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Competition Act, 2002: ss.14, 19, 21, 21A and 26 – RJIL filedinformation under the Act alleging anti-competitive agreement/cartel having been formed by three major telecom operators (IDOs)along with COAI – Grievance of RJIL was that the IDOs intentionallyignored its request to augment Point of Interconnection (POIs) foraccess, National Long Distance and international Long Distanceservices, as the capacity already provided to it was causing hugePOI congestion resulting in call failures on its network – Apartfrom IDOs, certain allegations were made against COAI also – Itwas alleged that IDOs were denying mobile number portability(MNP) requests of customers who wanted to switch to RJIL competingservice and that COAI was acting at the behest of IDOs against theinterest of competing member i.e. RJIL and not for the common interestof industry and consumers as a whole – CCI held that prima faciecase existed and an investigation was warranted and directedDirector General to cause investigation in the case – Jurisdictionof CCI to deal with the matter was challenged by IDOs and COAI –Held: As the TRAI is constituted as an expert regulatory body whichspecifically governs the telecom sector, the said aspects of thedisputes are to be decided by the TRAI in the first instance – Theseare jurisdictional aspects – TRAI, being a specialised sectoralregulator and also armed with sufficient power to ensure fair, nondiscriminatoryand competitive market in the telecom sector, is bettersuited to decide the said issues – The concepts of “subscriber”,“test period”, “reasonable demand”, “test phase and commercialphase rights and obligations”, “reciprocal obligations of serviceproviders” or “breaches of any contract and/or practice”, arisingout of TRAI Act and the policy so declared, are the matters withinthe jurisdiction of the Authority/TDSAT under the TRAI Act only –Once that exercise is done and there are findings returned by the TRAI which lead to prima facie conclusion that IDOs have indulgedin anti-competitive practices, CCI can be activated to investigatethe matter going by the criteria laid down in relevant provisions ofCompetition Act – Telecom Regulatory Authority of India Act, 1997– Telegraph Act, 1885 – Telecommunication – Jurisdiction.Competition Act, 2002: Salient features of the Act, discussed.Competition Act, 2002: Competition Commission of India(CCI) – Duties and functions – The CCI is entrusted with duties,powers and functions to deal with three kinds of anti-competitivepractices – These are: (a) where agreements are entered into bycertain persons with a view to cause an appreciable adverse effecton competition; (b) where any enterprise or group of enterprises,which enjoys dominant position, abuses the said dominant position;and (c) regulating the combination of enterprises by means of mergersor amalgamations to ensure that such mergers or amalgamationsdo not become anti-competitive or abuse the dominant position whichthey can attain – The purpose of CCI is to eliminate such practiceswhich are having adverse effect on the competition, to promote andsustain competition and to protect the interest of the consumers andensure freedom of trade, carried on by the other participants, inIndia – For the purpose of conducting an inquiry, the CCI isempowered to call any person for rendering assistance and/orproduce the records/material for arriving at even the prima facieopinion.Competition Act, 2002: s.26(1) – Writ petition against orderunder s.26(1) of 2002 Act – Maintainability of – RJIL filedinformation under the Act alleging anti-competitive agreement/cartelhaving been formed by three major telecom operators (IDOs) alongwith COAI – CCI exercised its right under s.26 and held that primafacie case existed and an investigation was warranted into the matterand directed Director General to cause investigation in the case –In writ petition, High Court was called upon to decide as to whetherthe jurisdiction of the CCI was entirely excluded or to what extentthe CCI could exercise its jurisdiction in these cases when the mattercould be dealt with any another regulator, namely, the TRAI – Held:When such jurisdictional issues arose, the writ petition would clearlybe maintainable – Constitution of India – Art.226 – Judicial review.Competition Act, 2002: s.26(1) – Whether the High Courtcould give its findings on merits – Held: Once the order under s.26(1)of the 2002 Act is held to be administrative in nature and that it wasmerely a prima facie opinion directing the Director General to carrythe investigation, the High Court was not competent to adjudge thevalidity of such an order on merits – The observations of the HighCourt giving findings on merits, therefore, were not appropriate –At the same time, since the order of the High Court is upheld on theaspect that the CCI could exercise jurisdiction only after proceedingsunder the TRAI Act had concluded/attained finality, the ultimatedirection given by the High Court quashing the order passed by theCCI is not liable to be interfered with as such an exercise carriedout by the CCI was premature.Telecom Regulatory Authority of India Act, 1997: Salientfeatures of the Act, discussed. |
