2018 Supreme(SC) 1224

SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
Competition Commission of India – Appellant
Versus
Bharti Airtel Limited & Others – Respondents
Civil Appeal Nos. 11843, 11844-11845, 11846, 11852 & 11847-11851 of 2018 (Arising Out of SLP (C) Nos. 35574, 35532-35533, 35497 of 2017, 115 of 2018 & 37285-37289 of 2017)
Decided On : 05-12-2018

IMPORTANT POINTS
Unless jurisdictional aspects are decided and IDOs are held to have violated provisions of TRAI Act, CCI cannot go into the question as to whether violation of the provisions of TRAI Act amounts to ‘abuse of dominance’ or ‘anti-competitive agreements’.
In case of two Acts operating in two different fields and having different purposes like TRAI Act and Competition Act, it cannot be said that there is an implied repeal of one by the other.
Even if TRAI determines certain activity to be anti-competitive, it cannot take action. Only Only CCI is empowered to do so.
Primacy has to be given to the respective objections of TRAI and CCI under the TRAI Act, 1997 and Competition Act, 2002 maintaining a balance.
Order of CCI u/s 26(1), Competition Act, 2002 directing investigation into information received by it is an administrative order.
Petitions raising jurisdictional are maintainable under Article 226.

Headnote:(a) Competition Act, 2002 – Section 19 r/w section 26(1) and section 3(3)(b) – CCI entrusted with duties, powers and functions to deal with three kinds of anti-competitive practices, namely, entering into agreements aimed at causing appreciable adverse effect on competition; abuse of its dominant position by an enterprise of group of enterprises; and attaining dominant position by mergers and amalgamations which can be abused – Determination as to whether any agreement has an appreciable adverse effect on competition – Factors to be considered – Section 19(3) – Creating barriers to new entrants; driving existing competitors out of the market – Market – Geographic or product market. (Para 67, 69)

       (2017) 8 SCC 47 – Relied upon

       (b) Telecom Regulatory Authority of India Act, 1997 – Section 11 – TRAI – Recommendatory/ advisory body – Functions – To protect interest of service providers and consumers of telecom sector and to permit and ensure technical compatibility and effective inter-relationship between different service providers and for ensuring compliance of licence conditions by all the service providers – Telecommunication Interconnection (Reference Interconnect Offer) Regulations, 2002; Quality of Service of Basic Telephone Service (Wireline) and Cellular Mobile Telephone Service Regulations, 2009 – Interconnectivity agreement – Instantly RJIL raising dispute of IDOs not giving POIs as per licence conditions – Even specifically approaching TRAI for settlement of this dispute – Such disputes are to be decided by the TRAI in the first instance – Unless TRAI finds fault with the IDOs on aforesaid aspects, matter cannot be taken further. (Para 74, 77, 79, 80, 83)

       (2016) 7 SCC 353 – Relied upon

       (c) TRAI Act, 1997 – Section 11 and section 21, Competition Act, 2002 – Instantly TRAI is required to adjudicate jurisdictional aspects of providing POIs by IDOs, like, when IDOs were to commence provisioning of POIs to RJIL; whether the demand for POIs made by RJIL were reasonable or not; whether there was any delay/denial at the end of Vodafone in provisioning of POIs; whether the POIs were to be provided ‘immediately’ and during ‘test phase’; whether IDOs have provided sufficient number of POIs to RJIL in conformity with the licence conditions – Unless these aspects are decided and IDOs are held to have violated provisions of TRAI Act, CCI cannot go into the question as to whether violation of the provisions of TRAI Act amounts to ‘abuse of dominance’ or ‘anti-competitive agreements’. (Para 84, 85)

       (d) Interpretation of statute – Acts operating in two different fields and having different purposes – It cannot be said that there is an implied repeal of one by the other – TRAI Act and Competition Act are two special Acts operating in different fields. (Para 89)

       (2002) 6 SCC 600 – Relied upon

       (e) Competition Act, 2902 – Section 3 and 27 – Anti competitive actions offending section 3 – CCI empowered u/s 27 to pass certain kinds of orders after inquiry into the agreements for abuse of dominant position – TRAI not equipped to deal with it – Even if TRAI determines certain activity to be anti-competitive, it cannot take action – Only CCI is empowered to do so – Held, in case like instant one jurisdiction of CCI is not ousted – ‘Comity’ between the sectoral regulator (TRAI) and the market regulator (CCI) is to be maintained. (Para 90)

       (2001) 3 SCC 71; (2001) 3 SCC 71; (2011) 10 SCC 543; Case C-280/08 P; (T-336/07); 493 US 411 (1990); (2017) 5 SCC 17; (2007) 4 SCC 343; (1980) 1 SCC 4; (1990) 4 SCC 406; 551 US 264 (2007); (2003) 2 SCC 111; (2010) 10 SCC 744 – Referred

       (f) Interpretation of statute – Harmonious interpretation – Primacy has to be given to the respective objections of TRAI and CCI under the TRAI Act, 1997 and Competition Act, 2002 maintaining a balance – Held, in the first instance TRAI should decide jurisdictional aspects – If it returns the finding that IDOs have indulged in anti-competitive practices; CCI can be activated to investigate the matter. (Para 91, 92)

       (g) Constitution of India – Article 226 – Maintainability – Writ petition against order of CCI u/s 26(1), Competition Act, 2002 directing investigation into information received by it – It is an administrative order – However, the petitions having raised jurisdictional issues held, were maintainable under Article 226. (Para 94, 95, 95, 97)

       (2010) 10 SCC 744; AIR 1967 SC 295; (2007) 8 SCC 559 – Relied upon

       (h) Competition Act, 2002 – Section 26(1) – Order under, administrative – Merely a prima facie opinion – Not open to High Court to adjudge validity of such order on merits – Order of High Court that CCI could exercise jurisdiction only after TRAI returns its findings on the jurisdictional aspects upheld – Therefore no error in High Court quashing CCI order. (Para 98, 99)

       Facts of the case:

       Reliance Jio Infocomm Limited has filed information under Section 19(1) of the Competition Act, 2002 before the Competition Commission of India alleging anti-competitive agreement/cartel having been formed by three major telecom operators, namely, Bharti Airtel Limited, Vodafone India Limited and Idea Cellular Limited (Incumbent Dominant Operators). Similar Information was also filed by one Mr. Ranjan Sardana, Chartered Accountant, and Mr. Justice Kantilal Ambalal Puj (Retd.). The CCI after hearing the RJIL, the aforesaid cellular companies and COAI, passed a common order in all these cases holding a view that prima facie case exists and an investigation is warranted into the matter. It, accordingly, directed the Director General to cause investigation in the case.

       Four writ petitions came to be filed by the Bharti Airtel Limited, Vodafone India Limited, Idea Cellular Limited and COAI respectively. The prayed for quashing of the aforesaid order and consequential action/proceedings. The High Court has allowed these writ petitions and quashed/set aside the order passed by the CCI and consequently notices issued by the Director General of the CCI have also been quashed.

       Finding of the Court:

       Quashing of CCI order upheld.

       Result: Appeals dismissed.