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Sunday, March 19, 2017

When the lenses of the reasoning process are duly adjusted with their focus on the picture, the picture gets sharpened and haziness disappears. One can clearly view that prohibition on the exhibition of dubbed serial on the television prevented the competing parties in pursuing their commercial activities. Thus, the CCI rightly observed that the protection in the name of the language goes against the interest of the competition, depriving the consumers of exercising their choice. Acts of Coordination Committee definitely caused harm to consumers by depriving them from watching the dubbed serial on TV channel; albeit for a brief period. It also hindered competition in the market by barring dubbed TV serials from exhibition on TV channels in the State of West Bengal. It amounted to creating barriers to the entry of new content in the said dubbed TV serial. Such act and conduct also limited the supply of serial dubbed in Bangla, which amounts to violation of the provision of Section 3(3)(b) of the Act.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 6691 OF 2014


|COMPETITION COMMISSION OF INDIA            |…APPELLANT                   |
|VERSUS                                     |                             |
|CO-ORDINATION COMMITTEE OF ARTISTS AND     |                             |
|TECHNICIANS OF W.B. FILM AND TELEVISION AND|                             |
|ORS.                                       |...RESPONDENTS               |


                               J U D G M E N T


A.K. SIKRI, J.

                 This appeal raises an interesting  and  important  question
of law touching upon the width and scope of jurisdiction of the  Competition
Commission  of  India  (for  short,  the  ‘CCI’)  under  Section  3  of  the
Competition Act, 2002 (hereinafter referred to as  the  'Act').   Before  we
mention the nuances of the issue  that  has  arisen  for  consideration,  it
would be apposite to take stock of the  background  facts  under  which  the
issue needs determination, as the factual canvass would provide  clarity  of
the situation that has led to the dispute between the  parties.   Respondent
No. 2 herein, Mr. Sajjan Kumar Khaitan,  is  the  proprietor  of  M/s.  Hart
Video having his establishment  in  Kolkata.   He  is  in  the  business  of
distributing video  cinematographic  TV  serials  and  telecasting  regional
serials in the States of Eastern India, which includes  the  State  of  West
Bengal.  M/s. BRTV, Mumbai, which is the producer of  T.V.  programmes,  had
produced T.V. Serial named 'Mahabharat', original  version  whereof  was  in
Hindi.   The  said  BRTV  entrusted  the  sole  and  exclusive   rights   of
‘Mahabharat’ to M/s. Magnum T.V. Serials to dub the  Hindi  version  of  the
said serial in Bangla with further rights to exploit its Satellite, Pay  TV,
DTH, IPTV, Video,  Cable  TV  and  internet  rights  till  September,  2016.
Magnum TV, in turn, appointed Hart Video as  the  sub-assigner  to  dub  the
said serial 'Mahabharat' in Bangla language, which it did.  Thereafter,  for
the purposes of  telecasting  the  said  dubbed  serial,  an  agreement  was
executed for the time slot, on  revenue  sharing  basis,  with  M/s.  Bengal
Media Pvt. Ltd., Kolkata, which is the owner of 'Channel  10',  as  well  as
with M/s. Calcutta Television Network Private Ltd., Kolkata,  which  is  the
owner of CTVN+ Channel.  These two channels were given hard  disks  of  four
episodes of the serial on 2nd February, 2011 and 12th  February,  2011.   An
advertisement  was  placed  in  Daily  Newspapers  on  19th  February,  2011
informing the public at large that serial 'Mahabharat' would be telecast  in
Bangla on Channel 10 at 10.00 a.m. in the morning  and  on  CTVN+  at  10.00
p.m. every Sunday.

Certain producers  in  Eastern  India  have  formed  an  association  called
Eastern India Motion Picture Association (for  short,  'EIMPA').   Likewise,
the artists and technicians of film and television industry in  West  Bengal
have formed an association known as 'Committee of  Artists  and  Technicians
of West Bengal Film and Television Investors  (hereinafter  referred  to  as
the 'Coordination Committee').

Telecasting of serial ‘Mahabharat’ in Bangla after dubbing it  in  the  said
language from the original produced Hindi  language  was  not  palatable  to
EIMPA or the Coordination Committee.  In their perception, serials  produced
in other languages and shown on the T.V.  Channels  after  dubbing  them  in
Bangla would affect the producers of that origin and, in  turn,  would  also
adversely affect the artists and technicians working in  West  Bengal.   The
apprehension was that it may deter production  of  such  serials  in  Bangla
because of the entry of serials produced in other  languages  and  shown  to
the public by dubbing the same in their language.  Because of  this  reason,
on 18th February,  2011  CTVN+  received  a  letter  from  the  Coordination
Committee to stop the telecast of the dubbed  serial  ‘Mahabharat’.   Letter
dated 1st March, 2011 to the similar effect was written by EIMPA  to  CTVN+.
Identical demands were made to this Channel by  the  Coordination  Committee
as well.  It was stated in this letter that such a  step  was  necessary  in
the interest of healthy growth of  film  and  television  industry  in  West
Bengal.  It was also alleged that for the last thirteen years  there  was  a
convention and practice adopted in the said region not to dub any  programme
from other languages in Bangla and telecast them in  West  Bengal.    Threat
was also extended to CTVN+ as well as Channel 10 that in case  the  telecast
is not stopped, their channels would face  non-cooperation  from  these  two
bodies, i.e., EIMPA and the Coordination Committee.

When Mr. Sajjan Khaitan (Respondent No. 2), Proprietor of M/s.  Hart  Video,
came to know of the aforesaid developments and the threat extended to  CTVN+
and Channel 10 and found that these two television channels  were  going  to
succumb to those pressures, he informed the CCI  of  the  aforesaid  details
and requested the CCI to take action in the matter,  as  according  to  him,
the aforesaid act  on  the  part  of  EIMPA  as  well  as  the  Coordination
Committee contravened the provisions of the Act.   Even  an  interim  relief
was sought in the nature of direction from CCI to CTVN+ and Channel  10  not
to yield to the threats of EIMPA and Coordination Committee and restart  the
telecast  of  the  serial  which  was  stopped  since  17th   April,   2011.
Hereafter, Respondent No. 2 shall be described as the ‘informant’.

The CCI, after  receiving  the  aforesaid  information  from  the  informant
formed  a  prima  facie  opinion  that  acts  on  the  part  of  EIMPA   and
Coordination  Committee  were  anti-competitive.  Accordingly,  matter   was
assigned to the Director General (DG) for detailed investigation as per  the
procedure prescribed in the Act. On investigation, the  DG  found  that  the
details  contained  in  the  information  supplied  by  the  informant  were
factually correct.  On that basis, he examined the matter in the context  of
provisions contained in the Act.

In order to understand with clarity the task undertaken and accomplished  by
the DG, we deem it proper to refer to some of  the  relevant  provisions  of
the Act at this stage. Chapter II of the  Act  deals  with  'prohibition  of
certain  agreements,  abuse  of  dominant   position   and   regulation   of
combinations'.  It comprises of Sections 3 to 6.  Section 3 deals with anti-
competitive agreements  and  Section  4  prohibits  the  abuse  of  dominant
position.  Section 5, on the other hand, takes care  of  those  acquisitions
and mergers which have the potential to become  anti-competitive  or  attain
dominant position, with threat to  abuse  the  said  position  in  order  to
control such acquisition  and  mergers.   Section  6  empowers  the  CCI  to
regulate those combinations which are stipulated  under  Section  5.   Thus,
this Chapter deals  with  three  kinds  of  practices  which  may  be  anti-
competitive, viz., agreements which may turn  out  to  be  anti-competitive;
abusive use of dominant position by those enterprises or groups which  enjoy
such  dominant  position  as  defined  in  the  Act;  and   regulations   of
combination of enterprises by means of  mergers  or  amalgamations  so  that
they do not become anti-competitive or abuse  the  dominant  position  which
they can attain.

The scheme of this Chapter, therefore, is  to  ensure  fair  competition  by
prohibiting trade practices  which  cause  appreciable  adverse  effects  in
competition in markets within India. This task of curbing  negative  aspects
of competition is assigned to CCI.   In  the  present  case,  since  we  are
concerned with the issue as to whether EIMPA and/or  Coordination  Committee
resorted to any anti-competitive agreement, it  will  be  apposite  to  scan
through Section 3 of the  Act  and  other  provisions  which  revolve  there
around.  Section 3 reads as under :
“ 3. Anti-competitive agreements :  (1)  No  enterprise  or  association  of
enterprises or person  or  association  of  persons  shall  enter  into  any
agreement  in  respect  of  production,   supply,   distribution,   storage,
acquisition or control of goods or provision of services,  which  causes  or
is likely to cause an  appreciable  adverse  effect  on  competition  within
India.

(2)    Any  agreement  entered  into  in  contravention  of  the  provisions
contained in subsection (1) shall be void.

(3)    Any agreement entered into between  enterprises  or  associations  of
enterprises or persons or associations of persons or between any person  and
enterprise or practice carried on, or decision taken by, any association  of
enterprises  or  association  of  persons,  including  cartels,  engaged  in
identical or similar trade of goods or provision of services, which—

(a)    directly or indirectly determines purchase or sale prices;

(b)     limits  or   controls   production,   supply,   markets,   technical
development, investment or provision of services;

(c)    shares the market or source of production or  provision  of  services
by way of allocation of geographical area of market, or  type  of  goods  or
services, or number of customers in the market or any other similar way;

(d)    directly or indirectly results in bid rigging or  collusive  bidding,
shall be presumed to have an appreciable adverse effect on competition:

Provided that nothing contained in  this  sub-section  shall  apply  to  any
agreement entered into by way of joint ventures if such agreement  increases
efficiency    in   production,      supply,      distribution,      storage,
acquisition or control of goods or provision of services.

Explanation.—For the purposes of this sub-section, “bid rigging”  means  any
agreement, between enterprises or persons referred  to  in  sub-section  (3)
engaged in identical or similar production or trading of goods or  provision
of services, which has the effect of  eliminating  or  reducing  competition
for bids or adversely affecting or manipulating the process for bidding

(4)    Any agreement amongst enterprises or persons at different  stages  or
levels  of  the  production  chain  in  different  markets,  in  respect  of
production, supply, distribution, storage, sale or price  of,  or  trade  in
goods or provision of services, including—

(a)   tie-in arrangement;
(b)   exclusive supply agreement;
(c)   exclusive distribution agreement;
(d)   refusal to deal;
(e)   resale price maintenance,

shall be an agreement in contravention of sub-section (1) if such  agreement
causes or is likely to cause an appreciable adverse  effect  on  competition
in India.

Explanation.—For the purposes of this sub-section,—

(a)    “tie-in arrangement” includes any agreement requiring a purchaser  of
goods, as a condition of such purchase, to purchase some other goods;

(b)    “exclusive supply agreement” includes any  agreement  restricting  in
any manner the purchaser in the  course  of  his  trade  from  acquiring  or
otherwise dealing in any goods other than those of the seller or  any  other
person;

(c)    “exclusive distribution agreement” includes any agreement  to  limit,
restrict or withhold the output or supply of any goods or allocate any  area
or market for the disposal or sale of the goods;

(d)    “refusal to deal” includes  any  agreement  which  restricts,  or  is
likely to restrict, by any method the persons or classes of persons to  whom
goods are sold or from whom goods are bought;

(e)    “resale price maintenance” includes any agreement to  sell  goods  on
condition that the prices to be charged  on  the  resale  by  the  purchaser
shall be the prices stipulated by the seller unless  it  is  clearly  stated
that prices lower than those prices may be charged.

(5)   Nothing contained in this section shall restrict— (i)   the  right  of
any person  to  restrain  any  infringement  of,  or  to  impose  reasonable
conditions, as may be necessary for protecting any of his rights which  have
been or may be conferred upon him under—

(a)    the Copyright Act, 1957  (14 of 1957);

(b)    the Patents Act, 1970  (39 of 1970);

(c)    the  Trade  and  Merchandise Marks  Act, 1958  (43  of 1958)  or  the
Trade  Marks Act, 1999  (47 of 1999);

(d)    the Geographical Indications of Goods (Registration  and  Protection)
Act, 1999  (48 of 1999); (e) the Designs Act, 2000  (16 of 2000); \

(f)    the Semi-conductor Integrated Circuits Layout-Design  Act,  2000  (37
of 2000);

(ii)   the right of any person to export goods from India to the  extent  to
which  the  agreement  relates  exclusively  to  the   production,   supply,
distribution or control of goods or provision of services for  such  export.



As can be seen from the  bare  reading  of  the  aforesaid  provision,  sub-
section (1) of Section 3 puts an embargo on an enterprise or association  of
enterprises or person or association  of  persons  from  entering  into  any
agreement  in  respect  of  production,   supply,   distribution,   storage,
acquisition or control of goods or provisions of services  which  causes  or
is likely to cause an  appreciable  adverse  effect  on  competition  within
India.  Thus,  agreements  in  respect  of  distribution  or  provisions  of
services, if they have adverse effect on  competition,  are  prohibited  and
treated as void by virtue of sub-section (2).  Sub-section (3),  with  which
we are directly concerned, stipulates four kinds  of  agreements  which  are
presumed to have appreciable adverse effect on competition.   Therefore,  if
a particular agreement comes in any of the said categories,  it  is  per  se
treated as adversely effecting the competition to an appreciable extent  and
comes within the mischief of sub-section (1).  There is no further  need  to
have actual proof  as  to  whether  it  has  caused  appreciable  effect  on
competition.   Proviso  thereto,   however,   exempts   certain   kinds   of
agreements, meaning thereby if a particular case falls  under  the  proviso,
then such a presumption would not be applicable.

We have already mentioned in  brief  the  contents  of  letters  which  were
written by EIMPA and the  Coordination  Committee  to  the  Channel  10  and
CTVN+.  The DG was to investigate  as  to  whether  this  ‘agreement’  falls
within the four corners of Section 3(3)(b) of the Act,  namely,  whether  it
limits or  controls  production,  supply,  markets,  technical  development,
investment or provisions of services.

Section 2(b) defines 'agreement' and reads as under:
“2(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  intended
to be enforceable by legal proceedings ;”


Definitions of certain other expressions and terms which are required to  be
noted are as follows:
“2 (l)“person” includes—

(i)    an individual;

(ii)   a Hindu undivided family;

(iii)  a company;

(iv)   a firm;

(v)     an  association  of  persons  or  a  body  of  individuals,  whether
incorporated or not, in India or outside India; or

(vi)   any corporation  established  by  or  under  any  Central,  State  or
Provincial Act or a Government company as defined  in  section  617  of  the
Companies  Act, 1956  (1 of 1956);

(vii)       any body corporate incorporated  by  or  under  the  laws  of  a
country outside India;

(viii)      a co-operative society registered  under  any  law  relating  to
cooperative societies;

(ix)   a local authority;

(x)    every artificial juridical person, not  falling  within  any  of  the
preceding sub-clauses.”

                          xx          xx         xx

2(m)  “practice” includes any practice relating to the carrying  on  of  any
trade by a person or an enterprise;

                          xx          xx         xx

2(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 ;

2(s)  “relevant geographic market” means a market  comprising  the  area  in
which the conditions of competition for supply  of  goods  or  provision  of
services or demand of goods or services are distinctly  homogenous  and  can
be distinguished from the conditions prevailing in the neighbouring areas;

2(t) “relevant product market” means a market comprising all those  products
or services which are regarded as interchangeable or substitutable by the
consumer, by reason of characteristics of the products  or  services,  their
prices and intended use;

2(u) “service” means service of any description which is made  available  to
potential users and includes the provision of services  in  connection  with
business  of  any  industrial  or  commercial  matters  such   as   banking,
communication,   education,   financing,   insurance,  chit   funds,    real
estate,  transport,  storage,  material  treatment,  processing,  supply  of
electrical or other energy,  boarding,  lodging,  entertainment,  amusement,
construction, repair, conveying of news or information and advertising;

                          xx          xx         xx

2(x)  “trade” means any trade, business, industry, profession or  occupation
relating to the production, supply,  distribution,  storage  or  control  of
goods and includes the provision of any services; ”


At this stage, we would like to  refer  to  Section  19  of  the  Act  which
permits the CCI to conduct an enquiry into certain kinds of  agreements  and
dominant position of enterprise.  Sub-section (1)  of  Section  19  empowers
the Commission to inquire into any alleged contravention of  the  provisions
contained  in  sub-section  (1)  of   Section   3   (i.e.   anti-competitive
agreements) or  sub-section  (1)  of  Section  4  (i.e.  abuse  of  dominant
position).  Sub-section (3) deals with the factors which have to be kept  in
mind  by  the  CCI  while  undertaking  an  inquiry  into   anti-competitive
agreements and reads as under:

“19(3)      The Commission shall, while  determining  whether  an  agreement
has an appreciable adverse effect on competition under section 3,  have  due
regard to all or any of the following factors, namely:

(a)    creation of barriers to new entrants in the market;

(b)    driving existing competitors out of the market;

(c)    foreclosure of competition by hindering entry into the market;

(d)    accrual of benefits to consumers;

(e)    improvements in production or distribution of services; of  goods  or
provision

(f)    promotion   of technical, scientific   and   economic development  by
means of production or distribution of goods or provision of services.


 Since the appreciable adverse effect on competition has to be seen  in  the
context of 'relevant market' as  defined  under  Section  2(r)  of  the  Act
(already reproduced above), sub-section (5) of Section  19  stipulates  that
in order to determine whether a market constitutes a 'relevant  market'  for
the purposes of this Act,  CCI  shall  have  due  regard  to  the  'relevant
geographic market’, and 'relevant product market'.  The  factors  which  are
to be taken into account while determining relevant  geographic  market  are
mentioned in sub-section (6) of Section 19. Likewise, the factors which  are
to be taken  into  consideration  while  determining  the  relevant  product
market are stipulated in sub-section (7) of Section 19.

Having  noticed  the  relevant  provisions  postulating   the   scheme   qua
prohibited anti-competitive agreements, on the basis of which  investigation
is to be made by the DG, the first aspect was to determine as to what  would
be the 'relevant market'.  The DG, in  his  report  submitted  to  the  CCI,
opined that in the instant case 'relevant market' would  be  the  'film  and
television  industry  of  West  Bengal'.   He  further  recorded  that   the
Coordination Committee consisted of persons or association  of  persons  who
were dealing with identical market of  film  making.   In  his  opinion  any
agreement of joint action taken by the constituents, being in the nature  of
horizontal agreement, could be examined  under  the  provisions  of  Section
3(3) of the Act.  The impugned action  of  the  Coordination  Committee  and
EIMPA threatening non-cooperation in case telecast of the  serials  was  not
stopped and holding demonstrations  as  well  as  organising  strike,  which
resulted in  actually stopping the telecast of  the  serial  by  Channel  10
(though  CTVN+  continued  to  telecast),  amounted   to   restricting   its
commercial exploitation and was,  therefore,  unjustified.   He  found  that
following conduct of the  Coordination  Committee  specifically  contravened
the provisions of the Act:
“a.   Act of the Co-ordination Committee writing a letter on  18.02.2011  to
CCTVN Plus Channel asking it to stop the telecasting of Mahabharata serial.

b.    Further, act of  the  Co-ordination  Committee  writing  a  letter  on
01.03.2011  to  Channel  10  and  letters  on  11.03.2011,  12.03.2011   and
14.03.2011 to CTVN  Plus  Channel  asking  them  to  stop  the  telecast  of
Mahabharata serial.

c.    Observance of one-day work stoppage on 07.04.2011 against telecast  of
the Mahabharata serial by  the  members  of  all  the  constituents  of  Co-
ordination Committee and demonstration on  the  same  day  from  11.00AM  to
02.00PM at Rani Rasoni Road in Kolkata.

d.    The Co-ordination Committee approached Shri  Mithun  Chakraborty,  the
leading actor of Indian Film Industry and the Chief Adviser  of  Channel  10
and finally succeeded in getting the  telecast  of  Mahabharata  stopped  by
Channel 10.”


The DG concluded that the action on the part of Coordination  Committee  had
resulted in foreclosure of competition by hindering entry into  the  market.
The DG also held that by not allowing the dubbed version of the serial,  the
Coordination  Committee  foreclosed  the  business  opportunities  for   the
businessmen  engaged  in  the  production,  distribution,  and   exhibition,
telecast of such programmes.  The DG, therefore, concluded that the  actions
on the part of EIMPA and Coordination Committee were  in  violation  of  the
provisions of  Section  3(3)(b)  of  the  Act,  since  they  restricted  and
controlled the market and supply  of  dubbed  versions  of  serials  on  the
Television   Channels    through    collective    intent    of    all    the
constituents/associations coming together on one platform.

Certain fundamental objections were taken by the Coordination  Committee  as
well as EIMPA touching upon the jurisdiction of the DG to inquire  into  the
matter as according to them the inquiry was beyond the  scope  of  the  Act.
In nutshell, it was argued:
(a)   The Coordination Committee comprised of  artists  and  technicians  of
West Bengal Film and T.V. Industry  and  consisted  of  West  Bengal  Motion
Picture Artists' Forum and Federation of Cine  Technicians  and  Workers  of
Eastern India only. The other members like WATP, ATA and EIMPA were  not  in
the Coordination Committee.  It was, in fact, a trade union of the  artisans
and technicians under the Trade  Union  Act.   Therefore,  the  Coordination
Committee was not an 'enterprise'.
      Likewise, it was not a ‘person or ‘association of  persons’  who  were
in  the  business  of  production,  supply  and  distribution  or  providing
services etc.  Therefore, their act would not fall  under  Section  3(1)  of
the Act.
(b)   It was argued that the Coordination Committee was not  in  a  position
to control production programming marketing and uplinking of any  serial  in
the satellite channel and, therefore, provisions of the Act would not  apply
to it.
(c)   According to the Coordination Committee, the  action  which  they  had
taken was in the form of an agitation against the telecast of  Hindi  serial
after dubbing the same into Bangla in order to  safeguard  the  interest  of
its members.    It was their constitutional right  to  lodge  such  protests
under Article 19(1)(a) of the Constitution of India.

The DG, however, did not get convinced with the  aforesaid  defence  put  by
the Coordination Committee and found that the agitation of the  Coordination
Committee was uncalled for inasmuch as there was a huge potential  of  local
film artists, and the industry was not likely to suffer on  account  of  the
dubbed serials shown on the said channels.  He also found  the  industry  of
television  channels  in  Bangla  was  growing  by  leaps  and  bounds  and,
therefore, argument of the Coordination Committee was not  based  on  facts.
Thus, their action was held  to  be  unjustified,  as  it  had  resulted  in
foreclosure  on  competition  by  entering  into  the  market  as  well   as
foreclosure of business opportunities for the  businessmen  engaged  in  the
production, distribution and exhibition/telecast of such programmes.   This,
according to him, came within the mischief of Section 3(3)(b) of the Act.

Against the aforesaid report of the DG, being adverse  to  the  Coordination
Committee as well as EIMPA, both of them preferred their  objections  before
the CCI. These objections were almost on the same  lines  which  were  taken
before the DG and, therefore, it is not necessary  to  repeat  the  same  at
this stage inasmuch as we would be turning to the stand of the  Coordination
Committee at the appropriate stage, in any case.

The CCI, after scanning through those objections, formulated  two  questions
which according to it fell for consideration. These are:
Issue 1
      Whether EIMPA and Co-ordination Committee imposed/attempted to  impose
restrictions on the telecast of dubbed serial ‘Mahabharat’?
Issue 2
      Whether the act and conduct of imposing restrictions  on  telecast  of
the said serial is in violation of provisions of the Act?

The CCI gave a fractured verdict  on  the  aforesaid  issues.   As  per  the
majority, the complainant  was  able  to  give  clinching  evidence  thereby
proving both the issues.  The majority held  that  Channel  10  stopped  the
telecast of serial as a direct consequence of the threats extended to it  by
EIMPA as well  as  Coordination  Committee  through  their  various  letters
coupled with the agitations and demonstration held by them. In this  manner,
pressures were exerted on both Channel 10 and  CTVN+  not  to  telecast  the
dubbed serial, though as far as CTVN+ is concerned it  did  not  succumb  to
such a pressure.  But Channel 10 gave in by discontinuing  the  telecast  of
the serial.  In this manner, first issue was decided in the affirmative.
      Taking up the second issue, the majority members held that  since  the
Coordination Committee was  not  an  'enterprise',  question  of  breach  of
Section 4 did not  arise.   However,  the  activities  of  the  Coordination
Committee fell within the ambit of Section 3 of the Act  and  violated  that
provision since it had adverse effect on competition.  It accepted that  the
Coordination Committee (and for that matter even EIMPA) were  trade  unions.
Notwithstanding, they were not exempted from the purview of  the  Act.   Qua
the Coordination Committee specifically, the CCI was influenced by the  fact
that even when bodies like WATP, ATA and  EIMPA  were  not  members  of  the
Coordination Committee, still it was found that the  Coordination  Committee
takes the measures in consultation with these associations  and,  therefore,
the Coordination Committee must be deemed to be comprised of  all  the  five
members.

Judicial member in the CCI put discordant  note  as  he  differed  from  the
majority opinion.  According to him, first mistake committed by the  DG  was
that he did not identify the 'relevant market' correctly. According to  him,
'relevant market' was  'broadcast  of  TV  serial'  and  not  'Film  and  TV
Industry of West  Bengal'  as  found  by  the  DG.   After  identifying  the
relevant market as broadcast of  TV  serials,  learned  member  opined  that
broadcast of TV serials took place either by way of Direct to Home  Services
(DTH) or through Cable and, therefore, broadcasting service is altogether  a
separate market, different from production, exhibition and  distribution  of
films.  Insofar as the two  channels,  namely,  CTVN+  and  Channel  10  are
concerned, they were in  the  market  for  telecasting  programmes  for  the
viewers  of  the  DTH  category  or  Cable  TV  category  and  were  not  in
production, distribution or exhibition of dubbed  films.  According  to  the
minority view, since the offending  parties,  i,e.,  Coordination  Committee
and EIMPA, were not active in the relevant market of broadcast of dubbed  TV
serials, there was no question of any violation of  any  provisions  of  the
Act.  It was further held that Section 3 of the Act does not take  into  its
fold coercive actions taken by workers' union affecting the  various  facets
or products  or  service  market,  affecting  production,  distribution  and
supply of goods or services.  It was accepted that, as  a  matter  of  fact,
the Coordination Committee as well  as  EIMPA  had  put  pressure  on  these
channels from broadcasting the dubbed TV serial in question through  various
means.  However, it could not be treated as an economic  pressure.   It  was
an act of trade union putting such pressures which was  outside  the  domain
of the Act and not an 'agreement' amongst the  enterprises,  active  in  the
same relevant market,  which  resulted  in  discontinuing  the  telecast  of
dubbed serials.  Further, the TV channels were at  liberty  to  ignore  such
coercive facts.  The minority opinion went to the extent of expressing  that
right to hold dharnas, boycotts, strikes etc. was fundamental right  of  any
trade union guaranteed under Article  19(1)(a)  of  the  Constitution  which
could not be taken away by the Act,  unless it is shown that  the  offending
parties were involved in economic activities in the same  'relevant  market'
and they  had  entered  into  an  'agreement'  which  finds  foul  with  the
provisions of Section 3 of the Act.

Significantly, it is only the Coordination  Committee  which  preferred  the
appeal before the Competition Appellate Tribunal  (hereinafter  referred  to
as the 'Tribunal').  EIMPA, by its conduct, accepted the  majority  decision
of the CCI.  It is for this reason the Tribunal did not go  into  the  issue
with reference to  EIMPA.   It  discussed  the  stand  of  the  Coordination
Committee  and  deliberated  itself  confining  to  the  activities  of  the
Coordination Committee to find out whether majority view of CCI was  correct
in law.  By the impugned judgment, it has  held  otherwise  thereby  setting
aside the majority view and  accepting  the  minority  opinion  of  the  CCI
resulting into  allowing  the  appeal  of  the  Coordination  Committee  and
holding that there is no contravention of Section 3 of the Act  which  could
not even be invoked on the facts of this case.   In  the  first  place,  the
Tribunal has affirmed the opinion of the dissenting member  of  the  CCI  on
the question of 'relevant market' by holding that it was not the  ‘Film  and
Television Industry in the State of West Bengal’, but  the  relevant  market
was the ‘telecasting of the dubbed serial on  television  in  West  Bengal’.
Thereafter, the Tribunal took note of the provisions of Section 3(3) of  the
Act and concluded that the Coordination Committee was  not  trading  in  any
groups, or provisions of any services, much less by the persons  engaged  in
identical or similar trade or provisions of services.  Therefore,  it  could
not be said that there  was  any  'agreement'  as  envisaged  in  Section  3
entered into.  According  to  the  Tribunal,  Section  3(3)(b)  of  the  Act
applies to the competitors who would be  in  the  same  line  of  commercial
activity and by their  agreement  tend  to  restrict  the  competition.   No
evidence to this effect was available in the instant case.  It was merely  a
protest of the Coordination Committee voicing its grievance for the  benefit
of its members and even if such a move  on  the  part  of  the  Coordination
Committee was wrong and even if its agitation was influenced  by  foul  play
in projecting that exhibiting dubbed TV serial would affect their  prospects
of getting further work, that by  itself  would  not  become  a  competition
issue covered by the Act.

Challenging the aforesaid view  of  the  Tribunal,  Mr.  Chandhiok,  learned
senior advocate appearing for the CCI, referred to  the  various  provisions
of the Act and also extensively read out from  the  exercise  undertaken  by
the DG and the majority view of the CCI.  His submission was  that  exercise
undertaken by the DG and approved by the CCI in its  majority  decision  was
correct in law.  He questioned the manner in  which  'relevant  market'  has
been assigned limited sphere as, according to him,  the  matter  related  to
film and television industry of the State of West Bengal and  the  concerted
action  of  the  Coordination  Committee  was  to   obviously   effect   the
competitiveness in the entire film and television industry of the  State  of
West Bengal.  He also read out various definitions from the  Act,  which  we
have already reproduced above.  His submission was that  the  definition  of
'agreement' contained in Section 2(b) had a much wider connotation  and  any
such agreement which was  anti-competitive  in  nature  between  persons  or
association of persons was hit by Section 3.

Learned counsel appearing for  the  Coordination  Committee,  on  the  other
hand, heavily relied upon the  impugned  judgment  and  submitted  that  the
conclusion drawn therein was correct in law as the  Coordination  Committee,
which was in the nature of a  trade  union,  and  not  in  the  business  of
production, supply, distribution, storage, acquisition or control  of  goods
or provision of services, could not be covered within the scope  of  Section
3 of the Act.  He also  submitted  that  the  action  on  the  part  of  the
Coordination Committee had nothing to do with the  competition  and  it  was
the fundamental right of the Coordination Committee, as a  trade  union,  to
lodge legitimate protest. He submitted that even  if  in  this  protest  the
Coordination Committee had exceeded  the  limits,  that  may  be  an  action
actionable under any other law but would  not  fall  within  the  domain  of
Competition Law.

We have given our due consideration to the respective submissions  and  have
minutely gone through the orders  passed  by  various  authorities,  glimpse
whereof is already reflected above.

Two fundamental aspects which need determination are:
      (i)   What is the 'relevant market' for the purposes of  inquiry  into
the impugned activity of the Coordination Committee? and
      (ii)  Whether the action and conduct of the Coordination Committee  is
covered by the provisions of Section 3 of the Act?

Before we discuss the aforesaid questions, it would be  necessary  to  clear
the air on some of the fundamental aspects relating to the Act.

The Competition Act of 2002, as amended in 2007 and 2009, deals  with  anti-
trust issues, viz.  regulation  of  anti-competitive  agreements,  abuse  of
dominant position and  a  combination  or  acquisition  falling  within  the
provisions of the said Act.   Since  the  majority  view  of  the  CCI  also
accepted that the impugned activities of the Coordination Committee did  not
amount to abuse of dominant position, and  it  treated  the  same  as  anti-
competitive  having  appreciable  adverse   effect   on   competition,   our
discussion would be focused only on anti-competitive agreements.  Section  3
of the Act is the relevant section in this behalf.  It is intended  to  curb
or prohibit certain agreements.  Therefore, in the first instance, it is  to
be found out that there existed an ‘agreement’ which  was  entered  into  by
enterprise or  association  of  enterprises  or  person  or  association  of
persons.  Thereafter, it needs to  be  determined  as  to  whether  such  an
agreement is anti-competitive agreement  within  the  meaning  of  the  Act.
Once it is found to be so, other provisions relating to the  treatment  that
needs to be given thereto get attracted.

While inquiring into any alleged contravention, whether  by  the  Commission
or by the DG, and determining  whether  any  agreement  has  an  appreciable
adverse effect on competition under Section  3,  factors  which  are  to  be
taken into consideration are mentioned in sub-section  (3)  of  Section  19,
which are as follows:
“19. Inquiry into certain agreements and dominant position of enterprise.  –


                          xx          xx         xx

(3)  The Commission shall, while determining whether  an  agreement  has  an
appreciable adverse effect on competition under section 3, have  due  regard
to all or any of the following factors, namely:-

(a)  creation of barriers to new entrants in the market;

(b)  driving existing competitors out of the market;

(c)  foreclosure of competition by hindering entry into the market;

(d)  accrual of benefits to consumers;

(e)  improvements in production or distribution of  goods  or  provision  of
services;

(f)  promotion of technical, scientific and economic  development  by  means
of production or distribution of goods or provision of services.

                         xx          xx         xx”


The word 'market' used therein has reference to 'relevant  market'.  As  per
sub-section (5)  of  Section  19,  such  relevant  market  can  be  relevant
geographic market or relevant product market.  The factors which are  to  be
kept  in  mind  while  determining  the  relevant  geographic   market   are
stipulated in sub-section (6) of Section 19 and the factors  which  need  to
be considered while determining the relevant product market  are  prescribed
in sub-section (7) of Section 19.  These two sub-sections read as under:
“(6)  The Commission  shall,  while  determining  the  “relevant  geographic
market', have due regard to all or any of the following factors, namely:-

(a)  regulatory trade barriers;

(b)  local specification requirements;

(c)  national procurement policies;

(d)  adequate distribution facilities;

(e)  transport costs;

(f)  language;

(g)  consumer preferences;

(h)  need for secure or regular supplies or rapid after-sales services.


(7)  The Commission shall, while determining the “relevant product  market”,
have due regard to all or any of the following factors, namely:-

(a)  physical characteristics or end-use of goods;

(b)  price of goods or service;

(c)  consumer preferences;

(d)  exclusion of in-house production;

(e)  existence of specialised producers;

(f)  classification of industrial products.”

      It is for this reason,  the  first  and  foremost  aspect  that  needs
determination is: 'What is the  relevant  market  in  which  competition  is
effected?”

Market definition is a  tool  to  identify  and  define  the  boundaries  of
competition between firms.  It serves  to  establish  the  framework  within
which competition policy is applied by the Commission.  The main purpose  of
market definition is  to  identify  in  a  systematic  way  the  competitive
constraints that the undertakings involved face.  The objective of  defining
a market in both its product and geographic dimension is to  identify  those
actual  competitors  of  the  undertakings  involved  that  are  capable  of
constraining those  undertakings  behaviour  and  of  preventing  them  from
behaving independently of effective competitive pressure.
            Therefore, the purpose of defining the 'relevant market'  is  to
assess with identifying in a  systematic  way  the  competitive  constraints
that undertakings face when operating in a market.   This  is  the  case  in
particular for determining if  undertakings  are  competitors  or  potential
competitors and when assessing the anti-competitive effects of conduct in  a
market.  The concept of relevant market  implies  that  there  could  be  an
effective competition between the products which form part of  it  and  this
presupposes that there is a sufficient degree of interchangeability  between
all the products forming part of the same market insofar as specific use  of
such product is concerned.

While identifying the relevant market in a given case, the CCI  is  required
to look at evidence that is available and relevant  to  the  case  at  hand.
The CCI has to define the boundaries of the relevant market as precisely  as
required by the circumstances  of  the  case.   Where  appropriate,  it  may
conduct its competition  assessment  on  the  basis  of  alternative  market
definitions. Where it is apparent that the investigated conduct is  unlikely
to have an adverse effect on  competition  or  that  the  undertaking  under
investigation does not possess a substantial degree of market power  on  the
basis of  any  reasonable  market  definition,  the  question  of  the  most
appropriate market definition can even be left open.

The relevant market within which to analyse market power or assess  a  given
competition  concern  has  both  a  product  dimension  and   a   geographic
dimension.  In this context,  the  relevant  product  market  comprises  all
those products which are  considered  interchangeable  or  substitutable  by
buyers because of the products' characteristics, prices  and  intended  use.
The relevant geographic market comprises all those regions  or  areas  where
buyers would be able or willing to find  substitutes  for  the  products  in
question.  The relevant product  and  geographic  market  for  a  particular
product may vary depending  on  the  nature  of  the  buyers  and  suppliers
concerned by the conduct under examination and their position in the  supply
chain.  For example,  if  the  questionable  conduct  is  concerned  at  the
wholesale level, the relevant market has to be defined from the  perspective
of the wholesale buyers.  On the other hand, if the concern  is  to  examine
the conduct at the retail level, the relevant market  needs  to  be  defined
from the perspective of buyers of retail products.

It is to be borne in mind that the process of defining the  relevant  market
starts  by  looking  into  a  relatively  narrow  potential  product  market
definition.  The potential product market is then expanded to include  those
substituted products to which buyers would turn  in  the  face  of  a  price
increase above the competitive price.   Likewise,  the  relevant  geographic
market can be defined using the same general process as that used to  define
the relevant product market.

Bearing in mind the aforesaid considerations, we concur with the  conclusion
of the Tribunal.  It is the notion of 'power over the market' which  is  the
key to analysing many competitive issues.  Therefore, it  becomes  necessary
to understand what is meant by the relevant  market.   This  concept  is  an
economic one.

In the instant case, the geographic market is the State of West  Bengal  and
to  this  extent  there  is  no  quarrel  inasmuch  as  activities  of   the
Coordination Committee were limited to the said State.  The  dispute  is  as
to whether relevant market would cover ‘broadcast of TV serial’ or it  would
take within its sweep ‘film and TV industry of the State  of  West  Bengal’.
TV serial in question was produced in Hindi.  It was  thereafter  dubbed  in
Bangla.  When the two channels, namely CTVN+  and  Channel  10,  decided  to
broadcast this TV serial in dubbed form, i.e. in Bangla language, this  move
was opposed by the Coordination  Committee  and  EIMPA.   The  Tribunal  has
upheld the minority view of CCI in saying that  nature  of  the  information
does not show anything which could even be  distinctly  connected  with  the
whole 'film and television industry in  the  State  of  West  Bengal'.   The
information is only against showing the dubbed serial on the television  and
it has no relation whatsoever with production,  distribution,  etc.  of  any
film or any other material on the TV channels.
      We feel that this is  a  myopic  view  taken  by  the  Tribunal  which
ignores many other vital aspects of this  case,  most  important  being  the
width of the effect of the aforesaid cause on which the  agitation  was  led
by the Coordination Committee.  The effect is not limited  to  the  telecast
or  broadcast  of  the  television  serial.   No  doubt,  the   Coordination
Committee was against the ‘broadcast of the television  serial  ‘Mahabharat’
on the aforesaid two channels, in the dubbed form.   However,  even  as  per
the agitators, the said broadcast was going to adversely affect the  TV  and
Film Industry of West Bengal and the alleged purport behind the threats  was
to save the entire TV and Film Industry.  The Coordination Committee  itself
mentioned so in its letter dated February 18, 2012 as under:
“We came to know that you are  publicizing  in  your  channel  that  Bengali
dubbed version of “Mahabharat” will be telecasted in your  channel,  shortly
this is for your kind information that the whole TV and  Film  Industry  had
fought back ruthlessly against telecast of Bengali dubbed versions of  Hindi
serials in DD-1 slot in 1997 and since that agitation  DD  National  Network
has stopped telecasting any Bengali dubbed version of  Hindi  programs.   At
the same time, it is to be noted that the film industry was also  successful
in debarring the release of Bengali  dubbed  version  of  Hindi  Movie  “Luv
Kush” produced by Mr. Dilip Kankaria of Deluxe Films in the year 1997.

We  have  done  this  to  stop  withering  away  of  the   prestigious   and
internationally acclaimed Bengali  Film  and  Television  Industry,  thereby
creating job for artistes, workers and allied people  associated  with  this
industry.

Hence we would request you to stop telecast of  dubbed  Bengali  version  of
“Mahabharat” in your channel.
                                                           (emphasis added)”


The relevant market was, therefore, not limited to the broadcasting  of  the
channel but entire film and television industry of West Bengal.  Whether  it
was the misgiving of the Coordination  Committee  that  telecast  of  dubbed
version of ‘Mahabharat’ is going  to  affect  Bengali  film  and  television
industry or it was a genuine concern,  is  not  the  relevant  factor  while
defining the ‘relevant market’[1].  It is the sweep of the aforesaid  action
which is to be considered.   Even in  the  perception  of  the  Coordination
Committee, telecast of Bengali dubbed version of ‘Mahabharat’ was  going  to
affect the whole Television and Film Industry.   In  view  thereof,  it  was
hardly a matter of debate as to what would be the relevant market.


With this we advert to the central issue  that  bogs  the  parties,  namely,
whether the activities in which the Coordination Committee indulged  in  can
be treated as 'agreement' for the purpose of Section 3 of the Act.

At the outset, it may be noticed that  the  entities  which  are  roped  in,
whose  agreements  can  be  offending,  are  enterprise  or  association  of
enterprises or person or association of persons or where  the  agreement  is
between any person and  an  enterprise.   The  expression  'enterprise'  may
refer to any entity, regardless of its legal status or the way in  which  it
was financed and, therefore,  it  may  include  natural  as  well  as  legal
persons.  This statement gets further strengthened as the agreement  entered
into by a 'person' or 'association of persons' are also  included  and  when
it is read with the definition of 'person' mentioned in Section 2(l) of  the
Act.  Likewise, definition of 'agreement' under Section 2(b)  is  also  very
widely worded.  Not only it is inclusive, as  the  word  'includes'  therein
suggests  that  it  is  not  exhaustive,  but  also   any   arrangement   or
understanding or even action in concert is termed  as  'agreement'.   It  is
irrespective of the fact that such arrangement or  understanding  is  formal
or informal and the same may be oral as well and it is  not  necessary  that
the same is reduced in writing or whether it is intended to  be  enforceable
by legal proceedings or not.  Therefore, the  Coordination  Committee  would
be covered by the definition of ‘person’.  However,  what  is  important  is
that such an ‘agreement’, referred to in Section 3 of the Act has to  relate
to an economic activity which is central to the concept of Competition  Law.
 Economic activity, as is  generally  understood,  refers  to  any  activity
consisting of offering products  in  a  market  regardless  of  whether  the
activities are intended to earn a profit.  Some examples may be given  which
would not be covered by Section 3(3) of the Act.  An individual acting as  a
final consumer is not an enterprise or a person  envisaged,  as  he  is  not
carrying on an economic activity.  We may also  mention  that  the  European
Union Competition Law recognises that an  entity  carrying  on  an  activity
that has an exclusively social function and is based  on  the  principle  of
solidarity is not likely to be treated as carrying on an  economic  activity
so as to qualify the expressions used in Section 3.  The reason is  obvious.
 The  'agreement'  or  'concerted  practice'  is  the  means  through  which
enterprise or  association  of  enterprises  or  person  or  association  of
persons restrict competition.  These concepts  translate  the  objective  of
Competition Law  to  have  economic  operators  determine  their  commercial
policy independently.   Competition  Law  is  aimed  at  frowning  upon  the
activities  of  those  undertakings  (whether  natural  persons   or   legal
entities) who, while  undertaking  their  economic  activities,  indulge  in
practices which effect the competition adversely or take advantage of  their
dominant position.

The notion of enterprise is a relative one.   The  functional  approach  and
the corresponding focus on the activity, rather than the form of the  entity
may result in an entity being considered an enterprise when  it  engages  in
some activities, but not when it engages in others.  The relativity  of  the
concept is most evident when considering  activities  carried  out  by  non-
profit-making organisations or public bodies.  These entities may  at  times
operate in their charitable or public capacity  but  may  be  considered  as
undertakings when  they  engage  in  commercial  activities.   The  economic
nature of an activity is often apparent when the entities  offer  goods  and
services in the marketplace and when the activity could, potentially,  yield
profits.   Thus,  any  entity,  regardless  of  its  form,  constitutes   an
'enterprise' within the meaning of Section 3 of the Act when it  engages  in
economic activity.  An economic activity includes any activity,  whether  or
not profit making, that involves economic trade.

In the instant case, admittedly the Coordination Committee, which may  be  a
‘person’ as per the definition contained in Section 2(l) of the Act, is  not
undertaking any economic activity by itself.  Therefore, if we were to  look
into the ‘agreement’ of such a ‘person’,  i.e.  Coordination  Committee,  it
may not fall under Section 3(1) of the Act as it is not in  respect  of  any
production, supply, distribution, storage, acquisition or control  of  goods
or provision of services.  The Coordination  Committee,  which  is  a  trade
union acting by itself, and without conjunction with any  other,  would  not
be treated as an ‘enterprise’  or  the  kind  of  'association  of  persons'
described in Section 3.  A trade union acts as on behalf of its  members  in
collective bargaining and is not engaged  in  economic  activity.   In  such
circumstances,  had  the  Coordination  Committee  acted   only   as   trade
unionists, things would have been different.  Then, perhaps, the view  taken
by the Tribunal could be sustained.  However, what is  lost  in  translation
by the Tribunal i.e. in applying the aforesaid principle of the activity  of
the trade union, is a very pertinent and significant fact, which  was  taken
note of by the DG as well as the CCI in its majority opinion.  It  is  this:
The Coordination Committee (or for that matter even  EIMPA)  are,  in  fact,
association of enterprises  (constituent  members)  and  these  members  are
engaged in production, distribution and exhibition of films.   EIMPA  is  an
association  of  film  producers,  distributors  and  exhibitors,  operating
mainly in the State of West Bengal.  Likewise,  the  Coordination  Committee
is the joint platform of Federation of  Senior  Technician  and  Workers  of
Eastern India and West Bengal Motion Pictures Artistes  Forum.   Both  EIMPA
as well as the Coordination Committee acted in a concerted  and  coordinated
manner.  They joined  together  in  giving  call  of  boycott  of  competing
members i.e. the informant  in  the  instant  case  and,  therefore,  matter
cannot be viewed narrowly by treating  Coordination  Committee  as  a  trade
union, ignoring the fact that it is backing the cause  of  those  which  are
‘enterprises’.  The  constituent  members  of  these  bodies  take  decision
relating to production or  distribution  or  exhibition  on  behalf  of  the
members who are engaged in the similar or identical business of  production,
distribution or exhibition of the  films.   Decision  of  these  two  bodies
reflected collective intent of the members.  When some of  the  members  are
found to be in the production, distribution or exhibition line,  the  matter
could not have been brushed aside by merely  giving  it  a  cloak  of  trade
unionism.  For this reason, the argument predicated on the  right  of  trade
union under Article 19, as professed by the Coordination Committee, is  also
not available.

When the lenses of the reasoning process are duly adjusted with their  focus
on the picture, the picture gets sharpened  and  haziness  disappears.   One
can clearly view that prohibition on the exhibition of dubbed serial on  the
television prevented the competing  parties  in  pursuing  their  commercial
activities.  Thus, the CCI rightly observed that the protection in the  name
of the language goes against the interest of the competition, depriving  the
consumers of  exercising  their  choice.   Acts  of  Coordination  Committee
definitely caused harm to consumers by  depriving  them  from  watching  the
dubbed serial on TV channel; albeit for a brief period.   It  also  hindered
competition in the market by barring dubbed TV serials  from  exhibition  on
TV channels in the State of West Bengal.  It amounted to  creating  barriers
to the entry of new content in the said dubbed  TV  serial.   Such  act  and
conduct also limited the supply of serial dubbed in  Bangla,  which  amounts
to violation of the provision of Section 3(3)(b) of the Act.

Resultantly, the instant appeal of CCI stands allowed.
      No costs.

                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                       (ABHAY MANOHAR SAPRE)

NEW DELHI;
MARCH 07, 2017.
-----------------------
[1]   It may be observed that majority view of CCI has rejected the plea  of
the Coordination Committee as well as EIMPA that allowing  the  dubbed  film
will take away jobs from Bengali artistes according to CCI: “If the  Bengali
films and TV serials are preferred over the non-Bengali content as a  result
of competitive process, ultimately the Bengali artists will  get  benefited.
The protectionist policies which are being followed will  not  come  to  the
aid of Bengali artistes, if on content they cannot compete.   Such  policies
are anti-thesis of the principles of free market.”


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