REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 11843 OF 2018 (ARISING OUT OF SLP (C) NO. 35574 OF 2017)

COMPETITION COMMISSION OF INDIA .....APPELLANT(S)

VERSUS BHARTI AIRTEL LIMITED AND OTHERS .....RESPONDENT(S)

W I T H CIVIL APPEAL NO(S). 11844-11845 OF 2018 (ARISING OUT OF SLP (C) NOS. 35532-35533 OF 2017)

CIVIL APPEAL NO(S). 11846 OF 2018 (ARISING OUT OF SLP (C) NO. 35497 OF 2017)

CIVIL APPEAL NO(S). 11852 OF 2018 (ARISING OUT OF SLP (C) NO. 115 OF 2018)

A N D CIVIL APPEAL NO(S). 11847-11851 OF 2018 (ARISING OUT OF SLP (C) NOS. 37285-37289 OF 2017)

J U D G M E N T

A.K. SIKRI, J.

Signature Not Verified Leave granted.

Digitaly signed by SUSHIL KUMAR RAKHEJA Date: 2018.12.05 Reason:

2) Reliance Jio Infocomm Limited (hereinafter referred to as 'RJIL')

has filed information under Section 19(1) of the Competition Act, 2002 (hereinafter referred to as the 'Competition Act') before the Competition Commission of India (for short, 'CCI') 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) (hereinafter referred to as the ‘IDOs’). Similar Informations under Section 19 of the Competition Act were also filed by one Mr. Ranjan Sardana, Chartered Accountant, and Mr. Justice Kantilal Ambalal Puj (Retd.). These were registered by the CCI as Case Nos. 80-81, 83 and 95 respectively. As per Section 26 of the Competition Act, on receipt of such an information, the CCI has to form an opinion as to whether there exists a prima facie case or not. If it is of the opinion that there exists a prima facie case, the CCI directs the Director General to cause an investigation to be made into the matter. Apart from the IDOs, certain allegations were also made against the Cellular Operators Association of India (for short, 'COAI'). The CCI issued notice to these parties and after hearing the RJIL, the aforesaid cellular companies and COAI, it passed a common order dated April 21, 2017 in all these cases (by clubbing them together)

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.

Introduction:

3) 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 on the ground that the CCI did not have any jurisdiction to deal with such a matter. Show-cause notices were issued pursuant to which the CCI as well as RJIL filed their counter affidavits. The mater was heard and vide judgment dated September 21, 2017 the High Court has allowed these writ petitions and quashed/set aside the order dated April 21, 2017 passed by the CCI and consequently notices issued by the Director General of the CCI have also been quashed. We may reproduce the conclusions and operative portion of the order passed by the Bombay High Court here itself, which are as under:

"130. Conclusions:

a) All the Writ Petitions are maintainable and entertainable. This Court has territorial jurisdiction to deal and decide the challenges so raised against impugned order (majority decision) dated 21 April 2017, passed by the Competition Commission of India (CCI) under the provisions of Section 26(1) of the Competition Act, 2002 in case Nos. 81 of 2016, 83 of 2016 and 95 of 2016 and all the consequential actions/notices of the Director General under Section 41 of the Competition Act arising out of it.

b) The telecommunication Sector/Industry/Market is governed, regulated, controlled and developed by the Authorities under the Telegraph Act, the Telecom Regulatory Authority of India Act (TRAI Act) and related Regulations, Rules, Circulars, including all government policies. All the “parties”, “persons”, “stakeholders”, “service providers”, “con