COMPETITION COMMISSION OF INDIA versus BHARTI AIRTEL LIMITED AND OTHERS

Citation: [2018] 14 S.C.R. 489 · Decided: 05-12-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Leave granted

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Judgment (excerpt)

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489
COMPETITION COMMISSION OF INDIA
v.
BHARTI AIRTEL LIMITED AND OTHERS
(Civil Appeal No. 11843 of 2018)
DECEMBER 05, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Competition Act, 2002: ss.14, 19, 21, 21A and 26 – RJIL filed
information 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 intentionally
ignored its request to augment Point of Interconnection (POIs) for
access, National Long Distance and international Long Distance
services, as the capacity already provided to it was causing huge
POI congestion resulting in call failures on its network – Apart
from IDOs, certain allegations were made against COAI also – It
was alleged that IDOs were denying mobile number portability
(MNP) requests of customers who wanted to switch to RJIL competing
service and that COAI was acting at the behest of IDOs against the
interest of competing member i.e. RJIL and not for the common interest
of industry and consumers as a whole – CCI held that prima facie
case existed and an investigation was warranted  and directed
Director General to cause investigation in the case – Jurisdiction
of CCI to deal with the matter was challenged by IDOs and COAI –
Held: As the TRAI is constituted as an expert regulatory body which
specifically governs the telecom sector, the said aspects of the
disputes are to be decided by the TRAI in the first instance – These
are jurisdictional aspects – 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 said issues – 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 TRAI Act and the policy so declared, are the matters within
the jurisdiction of the Authority/TDSAT under the TRAI Act only –
Once that exercise is done and there are findings returned by the
[2018] 14 S.C.R. 489
489
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490                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
TRAI which lead to prima facie conclusion that IDOs have indulged
in anti-competitive practices, CCI can be activated to investigate
the matter going by the criteria laid down in relevant provisions of
Competition 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-competitive
practices – These are: (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 dominant position, abuses the said dominant position;
and (c) regulating the combination of enterprises by means of mergers
or amalgamations to ensure that such mergers or amalgamations
do not become anti-competitive or abuse the dominant position which
they can attain – The purpose of CCI is to eliminate such practices
which are having adverse effect on the competition, to promote and
sustain competition and to protect the interest of the consumers and
ensure freedom of trade, carried on by the other participants, in
India – For the purpose of conducting an inquiry, the CCI is
empowered to call any person for rendering assistance and/or
produce the records/material for arriving at even the prima facie
opinion.
Competition Act, 2002:  s.26(1) – Writ petition against order
under s.26(1) of 2002 Act – Maintainability of – RJIL filed
information under the Act alleging anti-competitive agreement/cartel
having been formed by three major telecom operators (IDOs) along
with COAI – CCI exercised its right under s.26 and held that prima
facie case existed and an investigation was warranted into the matter
and directed Director General to cause investigation in the case –
In writ petition, High Court was called upon to decide as to whether
the jurisdiction of the CCI was entirely excluded or to what extent
the CCI could exercise its jurisdiction in these cases when the matter
could be dealt with any another regulator, namely, the TRAI

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