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TMI Blog2015 (2) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of birth which was unilaterally changed by the competent authority. The Orissa High Court quashed the retirement of the respondent by declaring that it was punitive and amounted to removal from service within the meaning of Article 311 of the Constitution. The High Court further held that the order of retirement was vitiated because the writ petitioner had not been given a reasonable opportunity of showing cause against the proposed change in the date of birth recorded in her service book. In Kothari Filaments and another vs. Commissioner of Customs (Port), Kolkata and others [ 2008 (12) TMI 28 - SUPREME COURT ], the Supreme Court considered the correctness of an order passed by the Calcutta High Court dismissing the writ petition filed by the appellant against the order of the Customs, Excise and Gold (Control) Appellate Tribunal, Calcutta, which, in turn, approved the order of confiscation and penalty passed by the competent authority under the Customs Act, 1962. In State (NCT of Delhi) v. Navjot Sandhu [ 2005 (8) TMI 663 - SUPREME COURT ], the Supreme Court held that print outs taken from the computers/servers by mechanical process and certified by a responsible officia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reference will be made hereinafter were given and imposed penalty of Rs. 52.24 Crore. 2. Respondent No. 2, Shri Surinder Singh Barmi, who claims to be a cricket fan, filed an information under Section 19(1) of the Act alleging violation of Section 4 of the Act by the appellant and Indian Premier League (IPL) in more than one ways. The Commission considered the averments contained in the information and passed an order dated 09.12.2010 under Section 26(1) of the Act, paragraphs 4 to 16 of which read as under: 4. Informant alleged that the IPL was involved in the process of granting franchisee rights to the previous 8 teams and later for two teams of Pune and Kocchi. As per the media reports there as an agreement between the IPL and the bidders and they advised bidders regarding amount of bid for a particular team. This is bid rigging prohibited under section 3(3) of the Act. 5. As per the media the Chief of the IPL was also instrumental in favouring his near and dear for the bid and his favoured ones worked as his proxy for cornering the proceeds. Support provided by the official of the IPL significantly distorts competition in the relevant market. 6. It is also alleged that the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition Act which broadly relates to the franchisee rights, media rights, television rights, sponsorship rights, mobile applications rights etc. 14. As alleged by the Informant on the basis of media reports, there has been violation of free and fair bidding process for the franchisee of the teams, providing television rights, mobile rights, internet rights, catering services, event management, sponsorship, sporting goods and equipments, transportation, ticketing etc. 15. Through the present information it appears that IPL has commercial conflict of interest concerning organization and regulation of twenty 20 cricket events. Such situation led to undermining competition in the relevant market. 16. After giving thoughtful to the facts and circumstances of the matter and examining the entire material on record, the Commission considers that there is fair possibility that competition in the relevant market of various/ancillary products have been restricted. As the Competition Act mandates the Commission to prevent practices having adverse effect on competition and to promote and sustain competition in the market, commission is of the opinion that there exists a prima facie case of vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so issued show cause notice to the then IPL Commissioner Mr. Lalit Kumar Modi. Therefore, the BCCI itself has conceded that the bid rigging or collusive bidding has taken place. The BCCI cannot distance or shirk its responsibility on the basis that for any fraudulent action of Mr. Modi the BCCI cannot be held responsible. On the contrary, the responsibility lied with the BCCI only as all the tenders and agreements have been floated or entered into under the name and authority of the BCCI and deemed to have been in the knowledge of everybody. Any other party will only recognize the BCCI and none else. Therefore for any competition issue having appreciable adverse affect, in the arena of cricket game in India, the responsible party will be BCCI only. 12.7 On perusal of the documents submitted by BCCI and other relevant parties, the contentions of which are more elaborately discussed in Chapter-9 of this report, it clearly transpires that the franchise for tea, has been given till the IPL tournament continues, which is perpetual in nature. Therefore the agreement so made will have the effect infinitum, until and unless a breach of contract takes place which is to take care of any even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It is also seen that though the tender was supposed to be submitted by 8.1.2008 however in order to allow to form the consortium, the bid of consortium was accepted on 14.1.08, which was the date of opening the tender. This way, by abusing its dominant position the BCCI has not only provided benefits to them but also foreclosed the market for others. Subsequently, being in its dominant position, the contracts were terminated and again entered with the same parties or other related parties. Consequently, after termination of the initial agreements, no further process of tendering was resorted. It has denied any other eligible party of their right to bid and obtain the tender and hence having adverse effect on competition as market was not made open for bidding. The period of contract was for a period of 10 years which clearly reflects that no other party could bid for further 10 years and the access to market is restricted. Further, the terms of the agreement are such that the parties were made to sign on the dotted lines, as the BCCI is in the position of monopoly to provide such rights, having the position of strength. The media rights were terminated abruptly by the BCCI witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering process was adopted and looking to the infinitum tenure of the franchisee agreements and other features thereof, the BCCI has abused its dominant position in the relevant market having appreciable adverse effect on competition. Such action of BCCI establishes the foreclosure of market and creation of entry barriers. Further, abusing its dominant position the BCCI entered into the agreements with the franchisee on its own terms and conditions which has restricted the market for others and hence having adverse appreciable effect on competition within the meaning of provisions of section 4(2) of the Act. (b) As far as the media rights are concerned, looking to the conduct of BCCI-IPL with respect to the various awards of media rights where neither fair nor transparent tendering process has been adopted and the media rights were given for fairly long period of 10 years. This has created adverse appreciable effect on competition where unfair or discriminatory conditions were imposed and the market has been limited and restricted for other eligible contenders by abusing its dominant position within the meaning of provisions of section 4(2) of the Act. (c) Regarding other rights ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as under: The Commission finds BCCI guilty of contravention of Section 4(2)(c) of the Act. In view of the above and in exercise of powers under Section 27 of the Act, the Commission directs BCCI:- i) to cease and desist from any practice in future denying market access to potential competitors, including inclusion of similar clauses in any agreement in future. ii) to cease and desist from using its regulatory powers in any way in the process of considering and deciding on any matters relating to its commercial activities. To ensure this, BCCI will set up an effective internal control system to its own satisfaction, in good faith and after due diligence. iii) To delete the violative clause 9.1(c)(i) in the Media Rights Agreement. iv) The Commission considers that the abuse by BCCI was of a grave nature and the quantum of penalty that needs to be levied should be commensurate with the gravity of the violation. The Commission has to keep in mind the nature of barriers created and whether such barriers can be surmounted by the competitors and the type of hindrances by the dominant enterprise against entry of competitors into the market. The Commission has also to keep in mind the eco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin one month. After service of the notice, the case was adjourned from time to time. On 11.08.2014, the Tribunal passed the following order: Inspite of the repeated opportunities given, there is no written denial to the allegations made at page - 62 of the appeal which are very vital. The learned counsel seeks seven days' time for providing that denial in writing. List this matter on 19th August, 2014. 7. On the next effective date of hearing i.e. 27th October, 2014, the counsel representing the Commission again sought adjournment to enable the Secretary of the Commission to file written response. His request was accepted. Thereafter, Smt. Smita Jhingran, Secretary of the Commission filed affidavit dated 29.10.2014, paragraphs 4 to 19 of which read as under: 4. Clause 9.1(c)(i) of the Media Rights Agreement is part of an agreement which was filed by the appellant itself. The appellant was fully conscious of the scope of the proceedings which was the abuse of dominance by BCCI in organization of IPL matches. 5. The Deponent places hereinbelow the relevant extracts of various material on record which indicates the scope of enquiry and submissions before the Commission and which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Through the present information it appears that IPL has commercial conflict of interest concerning organization and regulation of twenty 20 cricket events. Such situation led to undermining competition in the relevant market. (emphasis supplied) 8. The DG having recognized the broader market of IPL considered the economic activities ancillary for organizing the IPL twenty 20. The relevant extracts of the DG report are given below:- 7.6 Therefore to the information available on record, it may be seen that the concern is for the underlying economic activities which are ancillary for organizing IPL Twnety-20 cricket tournament. The rights for such activities has been held by the BCCI because of its paramount position as sole controlling agency for any form of recognized cricket in India, which also includes the cricket in IPL Twenty-20 format. In other words, for organizing IPL tournaments [which is the area of investigation in terms of information and further orders of the Commission], the BCCI-IPL holds such powers in the field of ancillary economic activities, which has been granted as rights through the process of tendering or otherwise in lieu of the agreed amount. There is no su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivities which may adversely affect their performance in relation to their country and their primary organization. Any commitment by the cricket players to the ICL matches could lead to potential conflict with their prior commitments to the BCCI to play the international matches for the Indian cricket team scheduled to take place during the ICL season, given that is the BCCI is under an obligation to the ICC to honor its commitment, on behalf of the cricket player. Any default by the Indian cricket player(s) in meeting the international commitments which typically get decided at least two years in advance could severally jeopardize the Indian cricketing community's interest and comity. It may be noted that the Indian cricket team does not have any international cricket commitments during the IPL season. Accordingly the restrictions, if any, allegedly placed by the BCCI on cricket players in relation to ICL are reasonable and justifiable on objective criteria and cannot be construed as being discriminatory.... (Pg. 715/V. 3) (ii) Analysis by Dr. R. Shyam Khemani on behalf of BCCI: Dr. Shyam Khemani highlighted that the IPL is itself a product while discussing the economics of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) Quarterly Journal of Economics - Walter C. Neale: A detailed article was submitted in the Quarterly Journal of Economics wherein it was sought to be highlighted that sporting business is by nature a monopoly (Pg. 804/V. 3). League sports were identified as an indivisible product. (Pg. 804-805/V. 3). Sporting firms sell an indivisible product. Once divided it is no product at all. League sports were identified as an indivisible product. (Pg. 804-805/V3). Sporting firms sell an indivisible product. Once divided it is no product at all. (Pg. 807/V3). Example was given of a professional Baseball team which produces a complex product or in common parlance several inter-related streams of utility. (Pg. 805/V3). It was sought to be argued in the Article that each sporting league is a natural monopoly. (Pg. 806/r/w 808/V3). Four possible options were visualized in Inter-League Business competition. (Pg. 808-809/V3). It was admitted in the article that existence of economically but not sportingly competing leagues raises the money costs to both leagues and so endangers profits. (Pg. 812/V3). (iv) Efficiency of Sports League - Arun Vig, The University of Nottingham: The said article was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h sport vis-a-vis other sports/entertainment forms and viewership data analysis. These are discussed at length in the section related to media rights market. 8.38 After concluding that cricket is not substitutable with other sports or other entertainment events, the Commission considers it necessary to examine whether there are inherent difference between the two broad categories of events also viz. First Class/International events and Private Professional League Cricket event as noted in review of sports sector above which merit examination for determination of relevant market. The important fundamental differences noted are as under: a. In case of First Class/International Cricket, the teams represent states/nation and comprises of players who are 31 Indian nationals which in case of Private Professional Leagues the teams represents private clubs and can also have foreign players. b. Revenue generation becomes incidental to the main objective of development and promotion of sport in case of First Class/International events while revenue is the primary consideration in Private Professional Leagues. This distinction as we noted earlier arose from the fact that entry of private prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as a whole constituted the relevant market....... We must at this juncture point out that before holding the CD market to be the relevant market, the CCI separately considered the various aspects of equity market, F O market and WDM market. ...... We do not have to wait for the actual foreclosure to happen, even if there is any possibility of the competition being affected that is sufficient for the purpose of Section 4(2). 19. It is further stated that the dispute relating to clause 9.1(c)(i) of the Media Rights Agreement is a question of interpretation which can be decided even at the appellate stage based on the existing material on record. The argument made by the appellant before this Hon'ble Tribunal for remand of the matter is without any basis. 8. In reply to the affidavit of the Commission's Secretary, Shri Sanjay Patel, Honorary Secretary of the appellant filed affidavit dated 01.11.2014, paragraphs 3 to 17 and 19 to 22 of which read as under: 3. At the outset, it is stated that Clause 9.1(c)(i) of the Media Rights Agreement ( Impugned Clause ) was not found to be in violation of Section 4 of the Competition Act, 2002 ( Act ) by the Director General ( DG ). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports, there has been violation of free and free bidding process for the franchisee of the teams, providing television rights, Mobile rights, Internet rights, catering services. Event management, sponsorships, sporting goods and equipments, transportation, ticketing, etc. 16. After giving thoughtful consideration to the facts and circumstances of the matter and examining the entire material on record, the Commission considers that there is fair possibility that competition in the relevant market of various ancillary products have been restricted. As the Competition Act mandates the Commission to prevent practices having adverse effect on competition and to promote and sustain competition in the market, Commission of the opinion that there exists a prima facie case of violation of the Competition Act and directs Director General (DG) to investigate and submit its report within 60 days of the receipt of the order. 8. In relation to the definition of the relevant market, the Commission has wrongly stated that there is no difference in the relevant market as defined by the DG and the Commission. It is submitted that the DG defined the relevant market for the purposes of the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the process of tendering/awarding contract for granting the franchisee rights for various IPL teams; (c) In case the process was not transparent or fair in respect of tendering/awarding contract as mentioned hereinabove, whether such processes causes an appreciable adverse effect on competition, by creating barriers to the new entrants in the market. 3.4 Investigation would thus focus on examination of above mentioned conduct and the violations of the provisions of the Act by the Opposite Party having appreciable adverse effect on competition. 14. It is evident from the above that the DG himself stated that the investigation would focus on the specific issues identified him which was limited to grant of various rights associated with IPL, i.e. including grant of franchise rights, media rights, web portal rights, sponsorship rights. 15. The issues identified by the CCI in the Majority Order (reproduced hereinbelow for ready reference) are captured below: 7.1 a) Whether BCCI is an enterprise for the purposes of the Competition Act? b) Whether the actions of the BCCI associated with the organization of IPL contravene any of the provisions of the Act? 16. In addition to the above, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same is liable to be set aside only on the ground of violation of the principles of natural justice. He submitted that while the Director General had treated the 'relevant market' as underlying economic activities which are ancillary for organizing the IPL Twenty 20 Cricket Tournament , the Commission apparently differed with him and held that the relevant market is the 'Organization of Private Professional Cricket League/Events in India' and this was done without giving any notice or opportunity of hearing to the appellant. Shri Sundaram further argued that the finding recorded on the issue of contravention of Section 4 of the Act is liable to be set aside because the Commission relied upon information allegedly available in public domain and applied SNNIP test without disclosing the same to the appellant and giving it an opportunity to controvert the same. Learned Senior counsel also referred to the observations made by the Commission on the validity of clause 9.1(c)(i) of Media Rights Agreement and argued that direction given for deleting the same is liable to be set aside because the Director General had not recorded any finding qua that clause and the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information. (2) Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received under section 19, the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (3) The Director-General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission. (4) The Commission may forward a copy of the report referred to in sub-section (3) to the parties concerned: Provided that in case the investigation is caused to be made based on a reference received from the Central Government or the State government or the statutory authority, the Commission shall forward a copy of the report referred to in sub-section (3) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prises which are parties to such agreements or abuse: [Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher.] (d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission; (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any; (g) pass such other 45[order or issue such directions] as it may deem fit. [Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause (b) of the Explanation to section 5 of the Act, and other members of such a group are also responsible for, or have contributed to, such a contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n document format, shall be forwarded to the Secretary within the time specified required. (6) If the Commission, on consideration of the report, is of the opinion that further investigation is called for, it may direct the Director-General to make further investigation and submit a supplementary report on specific issues within [such time as may be specified by the Commission but ordinarily not later than forty-five days]. 21. Procedure for inquiry under section 26 of the Act. - (1) On receipt of the report of the Director-General, the Secretary shall place the said report before the Commission [within seven days,] for further orders and, in accordance with the direction of the Commission, forward [either a hard or a soft copy (in electronic form)] [of non confidential version] thereof to the Central Government or the State Government or the statutory authority, or the parties concerned, as the case may be. (2) If the report of the Director-General finds no contravention of the provisions of the Act, the Secretary shall [within seven days,] convey the directions of the Commission for inviting objections or suggestions [to be filed within fifteen days] from the Central Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statutory authority or the parties concerned, or the report of further investigation or further inquiries, as the case may be, if the Commission is of the opinion that further inquiry is called for, the Secretary shall fix the meeting of the Commission for consideration thereof, after issue of notice as per regulation 22, to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (9) The Secretary shall keep the Director-General informed of the dates of the meetings of the Commission for inquiry under sub-section (7) or sub-section (8) of section 26 of the Act for appearing in person or through any of his officers in accordance with the provisions of section 35 of the Act. 12. Some of the above reproduced provisions were considered by a three judge Bench of the Supreme Court in Competition Commission of India vs. Steel Authority of India Limited ((2010) 10 SCC 744). In that case, the Commission had challenged the maintainability of an appeal filed by the respondent against an order passed under Section 26(1) of the Act. The Supreme Court analyzed the relevant provisions of the Act and the Regulations and laid down s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainability of an appeal filed against an order passed by the Commission under Section 26(1) of the Act, the observations contained in the judgment that the rule of audi alteram partem, which is one of the facets of the principles of natural justice is not applicable at the stage of formation of prima facie opinion by the Commission do not have any bearing on the interpretation of other provisions of the Act, more so because Section 36(1) of the Act explicitly provides that in discharge of its function the Commission shall be guided by the principles of natural justice. 14. A careful reading of Section 26(1) shows that once the Commission forms an opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter. In terms of Regulation 18 read with Regulation 20, the direction of the Commission is required to be communicated by its Secretary to the Director General along with a copy of the information or reference with all other documents or materials or affidavits or statements which have been filed with the information or reference or at the time of preliminary conference. Section 26(3) requires the Director Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 27 including an order for imposing penalty. 15. The exercise required to be undertaken by the Commission under Sections 26(7) or 26(8) read with the relevant regulations and an order passed under Section 27 which visits the concerned person with civil consequences makes the functions of the Commission adjudicatory/quasi judicial. Therefore, before recording an adverse finding against a person and holding him guilty of violating Section 3 or 4 of the Act, the Commission is obliged to comply with various facets of the principles of natural justice. This necessarily implies that while holding an inquiry under Section 26(7) or Section 26(8) the Commission is required to comply with the rule of audi alteram partem and give an effective opportunity of hearing to the person against whom a finding is likely to be recorded on the issue of contravention of Section 3 or Section 4 of the Act not only to controvert the allegation made against him as also the evidence/material proposed to be used in support of such allegation but also produced evidence to show that he/she/it has not violated any provision of the Act. If the Commission wants to rely upon some information/material, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because the writ petitioner had not been given a reasonable opportunity of showing cause against the proposed change in the date of birth recorded in her service book. While approving the second part of the High Court's order, the Supreme Court made the following observations: 9. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom in enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56. In this case itself the appellants were not made known as to what led the Deputy Commissioner to form an opinion that all relevant factors including the ones mentioned in Section 142(2A) of the Act are satisfied. If even one of them was not satisfied, no order could be passed. If the attention of the Commissioner could be drawn to the fact that the underlined purpose for appointment of the special auditor is not bona fide it might not have approved the same. (Underlining is mine) 20. In Kothari Filaments and another vs. Commissioner of Customs (Port), Kolkata and others ((2009) 2 SCC 192), the Supreme Court considered the correctness of an order passed by the Calcutta High Court dismissing the writ petition filed by the appellant against the order of the Customs, Excise and Gold (Control) Appellate Tribunal, Calcutta, which, in turn, approved the order of confiscation and penalty passed by the competent authority under the Customs Act, 1962. After noticing the fact that the appellant had not been given opportunity to explain the material used against it, the Supreme Court observed: 14. The statutory authorities under the Act exercise quasi-judicial function. By reason of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants. Since Shri K.S. Eswarappa was not a party to the proceedings, the Speaker should have caused service of copies of the same on the Appellants to enable them to meet the allegations made therein. 125. In our view, not only did the Speaker's action amount to denial of the principles of natural justice to the Appellants, but it also reveals a partisan trait in the Speaker's approach in disposing of the Disqualification Application filed by Shri B.S. Yeddyurappa. If the Speaker wished to rely on the statements of a third party which were adverse to the Appellants' interests, it was obligatory on his part to have given the Appellants an opportunity of questioning the deponent as to the veracity of the statements made in the affidavit. This conduct on the part of the Speaker is also indicative of the hot haste with which the Speaker disposed of the Disqualification Petition as complained of by the Appellants. 126. The question does, therefore, arise as to why the Speaker did not send copies of the affidavit affirmed and filed by Shri Eswarappa as also the affidavits of the two MLAs, who had originally withdrawn support to the Government led by Shri Yeddyurappa, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also: Union of India v. T.R. Varma, Meenglas Tea Estate v. Workmen, M/s. Kesoram Cotton Mills Ltd. v. Gangadhar Ors., New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr., Rachpal Singh Ors. v. Gurmit Singh Ors., Biecco Lawrie Anr. v. State of West Bengal Anr., and State of Uttar Pradesh v. Saroj Kumar Sinha). 25. In Lakshman Exports Ltd. v. Collector of Central Excise, this Court, while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e. permission with respect to the cross-examination of a witness. In the said case, the assessee had specifically asked to be allowed to cross-examine the representatives of the firms concern, to establish that the goods in question had been accounted for in their books of accounts, and that excise duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amount to a den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, to find the appellant guilty of contravention of the Competition Act has violated the tenets of audi alteram partem: (a) TRP ratings available at www.indiantelevision.com; (b) News reports relating to advertisement revenue earned by Sony Max from IPL as opposed to Doordarshan, for the Commonwealth Games; (c) News reports relating to the price of advertisement slots during a screening of a movie, 3 Idiots , the most expensive movie telecast on television (which assertion was based on the same news report) and general entertainment programmes such as Saath Nibhana Saathiya, in comparison with the prices for advertisement slots during the IPL; (d) News reports indicating an increase in revenue market shares of Set Max from pre-IPL to post-IPL; (e) KPMG-FICCI Report on Media and Entertainment in order to show the sports viewership is increasing in India; (f) TAM ratings to compare viewership of various sports events such as the Cricket World Cup in 2007, the Olympics in 2004, the FIFA World Cup in 2006, the World Series Hockey League, Grand Slam Tennis events and IPL 5; (g) TAM Ratings to show that the position of Set Max during IPL seasons increases to the top position, but this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Organization of Private Professional Cricket League/Events in India constituted the 'relevant market', but she has not disputed that in the order passed under Section 26(1), the Commission had clearly mentioned that its focus was on the underlying economic activities which are ancillary for the organization of sports events. She has also not disputed that the Director General made investigation keeping in view the allegations contained in the information and the points formulated by the Commission and recorded a finding that the 'relevant market' was underlying activities which are ancillary for organization of cricket in Twenty-20 format with respect to the IPL tournament. A careful scrutiny of the record reveals that while directing its Secretary to forward the report of the Director General to the appellant, the Commission had nowhere indicated that it did not agree with the finding recorded by the Director General on the issue of 'relevant market' and the appellant should show as to why Organization of Private Professional Cricket League/Events in India may not be treated as the 'relevant market'. It is, thus, evident that the appellant did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first place, the Secretary of the Commission has virtually admitted that the Commission relied on the so called information available in public domain without disclosing the same to the appellant. In my view the Commission's failure to disclose the information/material proposed to be used by it for arriving at a finding on the issue of abuse of dominance and give an opportunity to the appellant to explain/controvert the same has not only resulted in violation of the principles of natural justice but also occasioned failure of justice. 28. Secondly the so called information available in the public domain could not have been used by the Commission because no one had appeared in the witness box to prove the same. The information downloaded by the Commission from the internet and other similar sources can, at best be compared with newspaper report and it has been consistently held by the Supreme Court that such reports have no evidentiary value without further proof. In Samant N. Balakrishna v. George Fernandez ((1969) 3 SCC 238), the Supreme Court observed: ...A news item without any further proof of what had actually happened through witnesses is of no value. It is at best a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attributed to him based on the newspaper report are mere hearsay and cannot in law be relied upon for the purpose of initiating such proceedings. Therefore, in the absence of required legal proof, the Court will not be justified in issuing a suo moto notice for contempt of court. 32. In Quamarul Islam v. S.K. Kanta ((1994) Supp. 3 SCC 5), the question relating to admissibility of newspaper report was again considered and it was held: Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither the reporter who heard the speech and sent the report was examined nor even his reports produced, the production of the newspaper by the Editor and publisher, PW 4 by itself cannot amount to proving the contents of the newspaper reports. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Indian Evidence Act. The learned trial judge could not treat the newspaper reports as duly 'proved' only by the production of the copies of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it has held that any documentary evidence in the form of an electronic record can be proved only in accordance with the procedure prescribed under Section 65B of the Evidence Act. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia special bus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements Under Section 65B are satisfied. 36. By relying upon the above noted judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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