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HIGH COURT OF JUDICATURE AT MADRAS
V. RAMASUBRAMANIAN & P.R. SHIVAKUMAR, JJ.
The Tamil Nadu Film Exhibitors Association, Chennai – Appellant
Versus
Competition Commission of India, New Delhi & Others – Respondent
Writ Appeal Nos. 1806 & 1807 of 2013
Decided On : 27-03-2015
Competition Act, 2002 - Section 3 - Challenging an order of the Competition – Circumstances evidence – Public service Commission - After examining the said complaint, the Competition Commission of India, passed an order in terms of Section 26(1) of Competition Act, 2002 holding that there existed a prima facie case requiring an investigation by the Director General of the Competition Commission - In meantime second respondent also faced opposition from a small group of intolerant people, who managed to force Commissioner of Police Chennai to issue an order under Section 144 of Code of Criminal Procedure, prohibiting the exhibition of the feature film for public view. However, after a series of dramatic twists and turns that were more interesting than even the film itself Commissioner of Police passed an order on 3.2.2013 under Section 144(5) of Code of Criminal Procedure revoking the earlier ban order. Therefore, the film got released in the theatres – Held, In the case on hand Director General of Competition Commission of India has already completed the investigation and filed a report. In Chapter 8 of the Report Director General has concluded that the practices and conduct of the appellant are restrictive in nature to control the film exhibition business - This conclusion has been reached only on the ground that the appellant limited and controlled the exhibition of movies as well as innovative use of technology in the exhibition of feature films in the territory of Tamil Nadu, unless its own directions are obeyed. It is also pointed out in the Report that the appellant was guilty of violation of the provisions of Section 3(3) (b) read with Section 3(1) of the Act. The Director General has placed on record that in yet another case bearing initiated at instance of Reliance Big Entertainment Limited, appellant was imposed with a penalty - In other words investigation Report of the Director General not only concludes that appellant is guilty of violation of the provisions of the Act relating to Anti-Competitive Practices, but also points out that it is second instance of such nature – Therefore court are of the considered view that the appellant should file the memorandum of compromise/settlement before the Competition Commission itself so that Commission will be in a better position to appreciate whether the same could be accepted with or without modifications - In view of the above writ appeals are disposed of permitting the appellants to file the Memorandum of Compromise/Settlement entered into between them and the second respondent, before the Competition Commission. Upon the parties filing the Memorandum Competition Commission may look into the same in the context of what court have indicated above and pass appropriate orders either rejecting compromise or accepting same with or without modifications - Commission may bear in mind that if in the light of compromise, any further proceeding would only be an exercise in futility, the same shall not be undergone just for the purpose of completion of formalities – Appeal disposed of
V. Ramasubramanian,J
1. These Writ Appeals arise out of the dismissal of two writ petitions filed by the appellant herein, one challenging an order of the Competition Commission of India directing an investigation to be initiated and the other seeking a direction to the local police, to take action on a complaint lodged by the appellant.
2. We have heard Mr.Nithyesh Nataraj, learned counsel for the appellant, Mr.G.Masilamani, learned Senior Counsel appearing for the Competition Commission of India, Mr.Rahul Balaji, learned counsel for the second respondent and Mr.R.Ravichandran, learned Additional Government Pleader appearing for the State.
3. The appellant herein is the Tamil Nadu Film Exhibitors Association. It is registered as a society under the Tamil Nadu Societies Registration Act. The second respondent herein is a producer of feature films. On 8.1.2013, the second respondent filed a complaint before the Competition Commission of India (which is the first respondent herein), alleging that by a resolution dated 20.12.2012, the Tamil Nadu Theatre Owners Association decided to ban the screening of films which are released via DTH. It was claimed by the second respondent herein that the resolution would tantamount to an anti-competitive practice, violating Section 3(3)(b) of the Competition Act, 2002.
4. After examining the said complaint, the Competition Commission of India, passed an order on 16.01.2013 in terms of Section 26(1) of the Competition Act, 2002, holding that there existed a prima facie case requiring an investigation by the Director General of the Competition Commission.
5. In the meantime, the second respondent also faced opposition from a small group of intolerant people, who managed to force the Commissioner of Police, Chennai to issue an order on 23.1.2013 under Section 144 of the Code of Criminal Procedure, prohibiting the exhibition of the feature film "Viswaroopam" for public view. However, after a series of dramatic twists and turns that were more interesting than even the film itself, the Commissioner of Police passed an order on 3.2.2013 under Section 144(5) of the Code of Criminal Procedure, revoking the earlier ban order. Therefore, the film got released in the theatres.
6. However, the Director General of the Competition Commission issued a notice dated 1.4.2013 under Section 36 (2) read with Section 41(2) of the Act, calling upon the appellant to furnish certain information as well as documents.
7. Immediately upon receipt of the said notice, the appellant filed a writ petition in W.P.No.12085 of 2013 on the file of this Court challenging the order of the Competition Commission of India, dated 16.01.2013 passed in Case No.1 of 2013.
8. Simultaneously, the appellant herein also lodged a complaint dated 13.4.2013, with the Commissioner of Police, alleging that the complaint filed by the second respondent before the Competition Commission of India was on the basis of a forged document, namely the alleged resolution dated 20.12.2012. Thereafter, the appellant filed another writ petition in W.P.No.14411 of 2013 seeking a mandamus to direct the Commissioner of Police to take their complaint on record and initiate action against the second respondent. Both the writ petitions were taken up by a learned Judge and by a common order dated 16.8.2013, the learned Judge dismissed both the writ petitions. Aggrieved by the said order, the appellant is before us.
9. While ordering notice in the writ appeals, this Court took note of the fact that the Director General of Investigation of the Competition Commission was proceeding with the investigation. Therefore, this Court passed an interim order in these writ appeals on 11.2.2014, permitting the Director General to proceed with the investigation and finalise the same. However, the Competition Commission was directed not to proceed with the matter without the leave of the Court.
10. Subsequently, the appellant as well as the second respondent arrived at a settle
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