COMPETITION COMMISSION OF INDIA versus M/S FAST WAY TRANSMISSION PVT. LTD.

Citation: [2018] 2 S.C.R. 232 · Decided: 24-01-2018 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 2 S.C.R.
COMPETITION COMMISSION OF INDIA
v.
M/S FAST WAY TRANSMISSION PVT. LTD.
(Civil Appeal No. 7215 of 2014)
JANUARY 24, 2018
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Competition Act, 2002 – ss.3, 4 and 27 –  Cable TV network
– Respondent No.5 (Broadcaster of a News Channel) entered into
various agreements with respondents No.1 to 4 (Multi System
Operators) – Agreements terminated by the Multi System Operators
(MSOs) – Complaint filed by respondent no.5 – Director General
of Investigation found MSOs indulged in practices violative of ss.3
and 4 of the Act – Competition Commission held that MSOs were in
a dominant position which could be misused and imposed penalty
on them u/s.27 – However, Appellate Tribunal held that there was
no violation of either s.3 or of s.4 of the Act – Whether there is an
abuse of dominant position u/s.4(2)(c) where the respondent-MSOs
could be stated to have indulged in a practice resulting in denial of
market access in any manner – Held: In instant case, “dominant
position” is clearly made out – Explanation to s.4 specifically refers
to a position of strength that is enjoyed by an enterprise or group
thereof in the relevant market, which in instant case is Punjab and
Chandigarh, in the Cable TV market, which enables MSOs to
operate independently of competitive forces prevailing in the relevant
market – On facts, clearly both sub-sections (i) and (ii) of cl.(a) of
the Explanation to s.4 apply, and thus, the respondent-MSOs could
be said to be in a “dominant position”, for the purpose of s.4  –
Once a dominant position is made out on facts, whether a
broadcaster is in competition with MSOs is a factor that is irrelevant
for the purpose of the application of s.4(2)(c) which, as has been
found, becomes applicable for the simple reason that the broadcaster
is denied market access due to an unlawful termination of the
agreement between the said broadcaster and the MSOs (respondents
1- 4) – However, respondent-MSOs were correct in stating that the
TRP of the given news channel (respondent no.5) were much lower
than given to any other channel and this was the reason for
[2018] 1 S.C.R. 232
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terminating the agreement with the broadcaster in mid-stream –
Though, on facts, s.4(2)(c) has been breached, yet the reason given
by the respondents 1- 4 being otherwise justifiable, no penalty be
levied on the facts of the present case – Telecommunication
(Broadcasting and Cable Services) Interconnection Regulations,
2004 – Regn. 4.2.
Competition Act, 2002 – ss.2,4,18,19,27,41,53B, 53T and 60
– Role and Duty of Commission – Held: The Preamble of the Act,
read with the ss. 2,4,18,19,27,41,53B,53T and 60 would show that
the Commission set up by the Competition Act certainly has a positive
role to play – A perusal of s.18 and s.19 would show that it is a
positive duty of the Commission to eliminate all practices which
have an adverse effect on competition – Further the Commission
should promote and sustain competition, apart from protecting the
interest of consumers, so as to ensure freedom of trade carried on
by all participants in markets all over India – Also, a positive role is
given to the Commission to inquire, suo motu, into the dominant
position of enterprises, and to prohibit anti competitive agreements
– S.60 then gives the Act overriding effect over other statutes in
case of a clash between the Act and such statues to effectuate the
policy of the Act, keeping in view the economic development of the
country as a whole.
Allowing the appeal, the Court
HELD: 1.  The Preamble of the Competition Act, read with
sections 2,4,18,19,27,41,53B, 53T and 60 would show that the
Commission set up by the Competition Act certainly has a positive
role to play.  A perusal of Sections18 and 19 would show that it is
a positive duty of the Commission to eliminate all practices which
have an adverse effect on competition.  Further the Commission
should promote and sustain competition, apart from protecting
the interest of consumers, so as to ensure freedom of trade
carried on by all participants in markets all over India.  Also, a
positive role is given to the Commission to inquire, suo motu,
into the dominant position of enterprises, and to prohibit anti
competitive agreements. Section 60 then gives the Act overriding
effect over other statutes in case of a clash between the Act and
such statues to effectuate the policy of the Act, keeping in view
COMPET

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