Page 1

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,

Civil Appeal No. 6691 of 2014 Page 1 of 41

Page 2

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

Civil Appeal No. 6691 of 2014 Page 2 of 41

Page 3

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.  

2) 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').

3) 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+

Civil Appeal No. 6691 of 2014 Page 3 of 41

Page 4

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.

4) 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

Civil Appeal No. 6691 of 2014 Page 4 of 41

Page 5

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’.

5) 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.

6) 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

Civil Appeal No. 6691 of 2014 Page 5 of 41

Page 6

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.

7) 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

Civil Appeal No. 6691 of 2014 Page 6 of 41

Page 7

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,

Civil Appeal No. 6691 of 2014 Page 7 of 41

Page 8

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

Civil Appeal No. 6691 of 2014 Page 8 of 41

Page 9

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. ”

8) 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

Civil Appeal No. 6691 of 2014 Page 9 of 41

Page 10

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.

9) 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

Civil Appeal No. 6691 of 2014 Page 10 of 41

Page 11

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.

10) 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 ;”      

11) 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

Civil Appeal No. 6691 of 2014 Page 11 of 41

Page 12

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,

Civil Appeal No. 6691 of 2014 Page 12 of 41

Page 13

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; ”

12) 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;  

Civil Appeal No. 6691 of 2014 Page 13 of 41

Page 14

(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.  

13)  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.

14) 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

Civil Appeal No. 6691 of 2014 Page 14 of 41

Page 15

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

Civil Appeal No. 6691 of 2014 Page 15 of 41

Page 16

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.”

15) 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.

16) 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

Civil Appeal No. 6691 of 2014 Page 16 of 41

Page 17

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.

Civil Appeal No. 6691 of 2014 Page 17 of 41

Page 18

17) 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.

18) 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.

Civil Appeal No. 6691 of 2014 Page 18 of 41

Page 19

19) 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?

20) 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.

Civil Appeal No. 6691 of 2014 Page 19 of 41

Page 20

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.

21) 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

Civil Appeal No. 6691 of 2014 Page 20 of 41

Page 21

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

Civil Appeal No. 6691 of 2014 Page 21 of 41

Page 22

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.

22) 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

Civil Appeal No. 6691 of 2014 Page 22 of 41

Page 23

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

Civil Appeal No. 6691 of 2014 Page 23 of 41

Page 24

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.

23) 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.

Civil Appeal No. 6691 of 2014 Page 24 of 41

Page 25

24) 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.

25) 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.

26) Two fundamental aspects which need determination are:

(i) What is the 'relevant market' for the purposes of inquiry into

Civil Appeal No. 6691 of 2014 Page 25 of 41

Page 26

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?

27) Before we discuss the aforesaid questions, it would be necessary

to clear the air on some of the fundamental aspects relating to the

Act.

28) 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

Civil Appeal No. 6691 of 2014 Page 26 of 41

Page 27

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.

29) 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

Civil Appeal No. 6691 of 2014 Page 27 of 41

Page 28

economic  development  by  means  of production or distribution of goods or provision of services.

xx xx xx”

30) 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.

Civil Appeal No. 6691 of 2014 Page 28 of 41

Page 29

(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?”

31) 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

Civil Appeal No. 6691 of 2014 Page 29 of 41

Page 30

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.

32) 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

Civil Appeal No. 6691 of 2014 Page 30 of 41

Page 31

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.

33) 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.

Civil Appeal No. 6691 of 2014 Page 31 of 41

Page 32

34) 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.

35) 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.

36) 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.

Civil Appeal No. 6691 of 2014 Page 32 of 41

Page 33

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

Civil Appeal No. 6691 of 2014 Page 33 of 41

Page 34

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)”

37) 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

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

Civil Appeal No. 6691 of 2014 Page 34 of 41

Page 35

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.   

38) 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.

39) 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

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.”

Civil Appeal No. 6691 of 2014 Page 35 of 41

Page 36

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

Civil Appeal No. 6691 of 2014 Page 36 of 41

Page 37

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.

40) 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

Civil Appeal No. 6691 of 2014 Page 37 of 41

Page 38

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.

41) 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

Civil Appeal No. 6691 of 2014 Page 38 of 41

Page 39

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

Civil Appeal No. 6691 of 2014 Page 39 of 41

Page 40

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.   

42) 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

Civil Appeal No. 6691 of 2014 Page 40 of 41

Page 41

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.

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

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

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

NEW DELHI; MARCH 07, 2017.

Civil Appeal No. 6691 of 2014 Page 41 of 41