My Article published and displayed by the Taxmann. Citation: [2015] 64 taxmann.com 232 (Article) The main aim behind the enactment of the Competition Act, 2002 was to promote efficiency using competition as one of the means of assisting in the creation of market responsive to consumers' preferences. Section 4 of the said Act prohibits abuse of dominance by any enterprise or group. Abuse of dominance has been dealt with in sub-sections 2(a) to 2(e) of section 4.

1. [2015] 64 taxmann.com 232 (Article)
BCCI’s Googly Bowl in Legal Battle
DR. RAJEEV BABEL
CS
Introduction
1. The main aim behind the enactment of the Competition Act, 2002 was to promote efficiency using
competition as one of the means of assisting in the creation of market responsive to consumers'
preferences. Section 4 of the said Act prohibits abuse of dominance by any enterprise or group. Abuse of
dominance has been dealt with in sub-sections 2(a) to 2(e) of section 4. Abuse of dominant position
means:
(a) imposition of unfair or discriminatory purchase or sale prices or conditions,
including predatory prices of goods or service;
(b) limiting or restricting production of goods or provision of service;
(c) indulge in practice or practices resulting in denial of market access in any manner;
(d) conclusion of contracts subject to acceptance by other parties of supplementary
obligations; and
(e) using dominant position in one market to enter into or protect other market.
Dominant position means a position of strength, enjoyed by an enterprise in the relevant market in
India, which enables it to:
operate independently or competitive forces prevailing in the relevant market; or
affect its competitors or consumers of the relevant market in its favour.
It is pertinent to note that the provisions of the Act do not prohibit a 'dominant position' per se, but the
abuse of such position.
Case of BCCI v. CCI
2. Recently a case titled, Board of Control for Cricket in India (BCCI) v. Competition Commission of
India (CCI) [2015] 55 taxmann.com 316 (CAT), dated 23rd
February, 2015, came up before the
Competition Appellate Tribunal (CAT), which involved invoking of section 4.
2.1 Facts of the case :
BCCI is a society registered with the primary objectives of controlling the game of

2. cricket in India, promoting the game in India, framing the laws of cricket in India,
selecting teams to represent India in test matches, ODIs and twenty 20 matches
played in India or abroad. It is a 'full member' of the International Cricket Council
(ICC).
The allegations were levelled by a cricket fan, on the three dimensions of
organization of Indian Premier League (IPL), a twenty 20, professional cricket
league tournament conducted by BCCI, viz.,
• irregularities in the grant of franchise rights for team ownership,
• irregularities in the grant of media rights for coverage of the league; and
• irregularities in the award of sponsorship rights and other local contracts related to
organization of IPL.
The DG investigated the matter and came to a finding that BCCI was an enterprise
which had abused its dominant position in the relevant market in contravention of
section 4.
The appellant filed detailed reply, dated 7-6-2012 to contest the findings recorded
by the DG on the issues of relevant market, its dominant position in the relevant
market, abuse of dominant position and violation of section 4.
The CCI thereafter passed the impugned order holding that owing to regulatory role
in sport of cricket, monopoly status, control over infrastructure, control over
players, ability to control entry of other leagues, historical evidences, BCCI had
abused its dominant position in market for organizing private professional league
cricket events in India. It also directed it to 'cease and desist' from any practice in
future that denied market access to potential competitors.
This appeal was preferred by BCCI against the order of CCI, dated 8-2-2013, by
which the CCI held that the appellant was guilty of contravention of section 4(2)(c)
of the Competition Act, 2002 ('the Act') and imposed penalty of Rs. 52.24 Crore
(being 6% of the average annual revenue of BCCI for past three years as per the
provisions of section 27(b) of the Act).
Aggrieved by the decision of the CCI, the BCCI appealed before the Competition Appellate Tribunal
( CAT):
The CAT opined in the matter as under:
While holding an inquiry under section 26(7) or section 26(8), the CCI is required
to comply with the rule of 'audi alteram partem' (a Latin phrase that means "listen
to the other side") and give an effective opportunity of hearing to the person against
whom a finding is likely to be recorded on the issue of contravention of section 3 or
section 4 not only to controvert the allegation made against him as also the
evidence/material proposed to be used in support of such an allegation but also
produce evidence to show that he/she/it has not violated any provision of the Act.
If the CCI wants to rely upon some information/material, which does not form part
of the report of the Director General (DG), then such information/material must be
disclosed to the person concerned and an effective opportunity has to be given to
him to controvert the same.
The Secretary of the CCI has made an attempt to show that there is no difference in
the finding/conclusion recorded by the DG and the CCI on the issue of 'relevant
market'. The appellant got full opportunity to show that Organization of Private
Professional Cricket League/Events in India constituted the 'relevant market', but
she has not disputed that in the order passed under section 26(1), the CCI had
clearly mentioned that its focus was on the underlying economic activities which
are ancillary for the organization of sports events. She has also not disputed that
the DG made investigation keeping in view the allegations contained in the
information and the points formulated by the CCI and recorded a finding that the

3. 'relevant market' was underlying activities which are ancillary for organization of
cricket in twenty 20 format with respect to the IPL tournament.
A careful scrutiny of the record reveals that while directing its Secretary to forward
the report of the DG to the appellant, the CCI had nowhere indicated that it did not
agree with the finding recorded by the DG on the issue of 'relevant market' and the
appellant should show as to why Organization of Private Professional Cricket
League/Events in India may not be treated as the 'relevant market'.
It was, thus, evident that the appellant did not get any opportunity to contest the
proposed determination of the 'relevant market' by the CCI.
It was also worth mentioning that the appellant was served with copy of the DG's
report in two instalments and was called upon to file its objections/suggestions.
Therefore, it was natural for the appellant to file reply only with reference to the
findings and the conclusions recorded by the DG. The CCI was expected to hear the
appellant in the context of objections/suggestions filed in the context of the
findings recorded by the DG. If the CCI wanted to differ with the DG on the issue of
relevant market, then it should have given notice spelling out its intention to do so
and give an opportunity of hearing to the appellant, which was, admittedly, not
done. Therefore, there was no escape from the conclusion that the finding recorded
by the CCI, that Organization of Private Professional Cricket League/Events in
India was the 'relevant market' vitiated due to violation of the rule of audi alteram
partem.
The CCI could not rely upon TRPs ratings available at www.indiantelevision. com;
the news reports relating to the price of advertisement slots during a screening of a
movie '3 Idiots' and general entertainment programmes such as 'Saath Nibhana
Saathiya' in comparison to the advertisement slots during the IPL; news reports
showing an increase in revenue market share of 'Set Max' from Pre-IPL to Post-IPL;
KPMG-FICCI report on media and entertainment in order to show that sports
viewership needs increase in India; TAM ratings to compare viewership of various
sports events like Cricket World Cup, 2007, the Olympics - 2004, the FIFA World
Cup, 2006, etc.
• Firstly, the Secretary of the CCI had virtually admitted that the CCI relied on the so
called information available in public domain without disclosing the same to the
appellant. Thus, the CCI's failure to disclose the information/material proposed to
be used by it for arriving at a finding on the issue of abuse of dominance and give
an opportunity to the appellant to explain/controvert the same had not only
resulted in violation of the principles of natural justice but also occasioned failure
of justice.
• Secondly, the so called information available in the public domain could not have
been used by the CCI because no one had appeared in the witness box to prove the
same. The information downloaded by the CCI from the internet and similar
sources could, at best be compared with newspaper reports and it has been
consistently held by the Supreme Court that such reports have no evidentiary value
without further proof.
• Thirdly, relying upon the judgments in Samant N. Balakrishna v. George
Fernandez [1969] 3 SCC 238, Manmohan Kalia v. Yash [1984] 3 SCC 499, Laxmi
Raj Shetty v. State of Tamil Nadu [1988] 3 SCC 319, State of Haryana v. Bhajan
Lal [1993] 3 SCC 151, Quamarul Islam v. S.K. Kanta [1994] Supp. 3 SCC 5, R. P.
Luthra v. CBI [W.P. (Crl.) 1520 of 2014], Anvar PV v. P.K. Basheer [2014] 10
SCALE 660 it was held that the finding recorded by the CCI on the issue of abuse of
dominance was legally unsustainable and was liable to be set aside because the
information downloaded from the net and similar other material did not have any
evidentiary value and, in any case, the same could not have been relied upon by the
CCI without giving an effective opportunity to the appellant to controvert the same.
2.2 Decision in the case - The CAT allowed the appeal preferred by BCCI, and the impugned order

4. of CCI was set aside and the matter was remitted to the CCI for fresh disposal in accordance with law.
Concluding remarks
3. The discussions/arguments in the above case set out the time tested theory of the principles of
natural justice, which have been considered by the Courts across the globe. In India, the High Courts
and the Supreme Court have invoked these principles in innumerable cases and quashed
administrative, quasi-judicial or even judicial orders on the ground of violation thereof.
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