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TMI Blog2014 (6) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, OP-1 on dubbing must be dispensed with and there should be no bar or prohibition on exhibition of dubbed films or serials produced in any language in the areas under its control. (ii) The Co-ordination Committee of Artist and Technicians of West Bengal Film and Television Industry should not impose any restrictions in any manner on distribution and exhibition of the Films or TV serials in the areas under its control." 2. The said order was passed by the CCI, having found the original OP-1 and OP-2 guilty of breach of section 3(3)(b) of the Competition Act, 2002 (in short the "Act"). In addition to this, the CCI also decided to take up separate proceedings against the members of original OP-2. The CCI, however, refused to inflict any separate penalty against OP-1, as it had already imposed penalty on OP-1. A separate judgment was written by one of the learned Member Justice Dhingra. He, however, took the view that neither OP-1 nor OP-2 breached any provision, much less of section 3 and 4, and exonerated both the Opponents. 3. One Shri Sajjan Khaitan, Proprietor, M/s. Hart Video was the Informant, while Eastern India Motion Picture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta Television Network Private Ltd., Kolkata (owner of 'CTVN Plus' channel). These two channels were given hard disks of four episodes of the said serial on 02.02.2011 and 12.02.2011 and thereafter an advertisement was placed in daily newspaper on 19.02.2011 that the serial would be shown on Channel-10 at 10:00 A.M. in the morning and on CTVN Plus at 10:00 P.M. every Sunday. 7. It was further informed that on 18.02.2011, OP-4, Shri Sanjoy Das received a letter from OP-2, CTVN (the 'Appellant') to stop the telecast of the above serial. A letter was also received from EIMPA dated 01.03.2011. In these letters, OP-4 was directed/ requested to withdraw/ stop the telecast of the serial. Similar letters were received by original OP-3, M/s. Channel-10 and OP-4, CTVN Plus from EIMPA as well as Co-ordination Committee. Still another letter was received by OP-4, CTVN Plus from Co-ordination Committee. These letters represented that the OP-3 and OP-4 should stop the telecast of Mahabharata serial in the interest of healthy growth of film and television industry in West Bengal. It was allegedly pointed out that for last 13 years, there was a convention prevailing of restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd EIMPA had objected to the telecast of the serial and threatened non-cooperation in case exploitation of the serial was not stopped. There was a demonstration held on 07.04.2011 and a one day strike was also organised. The DG found that OP-3, Channel-10 had actually stopped the telecast of the serial, while the OP-4, CTVN Plus continued to telecast the aforementioned serial. According to the DG, EIMPA as well as Co-ordination Committee had restricted the telecast of dubbed version and thereby restricted its commercial exploitation. Before the DG, the Coordination Committee had taken a defence that they had tried to agitate on grievances of their members and they had legitimately objected to the telecast. The Co-ordination Committee also raised defence that they had the right to raise the concerns to protect regional language serials. The Co-ordination Committee also argued that allowing the telecast of dubbed serials in Bangla language, Film and TV industry would be affected, which would result in joblessness of local artists. All these arguments were refuted by the DG. The DG further found that there was a huge potential of local film artists, and the industry was not likely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of EIMPA as the EIMPA has not come before us, nor has it filed any appeal. 12. The reply of the Co-ordination Committee was to the effect that the it comprised of artists and technicians of West Bengal Film and Television Industry and consists of West Bengal Motion Picture Artists' Forum and Federation of Cine Technicians and Workers of Eastern India only. The other members like WATP, ATA and EIMPA were not in the Co-ordination Committee at all. It was further pleaded that the artists and technicians had formed a union under the Trade Union Act and as such they are not an enterprise. The Co-ordination Committee pointed out that the it was not in a position to control production, programming, marketing and uplinking of any serial in the satellite channel. It was pointed out that even Doordarshan had defended the regional Bangla industry by stopping the telecast of Hindi programmes dubbed in Bangla in Kolkata Doordarshan, vide their letter dated 19.06.1997 and such action could not be said to be anti-competitive in nature. It was pleaded that as a Trade Union, it was the duty of the Co-ordination Committee to take up the activities to safeguard interest of their members. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee, the CCI took the view that since the Co-ordination Committee takes the measures in consultation with these organisations, therefore, the Co-ordination Committee must be deemed to have comprised of all the five members. 16. However, it was held by the CCI on account of the letters written and the actions on the part of EIMPA and Co-ordination Committee, that harm was caused to the consumers, as they were deprived of watching the dubbed TV serial on a TV channel for a brief period and this action had hindered the competition in the market by barring the dubbed TV serials from exploitation on TV channels. The CCI also held that this conduct created barriers to entry of a new content in form of a dubbed TV serial. On these counts, the CCI held the contravention of section 3(3)(b) against the EIMPA and the Co-ordination Committee. 17. We must at this stage also take stock of the minority order penned by Justice Dhingra. After stating the facts, the minority order suggests that the DG had not identified the relevant market correctly. According to the minority order, the relevant market as found by the DG was 'Film and TV Industry of West Bengal', which was highly vague and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cooperation etc. The learned Member, therefore, held that it was not an agreement amongst the enterprises, active in the same relevant market, due to which the Informant was stopped from telecasting of dubbed serial. The learned Member held that Informant had already purchased the rights to telecast Mahabharata and TV channels were at full liberty to ignore such coercive threats and in fact one channel had ignored the threats and continued to telecast the serial and therefore, merely, if someone under the threat or boycott did not telecast some programme on his channel for which he has all the legal rights, that could not be covered under section 3. The learned Member then went on to held as under :- "Section 3 would have been attracted only, if under some agreement, the Informant had not been allowed the telecasting of the programme on TV channels. Since the Informant already had secured the rights of the telecasting of the programme, it was at liberty to telecast the programme and nobody could have stopped the viewers from viewing the programme. A threat of demonstration or dharna or strike, if ignored, would not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as held by majority order is too broad to be accepted. Nature of the Information does not show anything, which could even be distinctly connected with the whole 'Film and Television Industry in the State of West Bengal'. The Information is only against showing the dubbed serials on the television. It has no relation, whatsoever, with production, distribution etc of any film or any other material on the TV channels. The controversy is very specific. While some channels were actually showing the other language serials, dubbed in Bangla, that precisely was being opposed. The relevant market is, therefore, the 'telecasting of the dubbed serials on the television in West Bengal'. In this behalf, the finding by the minority order appears to be more appropriate, as compared to the majority order. We hold accordingly. 22. Now coming to the interpretation of scope of section 3(3)(b). The section is in following terms :- "3(3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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