# COMPETITION COMMISSION OF INDIA v. CO-ORDINATION COMMITTEE OF ARTISTS AND TECHNICIANS OF W.B. FILM AND TELEVISION AND ORS

- **Citation:** [2017] 5 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2017-03-07
- **Case number:** Civil Appeal No. 6691 of 2014
- **Bench:** A. K. Sikri, Abhay Manohar Sapre
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/competition-commission-of-india-v-co-ordination-committee-of-artists-and-32119
- **Pages:** 29

## Headnote

Competition Act, 2002:
s.3(3)(b) - Violation of- Scope of jurisdiction of Competition
C
Commission of India (CCI) - Telecasting of dubbed serial
'Mahabharat' in Bang/a language - Telecasting of serial not
palatable to EIMPA(an Association of producers in Eastern India)
and Committee of Artists and Tech_nicians of West Bengal Film and
TV Investors (Coordination Committee), as in their perception D
dubbing of serials of other language in Bang/a would affect
producers, artists and Technicians of that region _.:Pursuant thereto,
broadcasting channels received letters from EIPA and Coordin"ation
Committee to stop the telecast of the dubbed serial and that noncompliance would result in non-cooperation from these two bodies
- Respondent No.2 informed CCI about the development and sought · E
action in the matter - Majority view of CCI was that EIMPA and
Coordination Committee imposed/attempted to impose restrictions
on the telecast of dubbed serial and this was in violation of provisions
of the Act - However, minority view was that the action and conduct
of both EIMPA and Coordination Committee did not violate any
F
provisions of the Act - EIMPA by its conduct accepted the majority
opinion - But, Coordination Committee went on appeal to
Competition Appellate Tribunal, which affirmed the minority view
of CCI - On appeal, held: Both EIMPA and Coordination Committee
acted in a concerted and coordinated manner, together they gave a
call to boycott the competing members - Decision of these two bodies
G
reflected collective intent of the members - Thus, the matter could
not have been brushed aside by merely giving it a cloak of trade
unionism - It is clear that acts of Coordination Committee caused
harm to consumers by depriving them from watching the dubbed
serial on TV channel and prevented competing parties ilt pursuing
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[2017] 5 S.C.R.
commercial activity-It hindered competition in the market by barring
dubbed TV serials from exhibition on TV channels in the State of
West Bengal - It amounted creation of barriers to the entry of new
content in the said dubbed TV serial - Therefore, such act and
conduct amounted to violation of the provision of s.3(3)(b) of the
Act.
s.2(r), (s) - Relevant market - Telecasting of dubbed serial
'Mahabharat' in Bang/a language - Broadcasting channels received
letters from EIMPA(an Association of producers in Eastern India)
and Committee of Artists and Technicians of West Bengal Film and
TV Investors (Coordination Committee) to stop the telecast of dubbed
serial in that region - Minority view of CCI was that 'relevant market'
was broadcast of T. V. serial and not T. V. industry of West Bengal
and broadcasting of it took place through different broadcasting
services, which is different from production, distribution of films -
Held: Jn the instant case, the geographical market is the State of
West Bengal and to this extent activities of Coordination Committee
were limited to the said State - Even as per agitators/Coordination
Committee, the said broadcast was going to adversely affect the TV
and Film industry of West Bengal - Thus, the relevant market was
not limited to broadcasting of the Channel but the entire film and
television industry of West Bengal.
Trade Unions - Regional T. V. and film industry - Association
of producers in Eastern India (EJMPA) - Committee of Artists and
Technicians of West Bengal Film and TV Investors (Coordination
Committee) - Coordination Committee contended - (i) that dubbing
of serials of other language in Bang/a would affect producers, artists
and Technicians of that region - (ii) it had nothing to do with the
competition and as a trade union, it had the fimdamental right to
lodge the protest - Held: In instant case, Coordination Committee
(or for that matter even EJMPA) are, in fact, association of
enterprises (constituent members) and these members are engaged
in production, distribution and exhibition of films - Matter cannot.
be vie

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[2017] 5 S.C.R. 1
COMPETITION COMMISSION OF INDIA
v.
CO-ORDINATION COMMITTEE OF ARTISTS AND
TECHNICIANS OF W.B. FILM AND TELEVISION AND ORS.
A
(Civil Appeal No. 6691 of 2014)
B
MARCH 07, 2017
[A. K. SIKRI AND ABHAY MANOHAR SAPRE, JJ.)
Competition Act, 2002:
s.3(3)(b) - Violation of- Scope of jurisdiction of Competition
C
Commission of India (CCI) - Telecasting of dubbed serial
'Mahabharat' in Bang/a language - Telecasting of serial not
palatable to EIMPA(an Association of producers in Eastern India)
and Committee of Artists and Tech_nicians of West Bengal Film and
TV Investors (Coordination Committee), as in their perception D
dubbing of serials of other language in Bang/a would affect
producers, artists and Technicians of that region _.:Pursuant thereto,
broadcasting channels received letters from EIPA and Coordin"ation
Committee to stop the telecast of the dubbed serial and that noncompliance would result in non-cooperation from these two bodies
- Respondent No.2 informed CCI about the development and sought · E
action in the matter - Majority view of CCI was that EIMPA and
Coordination Committee imposed/attempted to impose restrictions
on the telecast of dubbed serial and this was in violation of provisions
of the Act - However, minority view was that the action and conduct
of both EIMPA and Coordination Committee did not violate any
F
provisions of the Act - EIMPA by its conduct accepted the majority
opinion - But, Coordination Committee went on appeal to
Competition Appellate Tribunal, which affirmed the minority view
of CCI - On appeal, held: Both EIMPA and Coordination Committee
acted in a concerted and coordinated manner, together they gave a
call to boycott the competing members - Decision of these two bodies
G
reflected collective intent of the members - Thus, the matter could
not have been brushed aside by merely giving it a cloak of trade
unionism - It is clear that acts of Coordination Committee caused
harm to consumers by depriving them from watching the dubbed
serial on TV channel and prevented competing parties ilt pursuing
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B
c
D
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commercial activity-It hindered competition in the market by barring
dubbed TV serials from exhibition on TV channels in the State of
West Bengal - It amounted creation of barriers to the entry of new
content in the said dubbed TV serial - Therefore, such act and
conduct amounted to violation of the provision of s.3(3)(b) of the
Act.
s.2(r), (s) - Relevant market - Telecasting of dubbed serial
'Mahabharat' in Bang/a language - Broadcasting channels received
letters from EIMPA(an Association of producers in Eastern India)
and Committee of Artists and Technicians of West Bengal Film and
TV Investors (Coordination Committee) to stop the telecast of dubbed
serial in that region - Minority view of CCI was that 'relevant market'
was broadcast of T. V. serial and not T. V. industry of West Bengal
and broadcasting of it took place through different broadcasting
services, which is different from production, distribution of films -
Held: Jn the instant case, the geographical market is the State of
West Bengal and to this extent activities of Coordination Committee
were limited to the said State - Even as per agitators/Coordination
Committee, the said broadcast was going to adversely affect the TV
and Film industry of West Bengal - Thus, the relevant market was
not limited to broadcasting of the Channel but the entire film and
television industry of West Bengal.
Trade Unions - Regional T. V. and film industry - Association
of producers in Eastern India (EJMPA) - Committee of Artists and
Technicians of West Bengal Film and TV Investors (Coordination
Committee) - Coordination Committee contended - (i) that dubbing
of serials of other language in Bang/a would affect producers, artists
and Technicians of that region - (ii) it had nothing to do with the
competition and as a trade union, it had the fimdamental right to
lodge the protest - Held: In instant case, Coordination Committee
(or for that matter even EJMPA) are, in fact, association of
enterprises (constituent members) and these members are engaged
in production, distribution and exhibition of films - Matter cannot.
be viewed narrowly by treating Coordinate Committee as a trade
union, ignoring the fact that it is backing the cause of those which
are 'enterprises' - Decision of these two bodies reflected collective
intent of the members - When the members are found to be in the
production, distribution or exhibition line, the matter could not have
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION
3
COMMITTEE OF ARTISTS AND TECHNICIANS
been brushed aside by merely giving it a cloak of trade unionism -
A
Therefore, the right as professed u/Art.19 by the Coordination
Committee, is not available - Constitution of India - Art.19.
Words and Phrases - 'agreement', 'enterprise', 'person' -
Meaning of - Discussed in terms of s.2(b), s.2(1), s.3 of the
Competition Act, 2002.
B
Allowing the appeal, the Court
HELD: What is the 'relevant market' for the purposes of
inquiry into the impugned activity of the Coordination
Committee?
1.1 While identifying the relevant market in a given case,
the Competition Commission of India (CCI) is required to look
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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 D
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
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market definition can even be left open. [Para 32) [24-C-E)
1.2 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. [Para 33) [24E-G]
1.3 In the instant case, the geographic market is the State
of West Bengal and to this extent there is no quarrel inasmuch
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[2017] 5 S.C.R.
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as activities of the Committee of Artists and Technicians of West
Bengal Film and TV Investors (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
B
serial in question was produced in Hindi. It was thereafter dubbed
in Bangla. When the two channels decided to broadcast this TV
serial in dubbed form, i.e. in Bangla language, this move was
opposed by the Coordination Committee and EIMPA(an
Association of producers in Eastern India). The Tribunal has
upheld the minority view of CCI in saying that nature of the
C 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
D on the TV channels. [Para 36) [25-C-F]
1.4 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.
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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
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threats was to save the entire TV and Film Industry. [Para 36)
[25-F-H; 26-A)
1.5 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
G 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'. 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'
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COMPETITION COMMISSION OF INDIA v. CO-ORDINATION
5
COMMITTEE OF ARTISTS AND TECHNICIANS
was going to affect the whole Television and Film Industry. In A
view thereof, it was hardly a matter of debate as to what would be
the relevant market. [Para 37] [26-E-G]
Whether the action and conduct of the Coordination Committee
is covered by the provisions of Section 3 of the Act?
2.1 In the instant case, admittedly the Coordination
Committee, which may be a 'person' as per the definition
contained in Section 2(1) of the Act, is not undertaking any
economic activity by itself. Therefore, 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
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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 D
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 CCI in its majority opinion.
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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 F
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 a
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
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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
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members. 'Vhen 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, its also not available. (Para 41) (28-E-H; 29-A-D)
2.2 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
D
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
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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. [Para 42) [29-D-G)
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6691
of 2014.
From the Judgment and Order dated 03. 04.2014 ofthe Competition
Appellate Tribunal, New Delhi, in Appeal No. 131 of2012.
A. S. Chandhiok, Sr. Adv., Kanan Singh Chandhiok, Ritesh Kumar,
Ms. Monika Tyagi, Ms. Shristhi Kaul, Vikram Sobti, Avdhesh B., Ad vs.
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for the Appellant.
Avijit Bhattacharjee, Ms. Upma Shrivastava, Manoj Ghosh, S. K.
Agarwal, A. P. Sinha, M. K. Tiwari, Sudhansu Palo, Advs. for the
Respondents.
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The Judgment of the Court was delivered by
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION
7
COMMITTEE OF ARTISTS AND TECHNICIANS
A. K. SIKRI, J. I. This appeal raises an interesting and important
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question oflaw 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
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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
Mis. 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
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Bengal. Mis. BRTV, Mumbai, which is the producer ofT.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 Mis. Magnum T.V. Serials to dub the Hindi version of
the said serial in Bangla with further rights to exploit its Satellite, Pay
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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 Mis. Bengal Media Pvt. Ltd., Kolkata, which is the owner of E
'Channel 1 O', as well as with Mis. 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 2"tl
February, 2011and12'h February, 2011. An advertisement was placed
in Daily Newspapers on 19'h 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.
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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
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and Technicians ofWest 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,
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serials produced in other languag~s 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
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produced in other languages and shown to the public by dubbing the
same in their language. Because of this reason, on l81h February, 2011
CTVN+ received a letter from the Coordination Committee to stop the
telecast of the dubbed serial 'Mahabharat'. Letter dated l'' March,
2011 to the similar effect was written by EIMPA to CTVN+. Identical
demands were made to this Channel by the Coordination Committee as
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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 Barigla and telecast them in West Bengal. Threat
was also extended to CTVN+ as well as Channel l 0 that in case the
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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
Mis. Hart Video, came to know of the aforesaid developments and the
threat extended to CTVN+ and Cl)annel 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 ofEIMPA
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 ofEIMPA
and Coordination Coinmittee and restart the telecast of the serial which
was stopped since J7•h April, 2011. Hereafter, Respondent No. 2 shall
be described as the 'informant'.
5. The CCI, after receiving the aforesaid information from the
informant formed aprimafacie opinion that acts on the part ofEIMPA
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
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context of provisions contained in the Act.
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION
9
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]
6. In order to understand with clarity the task undertaken and A
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 anticompetitive 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 tum 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 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
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by, any association of enterprises or association of persons,
including cartels, engaged in identical or similar trade of goods or
provision of services, whichB
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( 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(!) if such
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION
11
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]
agreement causes or is likely to cause an appreciable adverse · A
effect on competition in India.
Explanation.-For the purposes of this sub-section,-
( a) "tie-in arrangement" includes any agreement requiril}g a
purchaser of goods, as a condition of such purchase, to purchase
some other goods;
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(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;
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( d) "refusal to deal" includes any agreement which restricts, or is
likely to restrict, by any method the persons or classes of persons
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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 (14ofl957);
(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 ( 4 7 of 1999);
(d) the Geographical Indications of Goods (Registration and
Protection) Act, 1999 (48 of 1999); (e) the Designs Act, 2000
(16 of2000); \
(f) the Semi-conductor Integrated Circuits Layout-Design Act,
2000 (37 of2000);
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(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."
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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
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 effoct 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 ( l ). There is no
further need to have actual proof as to whether it has caused appreciable
effect ori competition. Proviso thereto, however, exempts certain kinds
of agreements, meaning thereby if a particular case falls under the
E · pro~iso, then such a presumption would not be applicable.
9. We have already mentioned in brief the contents ofletters which
were written by EIMPA and the Coordination Committee to the Channel
l 0 and CTVN+. The DG was to investigate as to whether this
'agreement' falls within the four comers of Section 3(3)(b) of the Act,
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namely, whether it limits or controls production, .supply, markets, technical
development, investment or provisions of services.
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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;"
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION
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COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]
,_,----~·
11. Definitions of certain other expressions and terms which are
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required to be noted are as follows:
"2 (1) "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 oftheCompanies Act, 1956 (1 ofl956);
(vii) any body corporate incorporated by or under the laws of a
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country outside lndia;
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(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
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preceding sub-clauses."
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2(m) "practice" includes any practice relating to the carrying on
of any trade by a person o~ an enterprise;
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2(r) "relevant market" means the market which ipay 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
aistinctly homogenous and can be distinguished from the conditions
prevailing in the neighbouring areas;
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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;
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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;
(d) accrual of benefits to ctmsumers;
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION
15
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]
( e) improvements in production or distribution of services; of goods
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or provision
(t) 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
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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 c
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 his report submitted
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to the CCI, opined that in the instant case 'relevant market' would be
the 'film and television industry of West Bengal'. He further recorded
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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
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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 l 0 (though CTVN+ continued to telecast), amounted
to restricting its commercial exploitation and was, therefore, unjustified.
He found that following conduct of the Coordination Committee
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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.
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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."
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 Ellv1,PA 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
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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'.
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COMPETITION COMMISSION OF INDIA v. CO-ORDINATION
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COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.] .
Likewise, it was not a 'person or 'association of persons' who
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were in the business of production, supply and distribution or providing
services etc. Therefore, their act would not fall under Section 3( l) of
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the Act.
(b) It was argued that the Coordination Committee was not in a
position to control production programming marketing and uplinking of B
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 c
interest of its members. It was their constitutional right to lodge such
protests under Article 19(l)(a) of the Constitution of India.
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
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a huge potential oflocal 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
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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 DO, being adverse to the
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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 DO 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
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case.
19. The CCI, after scanning through those objections, formulated
two questions which according to it fell for consideration. These
are:
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A Issue 1
B
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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 IO
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
D gave in by discontinuing the telecast of the serial. In t~is manner, first
issue was decided in the affirmative.
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Taking up the second issue, the majority members held that since
the Coordination Committee was not an 'enterprise', question ofbreach
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.