COMPETITION COMMISSION OF INDIAversusM/S FAST WAY TRANSMISSION PVT. LTD.

232                      [2018]REPORTS
               SUPREME COURT    1 S.C.R. 232               [2018] 2 S.C.R.


A                 COMPETITION COMMISSION OF INDIA
                                        v.
                M/S FAST WAY TRANSMISSION PVT. LTD.
                         (Civil Appeal No. 7215 of 2014)
B                             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
C
      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
D     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
E
      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
F     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
G
      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
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  COMPETITION COMMISSION OF INDIA v. M/S FAST WAY                          233
              TRANSMISSION PVT. LTD.

terminating the agreement with the broadcaster in mid-stream –             A
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.
                                                                           B
       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           C
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            D
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.
                                                                           E
      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         F
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,             G
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
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234            SUPREME COURT REPORTS                       [2018] 2 S.C.R.


A     the economic development of the country as a whole. [Para
      7][246-C-E]
             2. On the facts of the present case, it is clear that “dominant
      position” is clearly made out. The Explanation to Section 4
      specifically refers to a position of strength that is enjoyed by an
B     enterprise or group thereof in the relevant market, which, as is
      stated hereinbefore, is Punjab and Chandigarh, in the Cable TV
      market, which enables respondents no. 1-4 to operate
      independently of competitive forces prevailing in the relevant
      market. The Commission has found, on facts, that since the
      aforesaid MSOs group has 85% of the subscribers share in the
C     aforesaid cable TV market in the State of Punjab and Chandigarh,
      and that they are able to operate independently of competitive
      forces prevailing in the aforesaid market. This finding has not
      been set aside by the Appellate Tribunal. Also, the respondent
      would fall within Explanation (a)(ii) as well, though it is enough
D     that it would fall within sub-section a(i) of the Explanation. Sub-
      section (ii) refers to a position of strength as enjoyed by the
      respondents which enables them to affect consumers in its favour.
      [Para 8][246-E-H]
             3. Relying upon the definition in Section 2(f)(ii), the
E     appellant correctly argued that a broadcaster would certainly fall
      within the wide language contained in the aforesaid sub-section.
      Further, in all fairness the respondent has agreed with the same.
      This being the case, it is clear that as both sub-sections (i) and
      (ii) of clause (a) of the Explanation apply, the respondent could
      be said to be in a “dominant position”, for the purpose of Section
F     4, in the facts of the present case. [Para 9][247-A-B]
            4. Insofar as the question as to whether there is an abuse
      of such dominant position under Section 4(2)(c) where the
      respondent could be stated to have indulged in a practice resulting
      in denial of market access in any manner, it can be seen that in
G     the facts of the case, the broadcaster, namely respondent No. 5,
      had a broadcast agreement which was entered into for a period of
      one year. This was sought to be terminated within the aforesaid
      period by the respondent by notices. The TDSAT has, by its
      order adverted to Regulation 4.2 of the relevant
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  COMPETITION COMMISSION OF INDIA v. M/S FAST WAY                       235
              TRANSMISSION PVT. LTD.

Telecommunication (Broadcasting and Cable Services)                     A
Interconnection Regulations, 2004 and has found that the
respondents have not followed the aforesaid regulations, inasmuch
as no reasons for termination have been given in the notices of
termination. This being the case, it is clear that, on the present
facts, there is an abuse of the dominant position enjoyed by the
                                                                        B
respondents 1-4 (MSOs) only for the reason that the broadcaster
was denied access to market. The words “in any manner” are
words of wide import and must be given their natural meaning.
This being the case, it is difficult to appreciate the reasoning of
the Appellate Tribunal that, as the broadcaster and MSOs are
not in competition with one another, the provisions of Sections 3       C
and 4 do not get attracted. The “dominant position” held by the
respondent MSOs is clearly established for the purpose of Section
4 in the present case, and the Commission finding in that behalf
is also not set aside by the Appellate Tribunal. If this be so, then
once a dominant position is made out on facts, whether a
                                                                        D
broadcaster is in competition with MSOs is a factor that is
irrelevant for the purpose of application of Section 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 respondents 1-4 (MSOs). [Paras 10, 11][247-C-H]                     E
       5. A perusal of the average GRP chart would show that the
GRP given to the news channel ‘Day and Night’ is much lower
than that given to any other channel, and that the respondent
was correct in stating that this was the reason for terminating the
agreement with the broadcaster in mid-stream. Though, on the            F
facts of this case, Section 4(2)(c) has been breached, yet the reason
given by respondents 1 to 4 (MSOs) for termination being
otherwise justifiable, no penalty should be levied on the facts of
the present case. [Para 13][248-G-H]
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7215               G
of 2014.
     From the Judgment and Order dated 02.05.2014 of the Competition
Appellate Tribunal, New Delhi in Appeal No. 116 of 2012.
     P. S. Narsimha, ASG, Mrs. Suchitra A. Chitale, Ms. Tanvi Kakar,
Gurjyot Sethi, Ms. Jayati Atul Chitale, Advs. for the Appellant.        H
236             SUPREME COURT REPORTS                             [2018] 2 S.C.R.


A            Meet Malhotra, Sr. Adv., Vaibhav Gaggar, G. S. Oberoi, Ms. Reena
      Rathore, Ms. Smriti Jain, Ms. Shweta Rath, Mrs. Pragya Baghel, Advs.
      for the Respondents.
             The Judgment of the Court was delivered by
            R. F. NARIMAN, J. 1. The present appeal by the Competition
B     Commission of India raises several interesting questions relating to its
      functions under the Competition Act, 2002. The brief facts necessary to
      appreciate the controversy which arises in the present case are as follows:
              An agreement dated 1stAugust, 2010 was entered into between
      respondent no.5, who was the broadcaster of a News Channel called
C     “Day & Night News”, and respondent No.1 to 4 who are Multi System
      Operators (hereinafter referred to as “MSOs”) who carried the aforesaid
      channel to persons who watch Cable T.V. A channel placement
      agreement was entered into, on the same day, between the broadcaster
      and the MSOs, all of which are stated to belong to the Fast Away Group.
D     By notices of termination dated 19 thJanuary, 2011, the aforesaid
      agreements were terminated by relying on a clause of the said
      agreements which entitled them to do so on the mere giving of a thirty
      day notice. This being the case, respondent no.5 complained about the
      aforesaid termination. The Director General of Investigation looked
      into the complaint of the broadcaster, investigated the matter, and ultimately
E     delivered its report to the Competition Commission, in which it found
      that the said MSOs indulged in practices which were violative of Sections
      3 and 4 of the Competition Commission Act, 2002. Going by this report,
      and after hearing the parties to the dispute, the Competition Commission,
      by its detailed order dated 3rdJuly, 2012, first held that according to it, the
F     relevant market to be looked at for the purpose of Sections 3 and 4
      would be the State of Punjab and Chandigarh. Having regard to this
      market, so far as Cable TV was concerned, a finding was entered stating
      that the MSO group had 85% of the subscriber share in that market, and
      was therefore, in a dominant position which could be misused. Ultimately,
      it found on facts that the group had never terminated any such similar
G     agreement before the due date except in the instant case, and also found
      that this could not be said to be due to low TRP ratings, inasmuch as the
      complainant’s TRP rating was almost equal to that of some other channels.
      The Commission then went on to find as follows:
             “6.4.9 The evidences as above confirm that there were disruptions
H            in the telecast of the channel. The Commission further observes
COMPETITION COMMISSION OF INDIA v. M/S FAST WAY                               237
   TRANSMISSION PVT. LTD. [R. F. NARIMAN, J.]

  that the OP has argued that as per TRAI regulations it is not               A
  bound by “must carry”, as against the informant who is bound by
  a “must provide” provision. However, the argument of the OP
  group does not take away the fact that the informant is dependent
  on it for transmission of its channel and if it is denied that, it cannot
  get access to the market. It is not that the informant was not
                                                                              B
  paying the placement fee charged by the OP group. There was
  no dispute on non-payment of placement or carriage charges. An
  agreement was duly executed between the informant and the OP
  group for transmission of the channels of the former.
  6.4.10 However, due to the fact that the subscriber base of the
  OPs is in excess of 40 lacs, every broadcaster including the                C
  informant dependent upon their network. In such a situation, the
  Commission observes that the OP is in position to affect the market
  in its favour. Due to its market power, the OP group has denied
  the opportunity for transmission of channel of the informant. The
  group has no justification for termination of the agreement and its         D
  argument for justifying its conduct is not based on any sound
  footings. Its argument regarding shortage of spectrum for non-
  transmission of the informant’s channel in face of the fact that
  the spectrum constraint might have been considered at the time
  of entering into agreement with the informant upon charge of
  premium from the broadcaster. Once that was considered, the                 E
  question of shortage of spectrum during the period of the agreement
  does not arise. Similarly, the argument of low TRP is also not
  justified since in past there has been no practice of review of any
  agreement on the basis of TRP ratings in the middle of an
  agreement. The Commission observes that the argument of                     F
  spectrum shortage and low TRP is merely an afterthought to justify
  its conduct.
  6.4.11 The conduct of OP has resulted in loss to the informant-
  broadcaster as well as denial of services to the consumers who
  want to watch the channel of the informant. As on date the                  G
  Informant has access to only 56,000 households on the cable TV
  in the state of Punjab & Chandigarh, where about 45 lacs
  households are connected on cable network. Thus, the informant
  has been effectively wiped out from the entire relevant market by
  the conduct of OPs.
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238            SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A           6.4.12 In the light of the facts and circumstances of this case the
            Commission observes that due to the acts of the OP group the
            informant has been denied the market access and opportunity to
            compete and holds that violation of the provisions of section 4(2)
            (c) of the Act gets established.”
B           2. Given the aforesaid finding, the Commission thereafter imposed
      a penalty in exercise of its power under Section 27 of the Act of
      Rs.8,40,01,141/-.
             3. The appeal by the MSOs group to the Appellate Tribunal found
      favour with the aforesaid Tribunal. Essentially, the Tribunal’s finding
C     was that the denial of market access under Section 4(2)(c) can only be
      by one competitor against another, and that as a broadcaster cannot be
      said to compete with MSOs, there would be no violation of either Section
      3 or Section 4 of the Act. On this short ground the appeal stood allowed.
             4. Shri P.S. Narsimha, learned Additional Solicitor General,
D     appearing on behalf of the Competition Commission, who is the sole
      appellant before us, has argued that the role of the Competition
      Commission is delineated in the preamble read with certain provisions of
      the Act, as a positive one. The Commission has to prevent practices
      having an adverse effect on competition, to promote and sustain
      competition in markets, as also to protect the interest of consumers, so
E     that freedom of trade is ensured which in turn leads to healthy economic
      development of the nation as a whole. Viewed in this light, and after
      referring to certain other provisions of the Act, the learned Additional
      Solicitor General argued that the Appellate Tribunal has construed the
      Act in a constricted manner which would impede the Commissions’
F     functioning in future cases. With his usual fairness, he has left it to the
      court to decide the amount of penalty that ought to be imposed on the
      facts of the case.
             5. Learned senior counsel appearing on behalf of the respondent
      MSOs has been equally fair to the Court, and has brought to our notice
G     the judgment of the Telecom Disputes and Settlement Appellate Tribunal
      (TDSAT) dated 25th April, 2012 in which this very termination by the
      MSOs in the present case was held to be unlawful, in that Regulation
      4.2 of the Telecommunication (Broadcasting and Cable Services)
      Interconnection Regulations, 2004 was breached. Clause 4.2 of the
      aforesaid Regulation, which overrides agreements between the parties,
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  COMPETITION COMMISSION OF INDIA v. M/S FAST WAY                             239
     TRANSMISSION PVT. LTD. [R. F. NARIMAN, J.]

specifically speaks about a three weeknotice to the broadcaster clearly       A
giving reasons for the proposed action of effacing transmission of a TV
channel by the aforesaid MSOs. The notice of termination dated
19thJanuary, 2011 do not conform to the aforesaid Regulation as reasons
for the proposed termination have not been given. He further argues
that no case for penalty has been made out against his clients for the
                                                                              B
reason that at the relevant time, the analogue platform was used, and
the operational capacity of such platform was only for 80 channels as
against the existing channels of about 550. He went on to add that the
TRP ratings of the broadcaster, namely, respondent No. 5, was the lowest
by far among all other news channels, getting a rating of only 3.8 as
against the lowest rated news channel, which was MH Channel, of 7.            C
This, according to him, was because of an experiment conducted by
respondent No. 5 which failed, because it broadcast news in three
different languages, and since most of the viewers were not familiar
with each of these languages, the channel failed and respondent No. 5
was no longer in business. Therefore, according to him, even though
                                                                              D
technically speaking, Regulation 4.2 was breached, yet a notice of
termination could have been given stating the aforesaid reasons as to
why the agreement between the MSOs and the broadcaster was
terminated. This being the case it is clear that the termination of the
agreement did not take place because of the MSOs dominant position in
the market, but because of the factors aforestated. In his view, therefore,   E
this is not a case in which penalty should have been imposed.
      We have heard learned counsel for the parties.
     6. It is important to advert first to the provisions of the Act. The
Preamble to the Act reads as under:
                                                                              F
      “An Act to provide, keeping in view of the economic development
      of the country, for the establishment of a Commission to prevent
      practices having adverse effect on competition, to promote and
      sustain competition in markets, to protect the interests of
      consumers and to ensure freedom of trade carried on by other
      participants in markets, in India, and for matters connected            G
      therewith or incidental thereto.
      Section 2 Definitions-
      In this Act, unless the context otherwise requires,-
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240      SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A     (b) “agreement” includes any arrangement or understanding or
      action in concert,-
      (i) whether or not, such arrangement, understanding or action is
      formal or in writing; or
      (ii) whether or not such arrangement, understanding or action is
B     intended to be enforceable by legal proceedings;
      (f) “consumer” means any person who-
      (i) buys any goods for a consideration which has been paid or
      promised or partly paid and partly promised, or under any system
C     of deferred payment and includes any user of such goods other
      than the person who buys such goods for consideration paid or
      promised or partly paid or partly promised, or under any system
      of deferred payment when such use is made with the approval of
      such person, whether such purchase of goods is for resale or for
      any commercial purpose or for personal use;
D
      (ii) hires or avails of any services for a consideration which has
      been paid or promised or partly paid and partly promised, or under
      any system of deferred payment and includes any beneficiary of
      such services other than the person who hires or avails of the
      services for consideration paid or promised, or partly paid and
E     partly promised, or under any system of deferred payment, when
      such services are availed of with the approval of the first-mentioned
      person whether such hiring or availing of services is for any
      commercial purpose or for personal use;
      (m) “practice” includes any practice relating to the carrying on of
F     any trade by a person or an enterprise;
      (r) “relevant market” means the market which may be determined
      by the Commission with reference to the relevant product market
      or the relevant geographic market or with reference to both the
      markets;
G     Section 4 Abuse of dominant position-
      (1) No enterprise or group shall abuse its dominant position.
      (2) There shall be an abuse of dominant position under sub-section
      (1), if an enterprise or a group-
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COMPETITION COMMISSION OF INDIA v. M/S FAST WAY                            241
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  (a) directly or indirectly, imposes unfair or discriminatory-            A
  (i) condition in purchase or sale of goods or service; or
  (ii) price in purchase or sale (including predatory price) of goods
  or service.
  Explanation- For the purposes of this clause, the unfair or              B
  discriminatory condition in purchase or sale of goods or services
  referred to in sub-clause (i) and unfair or discriminatory price in
  purchase or sale of goods (including predatory price) or service
  referred to in sub-clause (ii) shall not include such discriminatory
  conditions or prices which may be adopted to meet the competition;
  or                                                                       C

  (b) limits or restricts-
  (i) production of goods or provision of services or market therefor;
  or
  (ii) technical or scientific development relating to goods or services   D
  to the prejudice of consumers; or
  (c) indulges in practice or practices resulting in denial of market
  access in any manner; or
  (d) makes conclusion of contracts subject to acceptance by other
                                                                           E
  parties of supplementary obligations which, by their nature or
  according to commercial usage, have no connection with the subject
  of such contracts; or
  (e) uses its dominant position in one relevant market to enter into,
  or protect, other relevant market.
                                                                           F
  Explanation- For the purposes of this section, the expression-
  (a) “dominant position” means a position of strength, enjoyed by
  an enterprise, in the relevant market, in India, which enables it
  to—
  (i) operate independently of competitive forces prevailing in the        G
  relevant market; or
  (ii) affect its competitors or consumers or the relevant market in
  its favour;

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242      SUPREME COURT REPORTS                            [2018] 2 S.C.R.


A     (b) “predatory price” means the sale of goods or provision of
      services, at a price which is below the cost, as may be determined
      by regulations, of production of the goods or provision of services,
      with a view to reduce competition or eliminate the competitors.
      (c) “group” shall have the same meaning as assigned to it in clause
B     (b) of the Explanation to section 5.
      Section 18 Duties of Commission-
      Subject to the provisions of this Act, it shall be the duty of the
      Commission to eliminate practices having adverse effect on
      competition, promote and sustain competition, protect the interests
C     of consumers and ensure freedom of trade carried on by other
      participants, in markets in India:
      Provided that the Commission may, for the purpose of discharging
      its duties or performing its functions under this Act, enter into any
      memorandum or arrangement with the prior approval of the Central
D     Government, with any agency of any foreign country.
      Section 19 Inquiry into certain agreements and dominant
      position of enterprise-
      (1) The Commission may inquire into any alleged contravention
      of the provisions contained in sub-section (1) of section 3 or sub-
E
      section (1) of section 4 either on its own motion or on—
      xxxxxxxxxxxx
      (4) The Commission shall, while inquiring whether an enterprise
      enjoys a dominant position or not under section 4, have due regard
F     to all or any of the following factors, namely:-
      (a) market share of the enterprise;
      (b) size and resources of the enterprise;
      (c) size and importance of the competitors;
G     (d) economic power of the enterprise including commercial
      advantages over competitors;
      (e) vertical integration of the enterprises or sale or service network
      of such enterprises;
      (f) dependence of consumers on the enterprise;
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COMPETITION COMMISSION OF INDIA v. M/S FAST WAY                             243
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  (g) monopoly or dominant position whether acquired as a result of         A
  any statute or by virtue of being a Government company or a
  public sector undertaking or otherwise;
  (h) entry barriers including barriers such as regulatory barriers,
  financial risk, high capital cost of entry, marketing entry barriers,
  technical entry barriers, economies of scale, high cost of                B
  substitutable goods or service for consumers;
  (i) countervailing buying power;
  (j) market structure and size of market;
  (k) social obligations and social costs;                                  C
  (l) relative advantage, by way of the contribution to the economic
  development, by the enterprise enjoying a dominant position having
  or likely to have an appreciable adverse effect on competition;
  (m) any other factor which the Commission may consider relevant
  for the inquiry.                                                          D
  Section 27 Orders by Commission after inquiry into
  agreements or abuse of dominant position-
  Where after inquiry the Commission finds that any agreement
  referred to in section 3 or action of an enterprise in a dominant
  position, is in contravention of section 3 or section 4, as the case      E
  may be, it may pass all or any of the following orders, namely:-
  (a) direct any enterprise or association of enterprises or person or
  association of persons, as the case may be, involved in such
  agreement, or abuse of dominant position, to discontinue and not
  to re-enter such agreement or discontinue such abuse of dominant          F
  position, as the case may be;
  (b) impose such penalty, as it may deem fit which shall be not
  more than ten per cent of the average of the turnover for the last
  three preceding financial years, upon each of such person or
  enterprises which are parties to such agreements or abuse:                G

  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
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244      SUPREME COURT REPORTS                            [2018] 2 S.C.R.


A     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
B     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 order or issue such directions as it may deem
C     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,
D     and other members of such a group are also responsible for, or
      have contributed to, such a contravention, then it may pass orders,
      under this section, against such members of the group.
      Section 41 Director General to investigate contravention-
      (1) The Director General shall, when so directed by the
E
      Commission, assist the Commission in investigating into any
      contravention of the provisions of this Act or any rules or regulations
      made thereunder.
      (2) The Director General shall have all the powers as are conferred
      upon the Commission under sub-section (2) of section 36.
F
      (3) Without prejudice to the provisions of sub-section (2), sections
      240 and 240A of the Companies Act, 1956 (1 of 1956), so far as
      may be, shall apply to an investigation made by the Director
      General or any other person investigating under his authority, as
      they apply to an inspector appointed under that Act.
G
      Explanation- For the purposes of this section,-
      (a) the words “the Central Government” under section 240 of the
      Companies Act, 1956 (1 of 1956) shall be construed as “the
      Commission”;
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COMPETITION COMMISSION OF INDIA v. M/S FAST WAY                             245
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  (b) the word “Magistrate” under section 240A of the Companies             A
  Act, 1956 (1 of 1956) shall be construed as “the Chief Metropolitan
  Magistrate, Delhi”.
  Section 53B Appeal to Appellate Tribunal-
  (1) The Central Government or the State Government or a local
  authority or enterprise or any person, aggrieved by any direction,        B
  decision or order referred to in clause (a) of section 53A may
  prefer an appeal to the Appellate Tribunal.
  (2) Every appeal under sub-section (1) shall be filed within a period
  of sixty days from the date on which a copy of the direction or
  decision or order made by the Commission is received by the               C
  Central Government or the State Government or a local authority
  or enterprise or any person referred to in that sub-section and it
  shall be in such form and be accompanied by such fee as may be
  prescribed:
  Provided that the Appellate Tribunal may entertain an appeal after        D
  the expiry of the said period of sixty days if it is satisfied that
  there was sufficient cause for not filing it within that period.
  (3) On receipt of an appeal under sub-section (1), the Appellate
  Tribunal may, after giving the parties to the appeal, an opportunity
  of being heard, pass such orders thereon as it thinks fit, confirming,    E
  modifying or setting aside the direction, decision or order appealed
  against.
  (4) The Appellate Tribunal shall send a copy of every order made
  by it to the Commission and the parties to the appeal.
                                                                            F
  (5) The appeal filed before the Appellate Tribunal under sub-section
  (1) shall be dealt with by it as expeditiously as possible and endeavor
  shall be made by it to dispose of the appeal within six months
  from the date of receipt of the appeal.
  Section 53T Appeal to Supreme Court-
                                                                            G
  The Central Government or any State Government or the
  Commission or any statutory authority or any local authority or
  any enterprise or any person aggrieved by any decision or order
  of the Appellate Tribunal may file an appeal to the Supreme Court
  within sixty days from the date of communication of the decision
  or order of the Appellate Tribunal to them:                               H
246             SUPREME COURT REPORTS                            [2018] 2 S.C.R.


A           Provided that the Supreme Court may, if it is satisfied that the
            applicant was prevented by sufficient cause from filing the appeal
            within the said period, allow it to be filed after the expiry of the
            said period of sixty days.
            Section 60 Act to have overriding effect-
B           The provisions of this Act shall have effect notwithstanding
            anything inconsistent therewith contained in any other law for the
            time being in force.”
              7. The Preamble of the Act, read with the aforesaid provisions,
      would show that the Commission set up by the Competition Act certainly
C     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
D     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
      the economic development of the country as a whole.
E
             8. On the facts of the present case, it is clear that as “dominant
      position” is clearly made out. The Explanation to Section 4 specifically
      refers to a position of strength that is enjoyed by an enterprise or group
      thereof in the relevant market, which, as is stated hereinbefore, is Punjab
      and Chandigarh, in the Cable TV market, which enables respondents
F     no. 1-4 to operate independently of competitive forces prevailing in the
      relevant market. The Commission has found, on facts, that since the
      aforesaid MSOs group has 85% of the subscribers share in the aforesaid
      cable TV market in the State of Punjab and Chandigarh, and that they
      are able to operate independently of competitive forces prevailing in the
G     aforesaid market. This finding has notbeen set aside by the Appellate
      Tribunal. Also, the respondent would fall within Explanation (a)(ii) as
      well, though it is enough that it would fall within sub-section a(i) of the
      Explanation. Sub-section (ii) refers to a position of strength as enjoyed
      by the respondents which enables them to affect consumers in its favour.

H
  COMPETITION COMMISSION OF INDIA v. M/S FAST WAY                              247
     TRANSMISSION PVT. LTD. [R. F. NARIMAN, J.]

       9. Replying upon the definition in Section 2(f)(ii), ShriNarsimha,      A
learned ASG has, in our view, correctly argued that a broadcaster would
certainly fall within the wide language contained in the aforesaid sub-
section. We may also add that in all fairness the learned counsel for the
respondent has agreed with the same. This being the case, it is clear
that as both sub-sections (i) and (ii) of clause (a) of the Explanation
                                                                               B
apply, the respondent could be said to be in a “dominant position”, for the
purpose of Section 4, in the facts of the present case.
      10. The question which now arises is whether there is an abuse
of such dominant position under Section 4(2)(c) where the respondent
could be stated to have indulged in a practice resulting in denial of market
access in any manner.                                                          C

       11. It can be seen that in the facts of the case, the broadcaster,
namely respondent No. 5, had a broadcast agreement which was entered
into for a period of one year from 1stAugust, 2010. This was sought to
be terminated within the aforesaid period by the respondent by notices
dated 19thJanuary, 2011. The TDSAT has, by its order dated 25thApril,          D
2012, adverted to Regulation 4.2 of the relevant Telecom Regulations,
and has found that the respondents have not followed the aforesaid
regulations, inasmuch as no reasons for termination have been given in
the notices of termination. This being the case, it is clear that, on the
present facts, there is an abuse of the dominant position enjoyed by the       E
respondents 1-4 only for the reason that the broadcaster was denied
market access on and after 19thFebruary, 2011 until 1st August, 2011.
The words “in any manner” one of wide import and must be given their
natural meaning. This being the case, it is difficult to appreciate the
reasoning of the Appellate Tribunal that, as the broadcaster and MSOs
are not in competition with one another, the provisions of Sections 3 and      F
4 do not get attracted. As has been held by us, the “dominant position”
held by the respondent MSOs is clearly established for the purpose of
Section 4 in the present case, and the Commission finding in that behalf
is also not set aside by the Appellate Tribunal. If this be so, then once a
dominant position is made out on facts, whether a broadcaster is in            G
competition with MSOs is a factor that is irrelevant for the purpose of
application of Section 4(2)(c) which, as has been found by us, 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 respondents 1-4.
                                                                               H
248            SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A           12. Having said this, however, we are of the view that no penalty
      ought to have been imposed on the facts of the present case. The
      finding of the Competition Commission that TRP rating of the broadcaster
      was not so low as it was almost equal to that of other channels, is not
      correct. In the counter affidavit filed before us by the respondent, they
      have specifically stated the TAM ratings of the respondent channel, as
B
      opposed to other news channels, from the month of September 2010 to
      January 2011, were as follows:
              S.No.    Name of the Channel         Average GRP of
                                                   the C hannel during
C                                                  five month period
                                                   (Sept.’10 – Jan.’11)

              1.       AAJ TAK                     33.6

              2.       Day and Night News          3.8
D
              3.       IBN7                        24.7

              4.       MH1 News                    7.0

              5.       NDTV India                  22.5
E
              6.       PTC News                    35.6

              7.       Star News                   27.9

              8.       Zee News                    21.5
F

             13. A perusal of the aforesaid chart would show that the GRP
      given to the news channel ‘Day and Night’ is much lower than that
      given to any other channel, and that learned senior counsel for the
G     respondent was correct in stating that this was the reason for terminating
      the agreement with the broadcaster in mid-stream. Though we find
      that, on the facts of this case, Section 4(2)(c) has been breached, yet the
      reason given by respondents 1 to 4 for termination being otherwise
      justifiable, we feel that no penalty should be levied on the facts of the
      present case.
H
       COMPETITION COMMISSION OF INDIA v. M/S FAST WAY                          249
          TRANSMISSION PVT. LTD. [R. F. NARIMAN, J.]

          14. The appeal is accordingly allowed, and the judgment of the        A
     Appellate Tribunal, as well as the penalty imposed by the Competition
     Commission, both stand set aside.


     Ankit Gyan                                               Appeal allowed.
                                                                                B



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