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TMI Blog2021 (12) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... ie case exists and has directed in its order dated 08.10.2013 that investigation be made in the matter by the Competition Commission of India. Thus, in order to enable the Directorate to investigate the matter, in exercise of powers conferred under Section 41(2) read with Section 36(2) of the Competition Act, the informations along with supporting documents were sought for from the writ petitioner/TANGEDCO. In the present case, perusal of the allegations raised by the 3rd respondent would reveal that there is a prima facie case that the TANGEDCO/writ petitioner enjoys dominant position in respect of electricity in the State of Tamil Nadu. This factum is not disputed. When the writ petitioner/TANGEDCO is in dominant position, the allegations set out in the complaint indicates certain abuses and therefore, the said abuse of dominant position warrants any further action or not, is to be investigated and all appropriate proceedings are to be allowed for the purpose of forming a final opinion - This Court is not inclined to step-in to the nature of the allegations or its veracity or otherwise, which is yet to be investigated by the Director General under the provisions of the Competi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Competition Act, 2002. The writ petitioner is at liberty to submit their explanations or objections along with the informations and documents to the respondents 1 and 2 within a period of four weeks from the date of receipt of a copy of this order. On receipt of such materials, informations, explanations from the writ petitioner, the respondents 1 and 2 are directed to proceed with the investigations, by affording opportunity to the writ petitioner/TANGEDCO and conclude the investigation and all further proceedings within a period of four months from the date of receipt of a copy of this order. The writ petitioner is directed to co-operate for the investigation for early disposal of the case. The writ petition stands dismissed. - W.P. No. 35047 of 2013, M.P. Nos. 1 and 2 of 2013 - - - Dated:- 22-12-2021 - S.M. Subramaniam, J. For the Appellant: J. Ravindran, Additional Advocate General assisted by L. Jai Venkatesh For the Respondent: N. Venkata Raman, Additional Solicitor General of India assisted by P. Mahaadevan and H. Karthik Seshadri for Iyer and Thomas ORDER S.M. Subramaniam, J. 1. The impugned order dated 08.10.2013 of Case No. 38 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine manner. A writ against a notice may be entertained only on limited grounds. If the notice has been issued by an incompetent authority having no jurisdiction or directly hitting the provisions of the Act, or if any allegations of mala fides are raised, then the writ petition is maintainable. Even in case of raising an allegation of mala fides, the authority against whom such an allegation is raised, must be impleaded as party respondent in the writ proceedings in his personal capacity. 6. This Court is of the considered opinion that all the writ petitions are maintainable under Article 226 of the Constitution of India. It is not the question regarding the maintainability of the writ petition, but the entertainability of the writ petition is to be looked into. The Courts are bound to consider, whether there is a need to entertain a writ petition and if so, what would be the grounds available for the purpose of entertaining the writ petition. 7. The learned Additional Advocate General appearing on behalf of the petitioner/TANGEDCO mainly contended that the complaint filed by the third respondent before the Competition Commission of India itself is not maintainable. Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia in the case of Competition Commission of India Vs. Bharti Airtel Limited and others, reported in (2019) 2 SCC 521. The learned Additional Advocate General relied on certain paragraphs, which reads as under: 83. The aforesaid provisions would indicate that the Act deals with three kinds of practices which are treated as anti-competitive and are prohibited. These are: 83.1. Where agreements are entered into by certain persons with a view to cause an appreciable adverse effect on competition; 83.2. Where any enterprise or group of enterprises, which enjoys dominant position, abuses the said dominant position; and 83.3. 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. 85. It is for the aforesaid reason that CCI is entrusted with duties, powers and functions to deal with three kinds of anti-competitive practices mentioned above. The purpose is to eliminate such practices which are having adverse effect on the competition, to promote and sustain competition and to protect the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y growth of telecommunication infrastructure apart from protection of consumer interest. *** 4. The powers and functions of the Authority, inter alia, are-- (i) ensuring technical compatibility and effective interrelationship between different service providers; (ii) regulation of arrangement amongst service providers of sharing their revenue derived from providing telecommunication service; (v) settlement of disputes between service providers; (vi) fixation of rates for providing telecommunication service within India and outside India; and (vii) ensuring effective compliance of universal service obligations. 99. TRAI is, thus, constituted for orderly and healthy growth of telecommunication infrastructure apart from protection of consumer interest. It is assigned the duty to achieve the universal service which should be of world standard quality on the one hand and also to ensure that it is provided to the customers at a reasonable price, on the other hand. In the process, purpose is to make arrangements for protection and promotion of consumer interest and ensure fair competition. It is because of this reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and answered by TRAI which would bring on record findings on the aforesaid aspects, CCI is ill-equipped to proceed in the matter. Having regard to the aforesaid nature of jurisdiction conferred upon an expert regulator pertaining to this specific sector, the High Court is right in concluding that 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 the TRAI Act and the policy so declared, are the matters within the jurisdiction of the Authority/TDSAT under the TRAI Act only. Only when the jurisdictional facts in the present matter as mentioned in this judgment particularly in paras 72 and 102 above are determined by TRAI against the IDOs, the next question would arise as to whether it was a result of any concerted agreement between the IDOs and COAI supported the IDOs in that endeavour. It would be at that stage CCI can go into the question as to whether violation of the provisions of the TRAI Act amounts to abuse of dominance or anti-competitive agreements . That also follows from the reading of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Limited, reported in (2008) 4 SCC 755, the Hon'ble Supreme Court of India held that Electricity Act being a Special statute would have overriding effect over the 1996 Act the general statute. 13. In the case of Anand Parkash Agarwal Vs. Dakshin Haryana Bijli Vitran Nigam, the Competition Appellate Tribunal decided the issues relating on the judgment of the Hon'ble Supreme Court of India in 'Bharti Airtel case' (cited supra). 14. The learned Additional Advocate General made a submission that the judgment of the Competition Appellate Tribunal has got persuasive value as the judgment of the Hon'ble Supreme Court has been relied upon. Relevant paragraphs are extracted hereunder: 9. The Commission further held that, the case essentially related to the functions discharged by the Electricity Distribution Company and the State Electricity Regulatory Commission in respect of fixation of FSA and no competition issue was discernible from the facts presented in the information. The Commission was of the view that, FSA was computed and levied as per the Regulations framed by HERC and any issue regarding violation of the Regulations was, therefore, to be dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edressal mechanism, which is effective and efficient, parallel proceedings under the general law is barred and thus, the impugned notice is untenable. 16. The learned Additional Advocate General, referred the category of cases, which can be entertained by the Competition Commission of India with reference to the provisions of the Competition Act, which was elaborately considered by the Hon'ble Supreme Court of India. The three kind of practices, which are treated as anti-competitive are prohibited, are enumerated in Paragraph 83 of the judgment in Bharti Airtel case (cited supra) and the case of the petitioner/TANGEDCO is not falling under any one of the three categories mentioned in the said judgment with reference to the provisions of the Competition Act and therefore, the complaint filed by the third respondent is untenable. The TANGEDCO is owned by the Government of Tamil Nadu and Electricity Supply has been provided without any discrimination to the consumers. If at all any discrepancy arises in this regard, the Tamil Nadu Electricity Regulatory Commission is competent to adjudicate the issues under the Electricity Act, which is a Special enactment and the Competition A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to the allegation of abusal of dominant position is not traceable under any of the provisions of the Electricity Act and therefore, there is no overlapping of provisions in respect of the Electricity Act and Competition Act and the Competition Act covers certain specialized area to deal with certain nature of complaint and to conduct investigation for initiation of further action. When power of investigation of initiation of action and imposition of penalty are not contemplated under the Electricity Act, the contention raised on behalf of the petitioner that the Electricity Act prevail over the Competition Act does not arise with reference to the context in the present case. 19. No doubt, the Electricity Act will prevail over the Competition Act in respect of the subjects dealt with under the provisions of the Electricity Act. However, the Competition Act provides Power of investigation by the Director General. In the event of certain circumstances as contemplated under Section 4 of the Competition Act, which is not comparable with reference to the powers conferred on the Tamil Nadu Electricity Regulatory Commission either under Section 23 or under any other provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the Act are also elaborately considered by the Hon'ble Supreme Court of India. 24. The learned Additional Solicitor General of India referred Paragraph 103 of the judgment, wherein the Hon'ble Supreme Court made an observation that 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 aforesaid issues. After all, RJIL's grievance is that interconnectivity is not provided by the IDOs in terms of the licences granted to them. The TRAI Act and Regulations framed thereunder make detailed provisions dealing with intense obligations of the service providers for providing POIs. These provisions also deal as to when, how and in what manner POIs are to be provisioned. They also stipulate the charges to be realised for POIs that are to be provided to another service provider. Even the consequences for breach of such obligations are mentioned. We, therefore, are of the opinion that the High Court is right in concluding that till the jurisdictional issues are straightened and answered by TRAI which would bring on record fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of anticompetitive practices mentioned above. The purpose 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 such an inquiry, CCI is empowered to call any person for rendering assistance and/or produce the records/material for arriving at even the prima facie opinion. The regulations also empower CCI to hold conferences with the persons/parties concerned, including their advocates/authorised persons. Xxxxxx 99. TRAI is, thus, constituted for orderly and healthy growth of telecommunication infrastructure apart from protection of consumer interest. It is assigned the duty to achieve the universal service which should be of world standard quality on the one hand and also to ensure that it is provided to the customers at a reasonable price, on the other hand. In the process, purpose is to make arrangements for protection and promotion of consumer interest and ensure fair competition. It is because of this reason that the powers and functions which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hird respondent also opposed the contentions of the petitioner by stating that there is absolutely no ouster of jurisdiction as far as the Competition Act is concerned. Section 21-A of the Competition Act provides Reference by Commission . Sub-Section (1) reads as under: (1) Where in the course of a proceeding before the Commission an issue is raised by any party that any decision which, the Commission has taken during such proceeding or proposes to take, is or would be contrary to any provision of this Act, whose implementation is entrusted to a statutory authority, then the commission may make a reference in respect of such issue to the Statutory authority. 29. It is contended that the third respondent has not preferred any complaint before the Tamil Nadu Regulatory Commission. Section 21-A empowers the Commission to make a reference where in the course of a proceeding before the Commission an issue is raised by any party that any decision which, the Commission has taken during such proceeding or proposes to take, is or would be contrary to any provision of this Act, whose implementation is entrusted to a statutory authority, then the commission may make a reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space. Thus, the TANGEDCO/writ petitioner is an enterprise within the meaning of Competition Act. 34. Section 21-A deals with Reference by Commission. Therefore, the Competition Commission of India, while conducting investigation or adjudicating the issues, forms an opinion that the actions initiated are contrary to any of the provisions of the Competition Act, whose implementation is entrusted to a statutory authority, then a reference in respect of such issue shall be made to the statutory authority concerned. Thus, the writ petitioner has got ample opportunity to defend their case and if they could able to establish the Competition Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 37. As per Informant, there was no difference in respect of levy of tariff and charges in the electricity consumed in Chennai from other Regions of Competition Commission of India Tamil Nadu. Thus entire Tamil Nadu has to be taken as single geographic market. The discrimination met out to areas other than Chennai amounted to abuse. On the basis of the above stated facts, the informant argued abuse of dominant position by OP under section 4 of the Act by imposition of discriminatory conditions in the sale of electricity (Section 4(2) (a) (i)). 38. The relevant market in this case has to be 'generation and supply/sale/distribution of electricity in the State of Tamil Nadu'. As per the information available in public domain, Tamil Nadu Electricity Board came into existence in the year 1957 and remained the sole energy provider and distributor in the state till 2008. Post 2008, as per the mandatory requirements of the Electricity Act 2003, Government of Tamil Nadu reorganized TNEB by the establishment of a holding company by the name of TNEB Ltd. and two subsidiary companies, namely Tamil Nadu Transmission Corporation Ltd. (TANTRANSCO) and Tamil Nadu Generation and Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricity charges, maintenance charges, back up costs have also increased manifold in these areas. Further, performance and delivery has become a stress point for many industries. Many industries are losing valued customers and also orders. The most critical issue, as alleged in the information, is that repayment of debt and working capital loans is becoming a challenge due to inefficient functioning of Small and Medium Industries. 40. In view of the forgoing discussion, it is evident prima facie OP was abusing its dominant position by imposing discriminatory conditions in the sale of electricity in the relevant market within the meaning of section 4(2)(a)(i) of the Act. This is a fit case for DG investigation. The opinion expressed herein above is based on facts available to the Commission at this stage. The Director General has to investigate the matter for violation of any/all provisions of the Competition Act, and not only in respect of the provisions above stated. 41. The Secretary is, therefore, directed to send a copy of this direction to the office of the DG. The DG shall investigate the above matter as stated above. In case the DG finds any company in violation of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as far as the writ petitioner/TANGEDCO is concerned. However, if there is no overlapping of provisions and if there is no mechanism for adjudication of certain disputes, then, the general law would be applicable to the aggrieved persons, who are entitled to approach the authority or Forum under the general law. 46. It is needless to state that in the absence of any investigating power or to impose penalty with reference to the allegations of abusal of dominant position by the Electricity Board in the present case, then the Competition Commission of India is empowered to take up the issues to conduct an investigation and adjudicate the issues. While doing so, if the Competition Commission of India forms an opinion that the particular issue is falling under the ambit of the Electricity Act or within the provisions of Section 23 of the Electricity Act, even at that point of time, the Commission is empowered to make a reference to the statutory authority i.e., Tamil Nadu Electricity Regulatory Commission for the purpose of conducting further adjudication or otherwise. 47. Under these circumstances, whether a prima facie case is made out by the 3rd respondent for initiation of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicatory power of the TRAI. Under those circumstances, the Hon'ble Supreme Court held that the Competition Commission of India lacks jurisdiction. However, in paragraph 83, the Hon'ble Supreme Court has considered three kind of practices, which all are treated as anti-competitive and are prohibited and if any of the complaint is falling under any one of the three kind of practices narrated in paragraph 83 of the judgment, then the Competition Commission of India is empowered to conduct an investigation and proceed in accordance with the provisions of the Competition Act. 54. In the present case, perusal of the allegations raised by the 3rd respondent would reveal that there is a prima facie case that the TANGEDCO/writ petitioner enjoys dominant position in respect of electricity in the State of Tamil Nadu. This factum is not disputed. When the writ petitioner/TANGEDCO is in dominant position, the allegations set out in the complaint indicates certain abuses and therefore, the said abuse of dominant position warrants any further action or not, is to be investigated and all appropriate proceedings are to be allowed for the purpose of forming a final opinion. 55. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minant position as contemplated under Section 4 of the Competition Act. When the Competition Act provides jurisdiction to the authorities to entertain complaint, more specifically, when there is no such investigating power contemplated under the Special Act, then there is no impediment for the Competition Commission of India for entertaining a complaint in the present case submitted by the 3rd respondent and thus, there is no infirmity or perversity. Thus, the case on hand is not a fit case for the purpose of quashing the notice. Contrarily, the writ petitioner is at liberty to avail the opportunities provided under the provisions of the Act by the respondents 1 and 2 and defend their case. 58. This being the factum established, the writ petition is not only premature, but not entertainable as the challenge made is a notice issued, providing an opportunity to the writ petitioner to defend their case under the provisions of the Competition Act, 2002. The writ petitioner is at liberty to submit their explanations or objections along with the informations and documents to the respondents 1 and 2 within a period of four weeks from the date of receipt of a copy of this order. On rece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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