Full Judgment Text
*IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of decision: 16 September, 2011
+ W.P.(C) 6744/2011
ANUJ KUMAR BHATI ..... Petitioner
Through: Mr. Sunder Khatri, Adv.
Versus
SONY ENTERTAINMENT
T.V. (SET) & ORS ..... Respondents
Through: Mr. Pallav Saxena, Adv. with Dr.
Satya Prakash, Director (Law),
Competition Commission of India .
CORAM : -
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition impugns the orders dated 25.07.2011 & 18.08.2011 of
the Competition Appellate (Comp. AT).
2. The genesis of litigation is in a writ petition being W.P.(C)
No.2215/2006 earlier preferred by the petitioner in this Court with respect
W.P.(C)6744/2011 Page 1 of 7
to television show “Kaun Banega Crorepati-2 (KBC)”, averring that
though the petitioner had spent large sums of monies in his attempt to
participate in the said show but had not been able to; that the organizers of
the show were duping the participants of crores of rupees and indulging in
foul play and were selecting persons to finally contest the show and win
the cash or kind prizes instead of the same being done as per the procedure
advertised. The petitioner had in the said writ petition claimed payment of
the monies spent by him. The said writ petition was entertained.
However, during the pendency thereof, the television show came to an end
and when another season thereof was started, the writ petition was
converted into a Public Interest Litigation (PIL).
3. The said writ petition was finally disposed of by a Division Bench of
this court vide order dated 27.04.2007. This Court held that since the relief
claimed by the petitioner also was, that the matter be directed to be
investigated inter alia by the Monopolies & Restrictive Trade Practices
Commission (MRTPC), and finding subject matter of the petition to fall
within the domain of MRTPC and further finding that the matter entailed
disputed questions, the writ petition was disposed of with the direction to
W.P.(C)6744/2011 Page 2 of 7
the petitioner to approach the MRTPC.
4. The petitioner thereafter approached MRTPC and upon
promulgation and coming into force of the Competition Act, 2002, the said
petition was transferred to the Comp. A.T.
5. The petitioner also filed a independent complaint under Section 19
of the Competition Act before the Competition Commission of India (CCI)
with the same grievance as in the complaint earlier preferred before
MRTPC.
6. The CCI, vide order dated 29.03.2011 dismissed the complaint of
the petitioner under Section 19. It was inter alia held that the allegations
of the petitioner are to be tested in the light of the opposite party being in a
dominant position and thus discriminating in selection of contestants for
participation in the programme / show and adopting unfair means therein;
however on the basis of viewership ratings, it was found that the share of
viewers of the said television show was not so much for which it could be
said that the show was in a dominating position. Accordingly, it was held
that no case of violation of provisions of Section 3 or Section 4 of the
Competition Act was made out and thus need was not felt to refer the
W.P.(C)6744/2011 Page 3 of 7
matter to the Director General for further investigation.
7. The petitioner preferred an appeal under Section 53B of the
Competition Act against the order aforesaid of CCI to the Comp. A.T.
8. The Comp. A.T. vide order dated 25.07.2011 impugned in this
petition, dismissed the proceedings received on transfer from MRTPC as
infructuous for the reason of the petitioner having preferred a complaint
under Section 19 of the Competition Act on some facts and the same
complaint having been dismissed and appeal having been preferred
thereagainst.
9. The Comp. A.t. vide order dated 18.08.2011 impugned in this
petition has also dismissed the appeal of the petitioner holding that the
conclusions reached by the CCI that the television show was not in a
dominant position was a factual conclusion, correctness whereof had not
been questioned, and thus the confirmed the order of CCI .
10. The argument of the counsel for the petitioner is two fold. Firstly,
that the CCI could not have returned a finding contrary to the findings of
the Division Bench of this Court in the writ petition aforesaid and
secondly, that without investigation being done, the complaint could not
W.P.(C)6744/2011 Page 4 of 7
have been dismissed.
11. As far as the second of the aforesaid contentions is concerned, the
counsel for the petitioner admits that it was/is not mandatory, neither under
the Monopolies & Restrictive Trade Practices Act, 1969 nor under the
Competition Act, 2002, that investigation by the Director General should
be ordered immediately on receipt of the complaint / petition. In the face
of the said admitted position in law, the petitioner unless makes out a case
for investigation, cannot insist upon the investigation. The counsel for the
petitioner has however contended that the finding of the CCI that the
television show in question was not in a dominant position is conjecturous.
It is contended that the said finding also could have been returned only
after investigation.
12. It may however be noticed that neither in the writ petition it is stated
that the finding of the subject television show not being in a dominant
position is incorrect nor any document in this regard is shown. The
viewership ratings / figures are now published / advertised widely and no
error can be found especially when it was not disputed before the Comp.
A.T. and not disputed before this Court that the finding of the CCI of the
W.P.(C)6744/2011 Page 5 of 7
subject television show being not in a dominating position.
13. Coming back to the first contention of the counsel for the petitioner,
the counsel for the petitioner has invited attention to para 6 of the order of
the CCI upheld by the Comp. A.T. and contended that the observations
therein are contrary to the observations in para 14 of the order of the
Division Bench of this Court. Similarly, it is contended that the
observations of the CCI in para 7 of the order are contrary to the
observations in para 5 of the judgment of the Division Bench.
14. In this regard, it may also be noticed that the order of the Division
Bench of this Court was subject matter of SLP (C) No.8392/2007 which
was disposed of on 16.08.2010 with the observation that MRTPC will not
be influenced by observations of the Division Bench of this Court and shall
make an independent assessment on the merits inter se of the parties.
15. Besides the aforesaid, I am unable to find any inconsistencies as
alleged. Para 5 of the judgment of the Division Bench to which attention is
invited merely records the contentions of the petitioner before this Court
and does not return any finding. Similarly, merely because this Court
while disposing of the writ petition for the reasons of the matter required to
W.P.(C)6744/2011 Page 6 of 7
be considered by the MRTPC observed that it may require investigation,
did not mandate the CCI to investigate the matter if otherwise no case of
maintainability of complaint was made out.
16. As far as the maintainability of the complaint is concerned, neither
has any ground been taken in the writ petition not has been urged during
the course of hearing.
17. There is thus no merit in the petition. The same is dismissed. The
petitioner to deposit costs of ` 5,000/- with the Delhi High Court Bar
Association Lawyers‟ Social Security & Welfare Fund within four weeks.
RAJIV SAHAI ENDLAW
(JUDGE)
SEPTEMBER 16, 2011
„gsr‟
W.P.(C)6744/2011 Page 7 of 7
th
Date of decision: 16 September, 2011
+ W.P.(C) 6744/2011
ANUJ KUMAR BHATI ..... Petitioner
Through: Mr. Sunder Khatri, Adv.
Versus
SONY ENTERTAINMENT
T.V. (SET) & ORS ..... Respondents
Through: Mr. Pallav Saxena, Adv. with Dr.
Satya Prakash, Director (Law),
Competition Commission of India .
CORAM : -
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition impugns the orders dated 25.07.2011 & 18.08.2011 of
the Competition Appellate (Comp. AT).
2. The genesis of litigation is in a writ petition being W.P.(C)
No.2215/2006 earlier preferred by the petitioner in this Court with respect
W.P.(C)6744/2011 Page 1 of 7
to television show “Kaun Banega Crorepati-2 (KBC)”, averring that
though the petitioner had spent large sums of monies in his attempt to
participate in the said show but had not been able to; that the organizers of
the show were duping the participants of crores of rupees and indulging in
foul play and were selecting persons to finally contest the show and win
the cash or kind prizes instead of the same being done as per the procedure
advertised. The petitioner had in the said writ petition claimed payment of
the monies spent by him. The said writ petition was entertained.
However, during the pendency thereof, the television show came to an end
and when another season thereof was started, the writ petition was
converted into a Public Interest Litigation (PIL).
3. The said writ petition was finally disposed of by a Division Bench of
this court vide order dated 27.04.2007. This Court held that since the relief
claimed by the petitioner also was, that the matter be directed to be
investigated inter alia by the Monopolies & Restrictive Trade Practices
Commission (MRTPC), and finding subject matter of the petition to fall
within the domain of MRTPC and further finding that the matter entailed
disputed questions, the writ petition was disposed of with the direction to
W.P.(C)6744/2011 Page 2 of 7
the petitioner to approach the MRTPC.
4. The petitioner thereafter approached MRTPC and upon
promulgation and coming into force of the Competition Act, 2002, the said
petition was transferred to the Comp. A.T.
5. The petitioner also filed a independent complaint under Section 19
of the Competition Act before the Competition Commission of India (CCI)
with the same grievance as in the complaint earlier preferred before
MRTPC.
6. The CCI, vide order dated 29.03.2011 dismissed the complaint of
the petitioner under Section 19. It was inter alia held that the allegations
of the petitioner are to be tested in the light of the opposite party being in a
dominant position and thus discriminating in selection of contestants for
participation in the programme / show and adopting unfair means therein;
however on the basis of viewership ratings, it was found that the share of
viewers of the said television show was not so much for which it could be
said that the show was in a dominating position. Accordingly, it was held
that no case of violation of provisions of Section 3 or Section 4 of the
Competition Act was made out and thus need was not felt to refer the
W.P.(C)6744/2011 Page 3 of 7
matter to the Director General for further investigation.
7. The petitioner preferred an appeal under Section 53B of the
Competition Act against the order aforesaid of CCI to the Comp. A.T.
8. The Comp. A.T. vide order dated 25.07.2011 impugned in this
petition, dismissed the proceedings received on transfer from MRTPC as
infructuous for the reason of the petitioner having preferred a complaint
under Section 19 of the Competition Act on some facts and the same
complaint having been dismissed and appeal having been preferred
thereagainst.
9. The Comp. A.t. vide order dated 18.08.2011 impugned in this
petition has also dismissed the appeal of the petitioner holding that the
conclusions reached by the CCI that the television show was not in a
dominant position was a factual conclusion, correctness whereof had not
been questioned, and thus the confirmed the order of CCI .
10. The argument of the counsel for the petitioner is two fold. Firstly,
that the CCI could not have returned a finding contrary to the findings of
the Division Bench of this Court in the writ petition aforesaid and
secondly, that without investigation being done, the complaint could not
W.P.(C)6744/2011 Page 4 of 7
have been dismissed.
11. As far as the second of the aforesaid contentions is concerned, the
counsel for the petitioner admits that it was/is not mandatory, neither under
the Monopolies & Restrictive Trade Practices Act, 1969 nor under the
Competition Act, 2002, that investigation by the Director General should
be ordered immediately on receipt of the complaint / petition. In the face
of the said admitted position in law, the petitioner unless makes out a case
for investigation, cannot insist upon the investigation. The counsel for the
petitioner has however contended that the finding of the CCI that the
television show in question was not in a dominant position is conjecturous.
It is contended that the said finding also could have been returned only
after investigation.
12. It may however be noticed that neither in the writ petition it is stated
that the finding of the subject television show not being in a dominant
position is incorrect nor any document in this regard is shown. The
viewership ratings / figures are now published / advertised widely and no
error can be found especially when it was not disputed before the Comp.
A.T. and not disputed before this Court that the finding of the CCI of the
W.P.(C)6744/2011 Page 5 of 7
subject television show being not in a dominating position.
13. Coming back to the first contention of the counsel for the petitioner,
the counsel for the petitioner has invited attention to para 6 of the order of
the CCI upheld by the Comp. A.T. and contended that the observations
therein are contrary to the observations in para 14 of the order of the
Division Bench of this Court. Similarly, it is contended that the
observations of the CCI in para 7 of the order are contrary to the
observations in para 5 of the judgment of the Division Bench.
14. In this regard, it may also be noticed that the order of the Division
Bench of this Court was subject matter of SLP (C) No.8392/2007 which
was disposed of on 16.08.2010 with the observation that MRTPC will not
be influenced by observations of the Division Bench of this Court and shall
make an independent assessment on the merits inter se of the parties.
15. Besides the aforesaid, I am unable to find any inconsistencies as
alleged. Para 5 of the judgment of the Division Bench to which attention is
invited merely records the contentions of the petitioner before this Court
and does not return any finding. Similarly, merely because this Court
while disposing of the writ petition for the reasons of the matter required to
W.P.(C)6744/2011 Page 6 of 7
be considered by the MRTPC observed that it may require investigation,
did not mandate the CCI to investigate the matter if otherwise no case of
maintainability of complaint was made out.
16. As far as the maintainability of the complaint is concerned, neither
has any ground been taken in the writ petition not has been urged during
the course of hearing.
17. There is thus no merit in the petition. The same is dismissed. The
petitioner to deposit costs of ` 5,000/- with the Delhi High Court Bar
Association Lawyers‟ Social Security & Welfare Fund within four weeks.
RAJIV SAHAI ENDLAW
(JUDGE)
SEPTEMBER 16, 2011
„gsr‟
W.P.(C)6744/2011 Page 7 of 7