filed only from a person who was aggrieved by
a particular action, information may be received from any person,
obviously whether such person is or is not personally affected.
This is for the reason that the proceedings under the Act are
proceedings in rem which affect the public interest. That CCI may
inquire into any alleged contravention of the provisions of the Act
on its own motion, is also laid down in Section 19(1) of the Act.
Further, even while exercising suo motu powers, CCI may receive
information from any person and not merely from a person who
is aggrieved by the conduct that is alleged to have occurred. This
also follows from a reading of Section 35 of the Act, in which the
earlier expression “complainant or defendant has been
substituted by the expression, “person or an enterprise”, setting
out that the informant may appear either in person, or through
one or more agents, before CCI to present the information that he
has gathered.
16. Section 45 of the Act is a deterrent against persons who
provide information to CCI, mala fide or recklessly, inasmuch as
false statements and omissions of material facts are punishable
with a penalty which may extend to the hefty amount of rupees
one crore, with CCI being empowered to pass other such orders as
it deems fit. This, and the judicious use of heavy costs being
imposed when the information supplied is either frivolous or
mala fide, can keep in check what is described as the growing
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tendency of persons being “set up” by rivals in the trade.
17. The 2009 Regulations also point in the same direction
inasmuch as Regulation 10, which has been set out hereinabove,
does not require the informant to state how he is personally
aggrieved by the contravention of the Act, but only requires a
statement of facts and details of the alleged contravention to be
set out in the information filed. Also, Regulation 25 shows that
public interest must be foremost in the consideration of CCI
when an application is made to it in writing that a person or
enterprise has substantial interest in the outcome of the
proceedings, and such person may therefore be allowed to take
part in the proceedings. What is also extremely important is
Regulation 35, by which CCI must maintain confidentiality of the
identity of an informant on a request made to it in writing, so
that such informant be free from harassment by persons
involved in contravening the Act.
18. This being the case, it is difficult to agree with the impugned
judgment of NCLAT in its narrow construction of Section 19 of
the Act, which therefore stands set aside.”
All India Digital Cable Federation, represented by its Secretary
General v. Telecom Regulatory Authority of India, represented by
its Secretary14
14
2021 SCC OnLine Ker 7162
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41. The Single Judge of this Court considered the validity of
the Telecommunication (Broadcasting and Cable) Services
Register of Interconnection Agreements and all such Other
Matters Regulations, 2019 issued by the Telecom Regulatory
Authority of India. Under Section 11(1)(b)(vii) of the TRAI Act, the
TRAI is required to maintain a register of interconnection
agreements and of all such other matters as may be provided in
the Regulations. The TRAI’s access to information and regulation
2005 have been framed by the TRAI, which provides that a service
provider furnishing any Information to the authority under the
TRAI may make or request in writing to keep that information
confidential and in which case, it shall furnish a non-confidential
summary of the portions sought to be kept confidential. However,
the TRAI, if it is of the opinion that it is necessary or expedient to
disclose that information in public interest, may reject the request
of the service provider after informing him in writing of the
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reasons for doing so and giving him an opportunity to make a
representation against the same.
41.1 It is further provided in Regulation 6 that the
information covered regarding any of the following categories
shall be exempt from disclosure:
(i) trade and commercial secrets and information protected by
law;
(ii) Commercially and financially sensitive information, the
disclosure of which is likely to cause unfair gain or unfair loss to
the service provider, or to compromise,
in the placement of the channel in the Electronic Program Guide.
41.2 The learned Single Judge held that the requirement in
the Regulation that all placement and marketing agreements have
to be reported to the regulator is not a decision which could have
been taken without considering and addressing the objections of
the MSOs on this point. The power of the TRAI to form an opinion
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that it is necessary or expedient to disclose the information of
public interest, even in respect of commercially and financially
sensitive information, is clearly a total discretion of the authority,
and such discretion is not guided by any criteria or guidelines.
41.3 As the Court found that no proper consultation and
consideration were given to the objections of MSOs, the
Regulation, so far as the required disclosure of the placement
agreements bilaterally entered into between the broadcasters and
the distributors was unsustainable. Paragraphs 54 to 58 are
extracted hereunder:
“54. It is admitted that the placement of the channels in the
Electronic Program Guide is now fully regulated and channels are to
be placed genre wise and language wise as provided by the TRAI.
Therefore, even if it is admitted that a discount given by a
broadcaster to the distributor for placement of a channel would
have a bearing on the rate at which a particular channel is carried
in the network, the requirement by the impugned Regulations that
all placement and marketing agreements also have to be reported to
the regulator is not a decision which could have been taken quite so
lightly without considering and addressing the objections of the
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MSOs on the point. Apart from relying on the access to Information
Regulations 2005 which empowers the TRAI to decide on the nature
of the information that is to be disclosed to the public, no
satisfactory answer is forthcoming with regard to the contention of
the petitioners of the confidentiality of their commercial
information. On the other hand, it is contended that all
placements/marketing/promotional activities and incentive and
claims for placing a channel in a particular slab forms part of the
Reference Interconnect Offer and are therefore not confidential
information. It is stated that the RIO being non-confidential in
nature, all agreements entered into with reference to the said RIO
are also non-confidential as they are based on the RIO published by
the broadcaster/distributor on their website and is available in their
portal. This, to my mind, is an apparent contradiction which vitiates
the decision of the authority.
55. Further, though it is contended that all trade and commercial
secrets and information protected by law and commercially and
financially sensitive information, the disclosure of which is likely to
cause unfair gain or unfair loss to the service provider or to
compromise his competitive position is exempt from disclosure, it is
not clear as to what the criteria are to decide what information that
is so exempt from disclosure. Further, the power of the TRAI under
the Access to Information Regulations also seems to be an absolute
power, in as much as, once the TRAI forms an opinion that it is
necessary or expedient to disclose the information in public
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interest, then, the order passed on the representation filed by the
service provider would be final. What, therefore, follows is that the
protection given by the Regulations from disclosure of commercially
and financially sensitive information is clearly at the total discretion
of the authority and the pleadings placed on record would show that
such discretion is not guided by any specific criteria or guidelines.
56. I also find that the authority has proceeded on the specific
premise that placement agreements are a part of interconnection
and are entered into under the RIO and therefore no further
consideration is required for bringing such placement agreements
within the scope of the Regulations with regard to maintenance of
Registers. This reasoning, according to me, is completely untenable
in view of the fact that specific issue is still pending consideration.
Therefore, even if it is accepted that the power of the TRAI to issue
Regulations is not limited to regulating inter-connection, the
exercise of the power should be strictly in accordance with the
statute. When the statute specifically provides for transparency in
the framing of the Regulations, the specific issues were required to
be put to consultation and the objections raised require a proper
consideration before any Regulations can be effected.
57. Having considered the consultation process supporting the
impugned regulations at considerable depth. I am of the considered
view that apart from stating that certain broadcasters contended
that DPOs are arm-twisting them to enter into exploitative
contracts, no proper consideration of the contention of the different
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stake holders has been undertaken by the authority. The very
question whether placement agreements are part of inter-
connection being still at large, the reasoning of the respondent that
placement agreements being agreements subject to the RIO are
automatically required to be registered cannot be accepted.
58. In the above view of the matter, I am of the opinion that the
impugned Regulations, in so far as they require a disclosure of the
placement agreements bilaterally entered into between the
broadcasters and the distributors are unsustainable. The challenge,
therefore, must succeed to that extent. The impugned regulations,
to the extent that they require registration of placement
agreements/Marketing are, therefore, set aside. There will be no
order as to costs.”
Telefonaktiebolaget Lm Ericsson (Publ) v. Competiton Commisison
of India15
42 The Division Bench of the Delhi High Court, after
considering the provisions of the Patent Act 1970 and the
Competition Act 2002, held that the Competition Act is general
legislation pertaining to anti-competitive agreements and abuse
of dominant position generally. It was further held that Chapter
15
Judgment dated 13.07.2023 in LPA 24/2016 and conn. cases
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XVI of the Patents Act is a complete code in itself on all issues
pertaining to unreasonable conditions in the agreements of
licensing of patents, abuse of status as patentee, inquiry in respect
thereof and relief that can be granted.
42.1 Paragraphs 50 to 55 of the said decision are extracted
here under:
“50. In our view, the Competition Act is a general legislation
pertaining to anti-competitive agreements and abuse of dominant
position generally. The inclusion of Section 84(6)(iv)¹¹ in the Patents
Act by way of an amendment after the Competition Act was passed
with Section 3(5)(i)(b)2 is particularly instructive of the above
legislative intent as regards anti-competitive agreements.
51. For deciding an application for compulsory licensing, the
Controller is empowered by the Patents Act to consider the
reasonability of conditions imposed in a license agreement. The CCI
is empowered under the Competition Act to examine anti-
competitive agreements and abuse of dominant position. However,
the Competition Act makes provision for reasonable conditions
being imposed in an agreement concerning exercise of rights under
the Patents Act. Since such reasonable conditions are exempted
from examination under section 3(5)(i)(b) of the Competition Act, it
is indicative of the legislature’s intendment as to the exclusive
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domain of the Patents Act regarding reasonable conditions. Similar,
in our view, is the situation with the language of Section 83(f) of the
Patents Act as compared with that of Section 4 of the Competition
Act.
52. In our opinion, Chapter XVI of the Patents Act is a complete code
in itself on all issues pertaining to unreasonable conditions in
agreements of licensing of patents, abuse of status as a patentee,
inquiry in respect thereof and relief that is to be granted therefor.
53. In reconciling the two statutes, the subject matter that is in focus
is not merely anti-competitive agreements and abuse of dominant
position, which both the Patents Act (in Chapter XVI) and the
Competition Act (in Sections 3 and 4) deal with. The subject matter
that is relevant for this assessment is anti-competitive agreements
and abuse of dominant position by a patentee in exercise of their
rights under the Patents Act.
54. On this issue, there is no scope of doubt beyond the pale of doubt
that the Patents Act is the special statute, and not the Competition
Act. It is also a fact that Chapter XVI of the Patents Act is a
subsequent legislation as compared to the Competition Act.
55. Therefore, when assessed by the maxim generalia specialibus non
derogant or by the maxim lex posterior derogat priori, the Patents Act
must prevail over the Competition Act on the issue of exercise of
rights by a patentee under the Patents Act. Even assessed by the
rigours of Ashoka Marketing (supra), which require the conflict to
be resolved by reference to the purpose and policy underlying the
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two enactments and the clear intendment conveyed by the language
of the relevant provisions therein, the Patents Act must necessarily
prevail over that of the Competition Act.”
Pharmacy Council of India v. Dr S K Toshniwal Educational Trusts 16
43. The Supreme Court held that the Pharmacy Act 1948 is
a special Act and is a complete code in itself in the field of
Pharmacy. The Pharmacy Act shall prevail over the All India
Council of Technical Education (AICTE) Act 1987. The Supreme
Court held that there is a well-known rule that the subsequent
general Act does not affect a prior special Act by implication. The
maxim “Generalia specialibus non derogant”, i.e., general provisions
will not abrogate the special provisions, is a well-known rule of
interpretation of the Statute. In order to determine whether a
statute is special or general one, the court has to take into
consideration the principal subject matter of the statute and the
particular perspective for the reason that for certain purposes an
16
(2021) 10 SCC 657
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Act may be general and for certain other purposes it may be
special and such a distinction cannot be blurred. It was also held
that the Pharmacy Council of India, being an expert in Pharmacy
and other related subjects, must be given the power to regulate
the field of Pharmacy.
43.1 Paragraphs 14 to 16 and 20 to 22 are extracted
hereunder:
“14. Applying the law laid down by this Court in the aforesaid
decisions and as observed hereinabove, the Pharmacy Act is a special
Act in the field of pharmacy and it is a complete code in itself in the
field of pharmacy, the Pharmacy Act shall prevail over the AICTE Act
which, as observed hereinabove, is a general statute dealing with
technical education/institutions. Therefore, the submission on
behalf of AICTE and/or educational institutions concerned that the
AICTE Act is a subsequent law and in the definition of “technical
education” it includes the “pharmacy” and therefore it can be said
to be an “implied repeal”, cannot be accepted. At his stage, it is
required to be noted that as such in the AICTE Act there is no specific
repeal of the Pharmacy Act, more particularly when, as observed
hereinabove, the Pharmacy Act is a special Act and the subsequent
enactment of the AICTE Act is general and therefore the Pharmacy
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Act being a special Act must prevail. Apart from that, with regard to
several aspects, there is no provision made in the AICTE Act which
are exclusively within the domain of PCI. Thus, it cannot be accepted
that there is “implied repeal” of the Pharmacy Act.
15. Now the next question which is required to be considered is
whether in the field of pharmacy, PCI would have the jurisdiction or
AICTE constituted under the AICTE Act which is held to be a general
law. The constitution and composition of Central Council under the
Pharmacy Council of India is as under:
“3. Constitution and composition of Central Council. The Central Government
shall, as soon as may be, constitute a Central Council consisting of the following
members, namely-
(a) six members, among whom there shall be at least one teacher of each of the
subjects, pharmaceutical chemistry, pharmacy, pharmacology and
pharmacognosy elected by the University Grants Commission from among
persons on the teaching staff of an Indian University affiliated thereto which
grants a degree or diploma in pharmacy; or a college
(b) six members, of whom at least four shall be persons possessing a degree or
diploma in, and practising pharmacy or pharmaceutical chemistry, nominated
by the Central Government;
(c) one member elected from amongst themselves by the members of the Medical
Council of India;
(d) the Director General, Health Services, ex officio or if he is unable to attend
any meeting, a person authorised by him in writing to do so;
(dd) the Drugs Controller, India, ex officio or if he is unable to attend any
meeting, a person authorised by him in writing to do so;
(e) the Director of the Central Drugs Laboratory, ex officio;
(f) a representative of the University Grants Commission and a representative
of the All India Council for Technical Education;
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(g) one member to represent each State elected from amongst themselves by
the members of each State Council, who shall be a registered pharmacist;
(h) one member to represent each State nominated by the State Government,
who shall be a registered pharmacist:”
Therefore, PCI consists of experts in the field of pharmacy and
related subjects connected with the education of pharmacy.
Therefore, under the statute, specialised persons in the field of
pharmaceutical, pharmacy, etc. shall be the members of PCI.
15.1. On the other hand, so far as AICTE is concerned, only one
member would be from the field of pharmacy and that too
representative of PCI. Under the circumstances, PCI is the body of
experts connected with the subject of pharmacy and related subjects
and therefore it will be in the larger interest and more particularly
in the interest of education of pharmacy that PCI shall alone have
the jurisdiction in the field of pharmacy, rather than AICTE.
16. The aforesaid question is also required to be viewed from
another angle. Both, PCI and AICTE are the creature of the statute.
Therefore, it is not at all healthy that the two regulators, both being
Central authorities, can be permitted to fight for supremacy. The
fight of supremacy between both the regulators is unhealthy for the
education sector as well as the institutions to permit two regulators
to function in the same field. Therefore, also and more particularly
when PCI consists of the experts in the field of pharmacy and other
related subjects, it is in the larger interest of the field of pharmacy
that PCI must be given the power to regulate in the field of
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pharmacy.
*** *** ***
20. In view of the above and for the reasons stated above, it is held
that in the field of pharmacy education and more particularly so far
as the recognition of degrees and diplomas of pharmacy education
is concerned, the Pharmacy Act, 1948 shall prevail. The norms and
regulations set by PCI and other specified authorities under the
Pharmacy Act would have to be followed by the institutions
concerned imparting education for degrees and diplomas in
pharmacy, including the norms and regulations with respect to
increase and/or decrease in intake capacity of the students and the
decisions of PCI shall only be followed by the institutions imparting
degrees and diplomas in pharmacy. The questions are answered
accordingly.
21. Now the next question which is required to be considered is with
respect to students already admitted pursuant to the orders passed
by this Court and the High Courts concerned. The conflict and the
dispute arose because despite refusal by PCI, AICTE increased the
intake capacity in the respective institutions, which were not
approved by PCI. By the interim orders, this Court and the
respective High Courts have directed to allow those students to
appear in the examinations and to register them as pharmacists.
Such interim orders are also made final. Therefore, the present
decision shall not affect those students admitted in the increased
intake capacity and/or pursuant to the interim orders passed by this
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Court and/or final judgments and orders passed by the respective
High Courts. PCI is therefore directed to give consequential benefit
of registration to such students. However, at the same time, all
pending applications for increase in intake capacity and/or for
recognition and/or approval of course/institutions in pharmacy
shall be as per the provisions of the Pharmacy Act, 1948 and the
regulations, if any, thereunder and as per the norms and regulations
fixed by PCI.
22. It is further directed that the institutions concerned who
increased their intake capacity as approved by AICTE and their
increase in intake capacity was not approved by PCI, shall apply
afresh for increase in intake capacity and/or evening shift for the
next academic year within a period of four weeks from today and
their cases for increase in intake capacity and/or applications for
recognition and/or applications for approval of the course or
evening shift shall be considered by PCI in accordance with the
Pharmacy Act, 1948 and rules and regulations framed therein and
the norms prescribed by PCI.”
All India Council for Technical Education v. Sri Prince Shivaji
Maratha Boarding House’s College of Architecture17
44. The Supreme Court considered the question as to
17
2019 SCC OnLine SC 1445
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whether the mandate of the Council of Architecture (CoA) is that
of the All India Council for Technical Education (AICTE) would
prevail on the question of granting approval and related to
matters of Institutions for conducting architectural education
courses, if there is any contradiction in the opinion of these two
bodies which are regulatory bodies constituted by the two
parliamentary legislations.
44.1 It was held that Section 10 of the AICTE Act mandates
AICTE to undertake the duties on the subjects specified therein.
AICTE exercises the power to regulate institutions imparting
architectural education to the strength of the definition of
technical education, which has been defined to mean programs of
education, research and training in architecture. The Supreme
Court held in respect of the provisions of Section 2 (g) of the 1987
Act, the definition of “technical education” would have to be given
such a construction and the word “architecture” should be treated
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to have been inapplicable in cases where the AICTE imports its
regulatory framework for institutions undertaking technical
education. Furthermore, so far as recognition of degrees and
diplomas of architecture education is concerned, the 1972 Act
prevails, and AICTE will not be entitled to impose any regulatory
measure in connection with the degrees and diplomas in the
subject of architecture. Norms and Regulations set by CoA and
other specified authorities under the 1972 Act would have to be
followed by an institution imparting education for degrees and
diplomas in architecture.
Discussion:
45. The ADNPL is a Multi-System Operator in the business of
providing digital cable services predominantly in Kerala. It also
operates in Karnataka, Andhra Pradesh, Telangana and Orissa for
more than 30 years. The SIPL, including its subsidiaries and group
companies, is a broadcaster of satellite-based TV channels in
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India, having multiple channels of different languages and various
genres. ADNPL receives broadcasting signals from SIPL for
monetary consideration, and they have had a business
relationship for more than 22-23 years. In terms of the successive
regulations selected by the TRAI, the broadcasters have to ensure
non-discrimination in pricing and the terms across different
MSOs/distributors. According to the ADNPL, the SIPL has
consistently flouted the principles of non-discrimination and has
offered better terms and prices to its competitors. There have
been several disputes between the parties before the TDSAT in the
past.
45.1 The present dispute has emanated post the introduction
the Telecommunication (Broadcasting and Cable) Services
Interconnection (Addressable Systems) Regulations 2017 (for
short, ‘Interconnection Regulations 2017’) and the
Telecommunication (Broadcasting and Cable) Services (Eighth)
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(Addressable Systems) Tariff Order 2017 (Collectively, New
Regulatory Framework). The SIPL has unsuccessfully challenged
the new regulatory framework up to the Supreme Court. The
Supreme Court, in its judgment in Star India Pvt Ltd v. Department
of Industrial Policy and Promotion18, [Civil Appeal Nos 7326- 7327
of 2018 and 7328 – 7329 of 2018], had upheld the validity of the new
regulatory framework.
45.2 The concept of Maximum Retail Price (MRP) for each
paid channel has been introduced in the new regulatory
framework. Interconnection Regulations 2017 mandate
broadcasters to deal with distributors on a non-discriminatory
basis. Regulation 3(2) of the Interconnection Regulations 2017 is
relevant, which is extracted hereunder:
“Clause 3. General obligations of broadcasters:
(1) ……
(2) Every broadcaster shall, within sixty days of receipt of written
request from a distributor of television channels for obtaining18
(2019) 2 SCC 104
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signals of television channel or within thirty days of signing of
interconnection agreement with the distributor, as the case may be,
provide, on non-discriminatory basis, the signals of television
channel to the distributor
Provided that imposition of any term or condition by the
broadcaster, which is unreasonable, shall be deemed to constitute a
denial of request:
Provided further that this sub-regulation shall not apply to a
distributor of television channels, who requests signals of a
particular television channel from a broadcaster while at the same
time demands carriage fee for distribution of that television channel
or who is in default of payment to the broadcaster and continues to
be in such default.”
45.3 As mentioned above, the Regulation further capped the
total discount (15% of MRP) and distribution fees (20% of MRP)
payable to distributors at 35% of MRP. Regulation 7(4) of the
Interconnection Regulations 2017 mandates broadcasters to offer
discounts based on fair, transparent, and non-discriminatory
terms to ensure a level playing field for distributors. Regulation
7(4) is extracted hereunder:
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“Clause 7. Publication of reference interconnection offer by
broadcaster for pay channels:
(1) …
(2) …
(3)….
(4) It shall be permissible to a broadcaster to offer discounts on the
maximum retail price of pay channel or bouquet of pay channels, to
distributors of television channels, not exceeding fifteen percent of
the maximum retail price:
Provided that the sum of distribution fee declared by a broadcaster
under sub-regulation (3) and discounts offered under this sub-
regulation in no case shall exceed thirty five percent of the
maximum retail price of pay channel or bouquet of pay channels, as
the case may be:
Provided further that offer of discounts, if any, to distributors of
television channels, shall be on the basis of fair, transparent and
non-discriminatory terms:
Provided also that the parameters of discounts shall be measurable
and computable.”
45.4 The Subscription License Agreement dated 17.12.2018
was executed between SIPL and ADNPL under the New Regulatory
Framework for signals of Channels with effect from 01.02.2019 for
a period of one year, which was extended till August 2021. It is
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stated that despite the provisions under the Interconnection
Regulations 2017 that no extra benefits should be offered to any
MSOs, the ADNPL started losing subscribers to KCCL as the SIPL
allegedly offered lower prices to KCCL, which was passed on to the
subscribers. It was said that up to a 50% discount was given to
KCCL instead of 15% as per the Interconnections Regulations 2017.
These additional discounts were offered in the form of promotion
and advertisement payments to KCCL.
Analysis:
46. The questions which are required to be considered in
these petitions are:
(I) Whether the TRAI Act is a special statute and the Competition
Act is said to be a general statute dealing with the anti-
competitive practices, or whether both these statutes are special
statutes for the subject matters of telecom and broadcasting
services as well as the anti-competitive practices?
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(II) Whether the CCI would not have the jurisdiction to entertain
the information of the ADNPL regarding the allegation of misuse
of the dominant position by the SIPL in the relevant market as
defined under Section 4 of the Competition Act?
(III) Whether the TRAI, being the sectoral regulation in respect of
the telecom and broadcasting services, should first examine the
allegation, and the ADNPL should have filed the complaint before
the TRAI/TDSAT and not have approached the CCI at the first
instance?
(IV) When the information contains the allegation of misuse of the
dominant position in the relevant market, as well as the violation
of the Telecommunication (Broadcasting and Cable) Services
Interconnection (Addressable Systems) Regulations 2017 (for
short, ‘Interconnection Regulations 2017’) and the
Telecommunication (Broadcasting and Cable) Services (Eighth)
(Addressable Systems) Tariff Order 2017 (Collectively, New
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Regulatory Framework), the CCI should direct the informant, the
ADNPL, to approach the TRAI and once the jurisdictional facts are
determined by the TRAI, then only the CCI should proceed with
the matter, if it is so required?
47. Mr Maninder Singh, learned Senior Counsel, has
submitted that primarily the allegations in the Information filed
by the ADNPL before the CCI are about the non-compliance of the
Interconnection Regulations 2017. The entire gravamen of the
ADNPL in its Information with the CCI is that the SIPL is
circumventing TRAI’s Regulation. The TRAI, being a specific
sectoral regulator, is assigned the powers, duties and
responsibilities to regulate broadcasting activities/services under
the provisions of the TRAI Act and the Regulations made
thereunder. Therefore, if the primary allegation is non-
compliance with the Interconnection Regulations 2017, the
sectoral regulator needs to first examine the issue to decide the
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jurisdictional fact and then if it is of the opinion that the issue
involves misuse of the dominant position in the relevant market,
it can refer to the said aspect for investigation and decision of the
CCI. The TRAI Act is a complete code in itself. It covers all aspects,
including competition, and the Competition Act is a general law
dealing with competition. The TRAI, being a special statute to
regulate broadcasting services, including anti-competitive
conduct, shall prevail over the general competition law under the
Issue No.I: Whether the TRAI Act is a special statute and the
Competition Act is said to be a general statute dealing with the anti-
competitive practices, or whether both these statutes are special
statutes for the subject matters of telecom and broadcasting services as
well as the anti-competitive practices?
48. The CCI has been enacted to ensure fair competition in
India by prohibiting trade practices which cause an appreciable
adverse effect on competition within markets in India and for the
establishment of an expert body in the form of the Competition
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Commission of India, having the duty to curb negative aspects of
competition. The Competition Act‘s salient provisions have
already been noted in the preceding paragraph; therefore, the
same is not reproduced herein. However, it is relevant to mention
here that Section 60 of the Competition Act provides for the
overriding effect of the provisions of the CCI Act in the event of
any inconsistency in any other law. The objective behind the
Competition Act has been stated in paragraph 21 in Excel Crop
Care Limited v. Competition Commission of India19 , and is
reproduced hereunder:
“21. In the instant case, we are concerned with the first type of
practices, namely, anti-competitive agreements. The Act, , which
prohibits anti-competitive agreements, has a laudable purpose
behind it. It is to ensure that there is a healthy competition in the
market, as it brings about various benefits for the public at large as
well as economy of the nation. In fact, the ultimate goal of
competition policy (or for that matter, even the consumer policies)
is to enhance consumer well-being. These policies are directed at19
(2017) 8 SCC 47
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ensuring that markets function effectively. Competition policy
towards the supply side of the market aims to ensure that
consumers have adequate and affordable choices. Another purpose
in curbing anti-competitive agreements is to ensure “level playing
field” for all market players that helps markets to be competitive. It
sets “rules of the game” that protect the competition process itself,
rather than competitors in the market. In this way, the pursuit of
fair and effective competition can contribute to improvements in
economic efficiency, economic growth and development of
consumer welfare. How these benefits accrue is explained in the
ASEAN Regional Guidelines on Competition Policy, in the following
manner:
“2.2. Main Objectives and Benefits of Competition Policy 2.2.1.1.
Economic efficiency: Economic efficiency refers to the effective use
and allocation of the economy’s resources. Competition tends to
bring about enhanced efficiency, in both a static and a dynamic
sense, by disciplining firms to produce at the 16 (2017) 8 SCC
47 lowest possible cost and pass these cost savings on to consumers,
and motivating firms to undertake research and development to
meet customer needs.
2.2.1.2. Economic growth and development:
Economic growth–the increase in the value of goods and services
produced by an economy–is a key indicator of economic
development. Economic development refers to a broader definition
of an economy’s well-being, including employment growth, literacy
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and mortality rates and other measures of quality of life.
Competition may bring about greater economic growth and
development through improvements in economic efficiency and the
reduction of wastage in the production of goods and services. The
market is therefore able to more rapidly reallocate resources,
improve productivity and attain a higher level of economic growth.
Over time, sustained economic growth tends to lead to an enhanced
quality of life and greater economic development.
2.2.1.3. Consumer Welfare: Competition policy contributes to
economic growth to the ultimate benefit of consumers, in terms of
better choice (new products), better quality and lower prices.
Consumer welfare protection may be required in order to redress a
perceived imbalance between the market power of consumers and
producers. The imbalance between consumers and producers may
stem from market failures such as information asymmetries, the
lack of bargaining position towards producers and high transaction
costs. Competition policy may serve as a complement to consumer
protection policies to address such market failures.”
49. The CCI is entrusted with duties, powers and functions
to deal with three kinds of anti-competitive practices and to
eliminate such practices which are having adverse effect on the
competition, for which the CCI has been given ample power in this
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regard.
50. Thus, this Court is of the considered view that the CCI is
a special Act to inquire into any allegations regarding the three
kinds of anti-competitive practices, including misuse of the
dominant position by a market player in the relevant market. The
relevant market has been defined in both its product and
geographic dimensions. The objective is to identify the
competitors that can constrain those undertakings’ behaviour
and prevent them from behaving independently of effective
competitive pressure. Thus, it would not be proper to say that the
Competition Act is general, but it is a special Act which deals with
anti-competitive practices as defined under the Act itself. The
CCI is a sectoral regulator, so far as it relates to the curbing of anti-
competitive practices in India is concerned.
51. The TRAI Act has been enacted to bring the quality of
telecom services to world standards, to provide a wide range of
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services to meet the consumers’ demand at a reasonable price, and
to ensure the participation of companies registered in India as
well as value added telecom services and making
arrangements/provisions for protection and promotion of
consumer interest and ensuring fair competition. To protect the
interests of service providers and consumers of the telecom
sector, to ensure technical compatibility and effective inter-
relationship between different service providers and to ensure
compliance with license conditions by all the service providers, a
sectoral regulator, i.e., TRAI, has been constituted under the TRAI
Act.
51.1 TRAI performs a recommendatory/advisory and
regulatory body discharging the functions envisaged under sub-
section (1) of Section 11 of the said Act. TRAI, inter alia, is required
to ensure fair competition amongst the service providers,
including fixing the terms and conditions of inter-connection
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between the service providers and laying down the standards of
Quality of Service (QoS) to be provided by each service
provider. The TRAI, a sectoral regulator in the telecom sector,
has been constituted to ensure orderly and healthy growth of the
telecommunication infrastructure, apart from the protection of
consumer interests. This is evident from the statement of the
object and the reasons of the TRAI Act. Thus, the TRAI Act is
constituted as an expert regulatory body to govern the telecom
sector, and thus, TRAI is a special statute in the field of
telecommunication, and TRAI is a sectoral regulator.
52. Considering the above, this Court is of the view that both
the Competition Act and the TRAI Act are special legislation in
their respective field. There may be some overlapping while
discharging the functions by the CCI and the TRAI in respect of the
telecom market in India is concerned, but there is no provision
under the TRAI Act to deal with the three anti-competitive
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practices as mentioned above, including misuse of the dominant
position of a market player as defined under Section 4 of the
Competition Act.
Issue II: Whether the CCI would not have the jurisdiction to entertain the
information of the ADNPL regarding the allegation of misuse of the
dominant position by the SIPL in the relevant market as defined under
Section 4 of the Competition Act?
53 As discussed above, when the allegations are regarding
the misuse of the dominant position by the SIPL, the petitioner in
the relevant market, as defined under Section 4 of the
Competition Act, predominantly, it is the CCI which will have the
jurisdiction to determine the said issue of misuse of the dominant
position and not the TRAI. However, if there are allegations of
non-compliance with the license conditions or violation of the
Regulations framed by the TRAI, it would be the TRAI which shall
examine the said allegations and not the CCI. Both the authorities
operate in different and distinct fields, and some overlapping of
the jurisdiction will not oust the jurisdiction of one sectoral
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regulator at the expense of the other. The CCI, which is the
sectoral regulator for dealing with anti-competitive practices in
the relevant market and misuse of the dominant position, will
have the jurisdiction to deal with the said allegation and not the
TRAI. If there are allegations regarding violation of the terms of
the license conditions or the provisions of the Regulations framed
by the TRAI, the TRAI, being the sectoral regulator of the field,
would assume jurisdiction to deal with those allegations.
This Court, therefore, is of the view that there is no conflict insofar
as the jurisdiction of the two sectoral regulators is concerned.
Issue Nos III and IV
Whether the TRAI, being the sectoral regulation in respect of the telecom
and broadcasting services, should first examine the allegation, and the
ADNPL should have filed the complaint before the TRAI/TDSAT and not
have approached the CCI at the first instance?
When the information contains the allegation of misuse of the dominant
position in the relevant market, as well as the violation of the
Telecommunication (Broadcasting and Cable) Services Interconnection
(Addressable Systems) Regulations 2017 (for short, ‘Interconnection
Regulations 2017’) and the Telecommunication (Broadcasting and Cable)
Services (Eighth) (Addressable Systems) Tariff Order 2017 (Collectively,
New Regulatory Framework), the CCI should direct the informant, the
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ADNPL, to approach the TRAI and once the jurisdictional facts are
determined by the TRAI, then only the CCI should proceed with the
matter, if it is so required?
54. It is also important to mention here that the order
passed under Section 26 of the Competition Act does not have civil
consequences, and it is an order in rem. The petitioners will have
an opportunity to address their arguments before the CCI even
regarding its jurisdiction. This Court, therefore, at this stage of
the proceedings before the CCI, does not want to scuttle the
proceedings, and the CCI itself is competent to deal with the
jurisdictional issue as well.
Conclusion:
55. In view thereof, the present writ petitions, so far as the
Order dated 28.02.2022 passed by the Competition Commission of
India under Section 26 of the Competition Act is concerned, are
dismissed. However, the petitioners shall have the liberty to
address their arguments on jurisdiction before the CCI itself, and
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the CCI will decide the issue of jurisdiction at the first instance
before proceeding with the matter on merit.
Result:
Thus, the writ petitions are dismissed with the above
observation, however, without costs.
All Interlocutory Applications regarding interim matters
stand closed.
Sd/-D K SINGH
JUDGEjjj
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APPENDIX OF WP(C) 29767/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER DATED 28.02.2022 ISSUED
BY RESPONDENT NO. 1 IN CASE NO. 9 OF 2022.
Exhibit P2 A TRUE COPY OF INFORMATION ON BEHALF OF
RESPONDENT NO. 2 IN CASE NO. 9 OF 2022 BEFORE THE
CCI.
Exhibit P3 A TRUE COPY OF THE ORDER DATED 01.09.2022 PASSED
BY THE HON’BLE NCLAT IN COMPETITION APPEAL (AT)
NO. 12 OF 2022.
Exhibit P4 A TRUE COPY OF THE NOTIFICATION NO. 39 BEARING
ORDER NO. SO 44(E) DATED 09.01.2004.
Exhibit P4 A A LEGIBLE TYPED COPY OF THE EXT. P4 NOTIFICATION
NO. 39 BEARING ORDER NO. SO 44(E) DATED
09.01.2004.
Exhibit P5 A TRUE COPY OF THE TELECOMMUNICATION
(BROADCASTING AND CABLE) SERVICES INTERCONNECTION
(ADDRESSABLE SYSTEMS) REGULATIONS, 2017 AND THE
EXPLANATORY MEMORANDA THERETO ISSUED BY TRAI.
Exhibit P6 A TRUE COPY OF THE TRAI CONSULTATION PAPER TITLED
“ISSUES RELATED TO NEW REGULATORY FRAMEWORK FOR
BROADCASTING AND CABLE SERVICES” DATED
07.05.2022. .
Exhibit P7 A TRUE COPY OF THE AUTHORIZATIONS ISSUED BY THE
PETITIONER COMPANY AUTHORIZING SHRI. BIJU K.S. TO
REPRESENT THE PETITIONER FOR THE PURPOSE OF THIS
WRIT PETITION.
Exhibit P8 A TRUE COPY OF THE REPLY AFFIDAVIT SERVED ON THE
PETITIONER ON 09.05.2022 BY RESPONDENT NO. 1 IN
WRIT PETITION NO. 3860 OF 2022 BEFORE THE HON’BLE
BOMBAY HIGH COURT.
Exhibit P9 A TRUE COPY OF THE REPLY AFFIDAVIT DATED
04.06.2022 FILED BY RESPONDENT NO. 2 IN WRIT
PETITION NO. 3860 OF 2022 BEFORE THE HON’BLE
WP(C) NOs. 29766, 29767
and 29768 OF 2022 129
2025:KER:36755
BOMBAY HIGH COURT.
Exhibit P10 A TRUE COPY OF THE REJOINDER DATED 03.06.2022
FILED BY THE PETITIONER IN RESPONSE TO EXT. P8.
Exhibit P11 A TRUE COPY OF THE REJOINDER DATED 24.06.2022
FILED BY THE PETITIONER IN RESPONSE TO EXT. P9.
Exhibit P12 A TRUE COPY OF THE ORDER DATED 06.04.2022 PASSED
BY THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3860 OF 2022.
Exhibit P13 A TRUE COPY OF THE ORDER DATED 08.06.2022 PASSED
BY THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3860 OF 2022.
Exhibit P14 A TRUE COPY OF THE ORDER DATED 28.06.2022 PASSED
BY THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3860 OF 2022.
Exhibit P15 A TRUE COPY OF THE ORDER DATED 10.08.2022 PASSED
BY THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3860 OF 2022.
Exhibit P16 A TRUE COPY OF THE ORDER DATED 19.08.2022 PASSED
BY THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3860 OF 2022.
Exhibit P17 A TRUE COPY OF THE NOTICE DATED 11.04.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER.
Exhibit P18 A TRUE COPY OF THE NOTICE DATED 22.04.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER.
Exhibit P19 A TRUE COPY OF THE NOTICE DATED 11.05.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER.
Exhibit P20 A TRUE COPY OF THE NOTICE DATED 19.05.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER.
Exhibit P21 A TRUE COPY OF THE NOTICE DATED 07.07.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER.
Exhibit P22 A TRUE COPY OF THE SUMMONS DATED 05.09.2022
ISSUED BY THE RESPONDENT NO. 5
WP(C) NOs. 29766, 29767
and 29768 OF 2022 130
2025:KER:36755
Exhibit P23 A TRUE COPY OF THE LETTER DATED 08.09.2022 ISSUED
BY THE PETITIONER.
Exhibit P24 A TRUE COPY OF THE INTERLOCUTORY APPLICATION
DATED 12.09.2022 FILED BY THE PETITIONER BEFORE
THE HON’BLE BOMBAY HIGH COURT.
Exhibit P25 A TRUE COPY OF THE JUDGMENT AND ORDER DATED
16.09.2022 PASSED BY THE HON’BLE BOMBAY HIGH
COURT IN WRIT PETITION NO. 3860 OF 2022.
Exhibit P26 A LIST OF DATES IN RELATION TO THE SUBSCRIPTION
LICENSE AGREEMENT AND VARIOUS INTERIM EXTENSIONS
GRANTED BY STAR INDIA PVT. LTD. TO ASIANET
DIGITAL NETWORK PVT. LTD.
Exhibit P27 A LIST OF DATES FOR CORRESPONDENCES BETWEEN STAR
INDIA PVT. LTD. AND ASIANET DIGITAL NETWORK PVT.
LTD.
Exhibit P28 A TRUE COPY OF THE JUDGMENT OF THE HON’BLE
SUPREME COURT IN CCI V. BHARTI AIRTEL LTD.
REPORTED IN (2019) 2 SCC 521.
Exhibit P29 A TRUE COPY OF THE JUDGMENT OF THE HON’BLE BOMBAY
HIGH COURT TITLED AS STAR INDIA PVT. LTD. V. CCI
REPORTED IN 2019 SCC ONLINE BOM 3038.
Exhibit P30 A TRUE COPY OF THE ORDER DATED 06.03.2020 ISSUED
BY THE HON’BLE SUPREME COURT IN SPECIAL LEAVE
PETITION NO. 3832 OF 2020.
Exhibit P31 A TRUE COPY OF THE ORDER DATED 22.05.2020 ISSUED
BY THE HON’BLE SUPREME COURT IN SPECIAL LEAVE
PETITION NO. 3832 OF 2020.
Exhibit P32 A TRUE COPY OF THE ORDER DATED 05.06.2020 ISSUED
BY THE HON’BLE SUPREME COURT IN SPECIAL LEAVE
PETITION NO. 3832 OF 2020.
Exhibit P33 A TABLE TITLED ‘LIST OF DATES OF PAST LITIGATION
BETWEEN THE PARTIES’ WITH RELEVANT PARTICULARS OF
ALL THE PETITIONS / REPLIES / TDSAT ORDERS IN
DISPUTES RELATING TO INTERCONNECTION RAISED BY
WP(C) NOs. 29766, 29767
and 29768 OF 2022 131
2025:KER:36755
RESPONDENT NO. 2.
Exhibit P34 A TRUE COPY OF JUDGMENT OF THE HON’BLE KERALA
HIGH COURT IN ALL INDIA DIGITAL CABLE FEDERATION
V. TELECOM REGULATORY AUTHORITY OF INDIA REPORTED
IN 2021 SCC ONLINE KER 7162.
Exhibit P35 A CHART TITLED ‘CHART DEPICTING INHERENT
CONTRADICTIONS IN THEIR OWN SUBSCRIBER CLAIMS BY
ASIANET DIGITAL NETWORK PVT. LTD. NUMBERS’ WHICH
SHOWS THE FLUCTUATING CLAIMS OF SUBSCRIBERS OF
RESPONDENT NO.2 VIS-À-VIS KCCL AS PER RESPONDENT
NO.2’S OWN PLEADINGS / LETTERS.
Exhibit P36 A TRUE COPY OF THE ORDER DATED 19.03.2018 ISSUED
BY THE HON’BLE HIGH COURT OF BOMBAY IN W.P. NO.
975 OF 2018.
Exhibit P37 A TRUE COPY OF THE ORDER DATED 01.04.2019 ISSUED
BY THE HON’BLE HIGH COURT OF BOMBAY IN W.P. NO.
975 OF 2018.
Exhibit P38 A TRUE COPY OF THE ORDER DATED 16.08.2018 ISSUED
BY THE HON’BLE BOMBAY HIGH COURT IN W.P.
9175/2018.
Exhibit P39 TRUE COPY OF THE TARIFF ORDER 2022 ISSUED BY TRAI
DATED 22/11/2022.
RESPONDENT EXHIBITS
Exhibit R2(a) A TRUE COPY OF THE DAILY ORDER PASSED BY THE 1ST
RESPONDENT ON 21.03.2023
Exhibit R2(b) A TRUE COPY OF THE EMAIL DATED 23.02.2023 SENT BY
THE 2ND RESPONDENT TO THE PETITIONER
Exhibit R2(c) A SAMPLE COPY OF THE INVOICE DOCUMENT NO.
M03300007054 DATED 10.01.2023 UNDER THE PREVIOUS
RIO AGREEMENT
Exhibit R2(d) A SAMPLE COPY OF THE INVOICE DOCUMENT.
NO.M03300007420 DATED 12.05.2023 UNDER THE NEW
RIO AGREEMENT ISSUED BY THE PETITIONER IN THE
WRIT PETITION
WP(C) NOs. 29766, 29767
and 29768 OF 2022 132
2025:KER:36755
Exhibit R2(e) A TRUE COPY OF THE DISCONNECTION NOTICE DATED
25.8.2023 ISSUED BY THE PETITIONER IN THE WRIT
PETITION TO THE 2ND RESPONDENT
Exhibit R2(f) TRUE COPY OF THE REPLY DATED 28.08.2023 ISSUED BY
THE 2ND RESPONDENT TO THE PETITIONER IN THE WRIT
PETITION
Exhibit R2-(g) THE ACCOUNTING STATEMENT OF ASIANET DIGITAL
NETWORK PRIVATE LIMITED & STAR INDIA PVT LTD AS
ON 24 AUGUST, 2023 (BILLING UP TO 31, JULY 2023
AND COLLECTIONS AS ON 23RD AUGUST 2023) PREPARED
BY STAR INDIA PVT LTD AS ATTACHED TO THE
DISCONNECTION NOTICE
Exhibit R2-(h) TRUE COPY OF THE TABLE PREPARED BY THE SECOND
RESPONDENT ELUCIDATING THE CALCULATIONS, BASIS
THE MARKET INTELLIGENCE, DEMONSTRATING THE
DISCRIMINATORY TREATMENT
PETITIONER EXHIBITS
Exhibit P42 True Copy of Telecommunication (Broadcasting and
Cable) Services (Eighth) (Addressable Systems)
Tariff (Third Amendment) order 2022 dated
22.11.2022
Exhibit P43 True Copy of Press release issued by the 2nd
respondent dated 22.11.2022
Exhibit P44 True Copy of list of Members of AIDCF
Exhibit P40 True copy of Interim Order dated 06.10.2022 in
WPC 29767/2022.
Exhibit P41 True Copy of Telecommunication (Broadcasting and
Cable) Services Interconnection (Addressable
Systems) (Fourth Amendment) Regulations 2022
dated 22.11.2022
Exhibit P45 True Copy of Memorandum of Writ petition filed by
AIDCF numbered as W.P.C 193/2023 before this
Honourable Court
WP(C) NOs. 29766, 29767
and 29768 OF 2022 133
2025:KER:36755
Exhibit P46 True Copy of Interim Order dated 06.01.2023 in
W.P.C 193/2023 of this Honourable Court
Exhibit P47 True Copy of direction issued by TRAI dated
19.01.2023
Exhibit P48 True Copy of Disconnection Notice dated
15.02.2023 Issued to the 2nd respondent by the
petitioner
Exhibit P49 True Copy of IA. No. 4 of 2023 dated 16.02.2023
in W.P.C 193 of 2023
Exhibit P50 True Copy of the SLA dated 24.02.2023
Exhibit P51 True Copy of Judgement Dated 04.04.2023 in W.P.C
193 of 2023
Exhibit P52 True Copy of Case Status of WA. No. 852 of 2023
Exhibit P53 True copy of the disconnection notice issued to
the 2nd respondent by the petitioner dated
25.08.2023
Exhibit P54 True copy of reply sent to the petitioner by the
2nd respondent dated 28.08.2023
Exhibit P55 True Copy of response dated 09.09.2023 issued by
the petitioner to the 2nd respondent
Exhibit P56 A TRUE COPY OF THE LETTER DATED 23.10.2023 ISSUED
BY THE PETITIONER TO RESPONDENT NO. 2
Exhibit P57 A TRUE COPY OF THE LETTER DATED 30.10.2023 ISSUED
BY THE RESPONDENT NO. 2 TO THE PETITIONER
Exhibit P58 A COPY OF THE ORDER DATED 24.11.2023 PASSED BY
THE LD. TDSAT
Exhibit P59 A COPY OF THE EMAIL DATED 08.11.2023 ALONG WITH
THE INVOICES ISSUED BY THE PETITIONER UPON THE
RESPONDENT NO. 2 AND THE STATEMENT OF ACCOUNTS OF
THE RESPONDENT NO. 2 .
Exhibit P60 A COPY OF THE EMAIL DATED 14.12.2023 OF THE
WP(C) NOs. 29766, 29767
and 29768 OF 2022 134
2025:KER:36755
PETITIONER
Exhibit P61 A COPY OF THE ORDER DATED 08.01.2024 PASSED BY
THE LD. DIVISION BENCH OF THIS HON’BLE COURT
Exhibit P62 A COPY OF THE EMAIL DATED 08.01.2024 OF THE
PETITIONER
Exhibit P63 A COPY OF THE EMAIL DATED 10.01.2024 OF
RESPONDENT NO. 2
Exhibit P64 A COPY OF THE STATEMENT OF ACCOUNTS OF THE
PETITIONER
RESPONDENT EXHIBITS
Exhibit R2(i) TRUE COPY OF THE TABLE PREPARED BY THE ADNPL
ELUCIDATING THE CALCULATIONS, BASIS THE MARKET
INTELLIGENCE, DEMONSTRATING THE DISCRIMINATORY
TREATMENT
Exhibit R2(j) TABLE PREPARED BY THE APPLICANT/ 2ND RESPONDENT
ELUCIDATING THE CALCULATIONS , BASIS THE MARKET
INTELLIGENCE, DEMONSTRATING DISCRIMINATORY
TREATMENT
PETITIONER EXHIBITS
Exhibit P65 A true copy of the letter dated 07.02.2024 issued
by the Writ Petitioner to Respondent No. 2 in the
Writ Petition
Exhibit P66 A Statement of Accounts as on 05.02.2024
RESPONDENT ANNEXURES
Annexure Annexure 1-2010 SCC OnLine Bom 1226
WP(C) NOs. 29766, 29767
and 29768 OF 2022 135
2025:KER:36755
APPENDIX OF WP(C) 29768/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER DATED 28.02.2022 ISSUED
BY RESPONDENT NO. 1 IN CASE NO. 9 OF 2022.
Exhibit P2 A TRUE COPY OF INFORMATION ON BEHALF OF
RESPONDENT NO. 2 IN CASE NO. 9 OF 2022 BEFORE THE
CCI.
Exhibit P3 A TRUE COPY OF THE ORDER DATED 01.09.2022 PASSED
BY THE HON’BLE NCLAT IN COMPETITION APPEAL (AT)
NO. 12 OF 2022.
Exhibit P4 A TRUE COPY OF THE NOTIFICATION NO. 39 BEARING
ORDER NO. SO 44(E) DATED 09.01.2004.
Exhibit P4 A A LEGIBLE TYPED COPY OF THE EXT. P4 NOTIFICATION
NO. 39 BEARING ORDER NO. SO 44(E) DATED
09.01.2004.
Exhibit P5 A TRUE COPY OF THE RELIEF EXHIBITS OF
TELECOMMUNICATION (BROADCASTING AND CABLE)
SERVICES INTERCONNECTION (ADDRESSABLE SYSTEMS)
REGULATIONS, 2017 AND THE EXPLANATORY MEMORANDA
THERETO ISSUED BY TRAI.
Exhibit P6 A TRUE COPY OF THE TRAI CONSULTATION PAPER TITLED
“ISSUES RELATED TO NEW REGULATORY FRAMEWORK FOR
BROADCASTING AND CABLE SERVICES” DATED
07.05.2022.
Exhibit P7 A TRUE COPY OF THE AUTHORIZATIONS ISSUED BY THE
PETITIONER COMPANY AUTHORIZING SHRI. BIJU K.S. TO
REPRESENT THE PETITIONER FOR THE PURPOSE OF THIS
WRIT PETITION.
Exhibit P8 A TRUE COPY OF THE REPLY AFFIDAVIT DATED
06.05.2022 BY RESPONDENT NO. 1 IN WRIT PETITION
NO. 3845 OF 2022 BEFORE THE HON’BLE BOMBAY HIGH
COURT.
Exhibit P9 A TRUE COPY OF THE REPLY AFFIDAVIT DATED
03.06.2022 FILED BY RESPONDENT NO. 2 IN WRIT
WP(C) NOs. 29766, 29767
and 29768 OF 2022 136
2025:KER:36755
PETITION NO. 3845 OF 2022 BEFORE THE HON’BLE
BOMBAY HIGH COURT.
Exhibit P10 A TRUE COPY OF THE REJOINDER DATED 03.06.2022
FILED BY THE PETITIONER IN RESPONSE TO EXT. P8.
Exhibit P11 A TRUE COPY OF THE REJOINDER DATED 24.06.2022
FILED BY THE PETITIONER IN RESPONSE TO EXT. P9.
Exhibit P12 A TRUE COPY OF THE ORDER DATED 06.04.2022 PASSED
BY THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3845 OF 2022.
Exhibit P13 A TRUE COPY OF THE ORDER DATED 08.06.2022 PASSED
BY THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3845 OF 2022.
Exhibit P14 A TRUE COPY OF THE ORDER DATED 28.06.2022 PASSED
BY THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3845 OF 2022.
Exhibit P15 A TRUE COPY OF THE ORDER DATED 10.08.2022 PASSED
BY THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3845 OF 2022.
Exhibit P16 A TRUE COPY OF THE ORDER DATED 19.08.2022 PASSED
BY THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3845 OF 2022.
Exhibit P17 A TRUE COPY OF THE NOTICE DATED 11.04.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER.
Exhibit P18 A TRUE COPY OF THE NOTICE DATED 26.04.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER.
Exhibit P19 A TRUE COPY OF THE NOTICE DATED 04.05.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER.
Exhibit P20 A TRUE COPY OF THE NOTICE DATED 07.07.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER.
Exhibit P21 A TRUE COPY OF THE JUDGMENT AND ORDER DATED
16.09.2022 PASSED BY THE HON’BLE BOMBAY HIGH
COURT IN WRIT PETITION NO. 3845 OF 2022.
WP(C) NOs. 29766, 29767
and 29768 OF 2022 137
2025:KER:36755
Exhibit P22 A LIST OF DATES IN RESPECT OF PETITIONER’S RIO
AGREEMENT ALONG WITH THE NOTICE OF ASSIGNMENT AND
ALL INTERIM EXTENSIONS PROVIDED THERETO.
Exhibit P23 LIST OF DATES COMPRISING THE BRIEF DETAILS OF ARE
ALL CORRESPONDENCES EXCHANGED BETWEEN SIPL AND
RESPONDENT NO. 2 DURING JUNE NOVEMBER 2021.
Exhibit P24 A TRUE COPY OF THE JUDGMENT OF THE HON’BLE
SUPREME COURT IN CCI V. BHARTI AIRTEL LTD.
REPORTED IN (2019) 2 SCC 521.
Exhibit P25 A TRUE COPY OF THE JUDGMENT OF THE HON’BLE BOMBAY
HIGH COURT TITLED AS STAR INDIA PVT. LTD. V. CCI
REPORTED IN 2019 SCC ONLINE BOM 3038.
Exhibit P26 A TRUE COPY OF THE ORDER DATED 06.03.2020 ISSUED
BY THE HONBLE SUPREME COURT IN SPECIAL LEAVE
PETITION NO. 3832 OF 2020.
Exhibit P27 A TRUE COPY OF THE ORDER DATED 22.05.2020 ISSUED
BY THE HON’BLE SUPREME COURT IN SPECIAL LEAVE
PETITION NO. 3832 OF 2020.
Exhibit P28 A TRUE COPY OF THE ORDER DATED 05.06.2020 ISSUED
BY THE HON’BLE SUPREME COURT IN SPECIAL LEAVE
PETITION NO. 3832 OF 2020.
Exhibit P29 A TRUE COPY OF JUDGMENT OF THE HON’BLE KERALA
HIGH COURT IN ALL INDIA DIGITAL CABLE FEDERATION
V. TELECOM REGULATORY AUTHORITY OF INDIA REPORTED
IN 2021 SCC ONLINE KER 7162.
Exhibit P30 A TRUE COPY OF THE ORDER DATED 19.03.2018 ISSUED
NY THE HON’BLE HIGH COURT OF BOMBAY IN W.P. NO.
975 OF 2018.
Exhibit P31 A TRUE COPY OF THE ORDER DATED 01.04.2019 ISSUED
BY THE HON’ BLE HIGH COURT OF BOMBAY IN W.P. NO.
975 OF 2018.
Exhibit P32 A TRUE COPY OF THE ORDER DATED 16.08.2018 ISSUED
BY THE HON’BLE BOMBAY HIGH COURT IN W.P.
9175/2018.
WP(C) NOs. 29766, 29767
and 29768 OF 2022 138
2025:KER:36755
Exhibit P33 TRUE COPY OF THE TARIFF ORDER 2022 ISSUED BY TRAI
DATED 22/11/2022.
RESPONDENT EXHIBITS
Exhibit R2(i) TRUE COPY OF THE TABLE PREPARED BY THE ADNPL
ELUCIDATING THE CALCULATIONS, BASIS THE MARKET
INTELLIGENCE, DEMONSTRATING THE DISCRIMINATORY
TREATMENT
WP(C) NOs. 29766, 29767
and 29768 OF 2022 139
2025:KER:36755
APPENDIX OF WP(C) 29766/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER DATED 28.02.2022 ISSUED
BY RESPONDENT NO. 1 IN CASE NO. 9 OF 2022.
Exhibit P2 A TRUE COPY OF INFORMATION ON BEHALF OF
RESPONDENT NO. 2 IN CASE NO. 9 OF 2022 BEFORE THE
CCI.
Exhibit P3 A TRUE COPY OF THE ORDER DATED 01.09.2022 PASSED
BY THE HON’BLE NCLAT IN COMPETITION APPEAL (AT)
NO. 12 OF 2022.
Exhibit P4 A TRUE COPY OF THE NOTIFICATION NO. 39 BEARING
ORDER NO. SO 44(E) DATED 09.01.2004.
Exhibit P4A LEGIBLE TYPED COPY OF EXHIBIT P4
Exhibit P5 A TRUE COPY OF RELEVANT PORTIONS OF THE
TELECOMMUNICATION (BROADCASTING AND CABLE)
SERVICES INTERCONNECTION (ADDRESSABLE SYSTEMS)
REGULATIONS, 2017 AND THE COMPLETE EXPLANATORY
MEMORANDA THERETO ISSUED BY TRAI.
Exhibit P6 A TRUE COPY OF THE CONSULTATION PAPER DATED
07.05.2022
Exhibit P7 A TRUE COPY OF THE AUTHORIZATION LETTER
AUTHORIZING SHRI. BIJU K.S. TO REPRESENT THE
PETITIONER FOR THE PURPOSE OF THIS WRIT PETITION
Exhibit P8 A TRUE COPY OF THE REPLY AFFIDAVIT FILED BY
RESPONDENT NO. 1 IN WRIT PETITION NO. 3755 OF
2022 BEFORE THE HON’BLE BOMBAY HIGH COURT.
Exhibit P9 A TRUE COPY OF THE REPLY AFFIDAVIT FILED BY
RESPONDENT NO. 2 IN WRIT PETITION NO. 3755 OF
2022 BEFORE THE HON’BLE BOMBAY HIGH COURT.
Exhibit P10 A TRUE COPY OF THE REJOINDER FILED BY THE
PETITIONER IN RESPONSE TO THE REPLY AFFIDAVIT
FILED BY RESPONDENT NO. 1 IN WRIT PETITION NO.
3755 OF 2022 BEFORE THE HON’BLE BOMBAY HIGH
WP(C) NOs. 29766, 29767
and 29768 OF 2022 140
2025:KER:36755
COURT.
Exhibit P11 A TRUE COPY OF THE REJOINDER FILED BY THE
PETITIONER IN RESPONSE TO THE REPLY AFFIDAVIT
FILED BY RESPONDENT NO. 2 IN WRIT PETITION NO.
3755 OF 2022 BEFORE THE HON’BLE BOMBAY HIGH
COURT.
Exhibit P12 A TRUE COPY OF THE ORDER DATED 06.04.2022 PASSED
BY THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3755 OF 2022.
Exhibit P13 TRUE COPY OF THE ORDER DATED 08.06.2022 PASSED BY
THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3755 OF 2022.
Exhibit P14 TRUE COPY OF THE ORDER DATED 28.06.2022 PASSED BY
THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3755 OF 2022.
Exhibit P15 TRUE COPY OF THE ORDER DATED 10.08.2022 PASSED BY
THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3755 OF 2022.
Exhibit P16 TRUE COPY OF THE ORDER DATED 19.08.2022 PASSED BY
THE HON’BLE BOMBAY HIGH COURT IN WRIT PETITION
NO. 3755 OF 2022.
Exhibit P17 TRUE COPY OF THE NOTICE DATED 11.04.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER
Exhibit P18 TRUE COPY OF THE NOTICE DATED 22.04.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER
Exhibit P19 TRUE COPY OF THE NOTICE DATED 11.05.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER
Exhibit P20 TRUE COPY OF THE NOTICE DATED 18.05.2022, ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER
Exhibit P21 TRUE COPY OF THE NOTICE 24.05.2022 ISSUED BY THE
RESPONDENT NO. 5 TO THE PETITIONER
Exhibit P22 TRUE COPY OF THE NOTICE DATED 07.07.2022 ISSUED
BY THE RESPONDENT NO. 5 TO THE PETITIONER
WP(C) NOs. 29766, 29767
and 29768 OF 2022 141
2025:KER:36755
Exhibit P23 A TRUE COPY OF THE JUDGMENT AND ORDER DATED
16.09.2022 PASSED BY THE HON’BLE BOMBAY HIGH
COURT IN WRIT PETITION NO. 3755 OF 2022
Exhibit P24 A LIST OF DATES IN RELATION TO THE SUBSCRIPTION
LICENSE AGREEMENT AND VARIOUS INTERIM EXTENSIONS
GRANTED BY STAR INDIA PVT. LTD. TO ASIANET
DIGITAL NETWORK PVT. LTD.
Exhibit P25 A LIST OF DATES FOR CORRESPONDENCES EXCHANGED
BETWEEN STAR INDIA PVT. LTD. AND THE RESPONDENT
NO. 2, ASIANET DIGITAL NETWORK PVT. LTD. DURING
JUNE – NOVEMBER 2021.
Exhibit P26 TRUE COPY OF THE JUDGMENT OF THE HON’BLE SUPREME
COURT IN CCI V. BHARTI AIRTEL LTD. REPORTED IN
(2019) 2 SCC 521.
Exhibit P27 A TRUE COPY OF THE JUDGMENT OF THE HON’BLE BOMBAY
HIGH COURT TITLED AS STAR INDIA PVT. LTD. V. CCI
REPORTED IN 2019 SCC ONLINE BOM 3038.
Exhibit P28 A TRUE COPY OF THE ORDER DATED 06.03.2020 ISSUED
BY THE HON’BLE SUPREME COURT IN SPECIAL LEAVE
PETITION NO. 3832 OF 2020.
Exhibit P29 A TRUE COPY OF THE ORDER DATED 22.05.2020 ISSUED
BY THE HON’BLE SUPREME COURT IN SPECIAL LEAVE
PETITION NO. 3832 OF 2020.
Exhibit P30 A TRUE COPY OF THE ORDER DATED 05.06.2020 ISSUED
BY THE HON’BLE SUPREME COURT IN SPECIAL LEAVE
PETITION NO. 3832 OF 2020.
Exhibit P31 A TRUE COPY OF JUDGMENT OF THE HON’BLE KERALA
HIGH COURT IN ALL INDIA DIGITAL CABLE FEDERATION
V. TELECOM REGULATORY AUTHORITY OF INDIA REPORTED
IN 2021 SCC ONLINE KER 7162.
Exhibit P32 A COPY OF THE ADVERTISING AND PROMOTION SERVICES
AGREEMENT DATED 25.11.2019.
Exhibit P33 A TRUE COPY OF THE ORDER DATED 19.03.2018 ISSUED
BY THE HON’BLE HIGH COURT OF BOMBAY IN W.P. NO.
WP(C) NOs. 29766, 29767
and 29768 OF 2022 142
2025:KER:36755
975 OF 2018.
Exhibit P34 A TRUE COPY OF THE ORDER DATED 01.04.2019 ISSUED
BY THE HON’BLE HIGH COURT OF BOMBAY IN W.P. NO.
975 OF 2018.
Exhibit P35 A TRUE COPY OF THE ORDER DATED 16.08.2018 ISSUED
BY THE HON’BLE BOMBAY HIGH COURT IN W.P.
9175/2018.
Exhibit P36 True Copy of the Tariff Order dated 22.11.2022
RESPONDENT EXHIBITS
Exhibit R3(1) TRUE COPY OF THE ORDER OF THE NCLT DATED
20.01.2023
Exhibit R3(2) TRUE COPY OF LETTER DATED 10.05.2023 OF THE
MINISTRY OF INFORMATION AND BROADCASTING
GOVERNMENT OF INDIA.
Exhibit R2(i) TRUE COPY OF THE TABLE PREPARED BY THE ADNPL
ELUCIDATING THE CALCULATIONS, BASIS THE MARKET
INTELLIGENCE, DEMONSTRATING THE DISCRIMINATORY
TREATMENT