Fairplay and competition advocacy in Assam

Tanuj Goswami

(tanujuri03@gmail.com) & Umesh Kumar

It is gratifying that several landmark decisions of the Fairplay market regulator the 'Competition Commission of India' (CCI) has set precedents that will certainly be helpful in ensuring a just and equitable market where players are bound to honour the rules of games like their counterparts in other parts of the world.

Reports keep appearing in some national/regional newspapers regarding manipulation of government tendering process while awarding contracts of big hydroelectric projects, road construction etc., and even willful defiance or total disregard of procurement rules and procedure by some statutory bodies/agencies spotlight the dire need for more and more advocacy and a watertight process for compliance of fair play.

In an interesting case relating to the Belaire Apartment project's Buyers' Association (Gurgaon) versus the DLF (a real estate giant), the market regulator CCI brought to light how this real estate behemoth unabashedly resorted to unfair and most blatant practices and duped the apartment buyers, being indulged in serious abuse of its dominant position holding 45% of market share.

The CCI imposed a penalty of Rs 630 crore on DLF which is 7 per cent of its average turnover for the last three preceding financial years. Eventually, the Supreme Court bench consisting of three judges ordered the DLF to deposit Rs 630 crore for serious violation of section 4 of the anti-trust Act. This is the aptest and eye-opening case for the other real estate enterprises who should shun dreaming of following the footstep of DLF in utter disregard for buyer's rights and norms of fair play.

Here is another interesting case in point - the Commission's ruling of August 2018 against five major Indian

Tyre Companies-the JK Tyres, Birla Tyres, Apollo Tyres, MRF Tyres, Ceat Tyres and the Automotive Tyre Manufacturers Association (ATMA) faced the very unpleasant setback of having to be penalized over Rs 1788/ crore for their anti-competitive practices. The charges against the Tyre companies were exchange of price-sensitive data amongst themselves through their Association and taking of collective decision on prices of cross-ply/bias tyres in the replacement market, having indulged in limiting and controlling production and supply in the market by way of cartelization. The said companies and their association (ATMA) being aggrieved with the order of the Commission challenged it before the Madras High Court, but the court dismissed it vide its order dated 06.01.2022.

Finally, the companies approached the Supreme Court of India by filing a Special Leave Petition(SLP) which was also dismissed by the SC vide its order dated 28.01.2022.

This is one of the most recent cases of big Indian enterprises having been indicted for being on the wrong side of the law. Such blatant distortion of competition in the market is not only prejudicial to the consumers but seriously undermines the competitiveness of the market and the industry.

The Maruti-Suzuki India Limited (MSIL) was indicted for violation of Section 3(4)(e) of the Competition Act and imposed a penalty of Rs 200 crore for its anti-competitive resale price maintenance (RPM).

The MSIL prevented the car dealers from granting dealers discounts to the consumers and the MSIL went to the extent of appointing 'Mystery shopping Agencies' who acted as customers to find out if the dealers were offering additional discounts to the customers. If discounts were offered by the dealers the MSIL would send the 'mystery shopping audit report' to the dealer for its clarification and if the clarification was not tenable the MSIL would levy punitive action on dealers or stop supplies to dealers.

After Hyundai Motors it was the Maruti-Suzuki who was indicted by CCI for indulging in RPM with the imposition of fines to the tune of INR 200crore.

The CCI has already adjudicated an impressive array of more than 1100 anti-trust cases pertaining to a wide spectrum of sectors like sports, automobile, manufacturing, e-commerce, pharmaceutical etc.

The market regulator CCI in fact got off the ground in 2009 and wonderfully acted in the last 12 years towards the creation of a free, fair and unbiased competition market in India.

Meanwhile, in the last two years despite the Covid-induced odd situation, more than 70 no online advocacy programmes on Competition Act-2002 were successfully organized in Assam with different

stakeholders right from the Central and State PSUs, major Government departments, academic institutions, Chambers of Commerce, Government suppliers, Contractors to the Paramilitary forces like the CRPF-Eastern Command, ITBF, BSF and most of the district administration of Upper Assam and Barak Valley.

The advocacy programme under the State Resource Person Scheme gets going in order to expand the institutional as well as public awareness so that an informed citizenry can get the feel and witness the fruits of the competitive environment in our economy. Meanwhile, reports of feedback received from the participants are quite revealing in the sense that more than 98% of the participants (Government officials, Corporate Managers, traders, merchants, government contractors, suppliers, and academicians) were totally unaware of the Competition Act-2002, let alone its execution and compliance procedure in the country.

So considering the concept of competitiveness which indeed is a new phenomenon in a growing market economy, the out-reach programme has to be expanded to all kinds of educational institutions, NGOs, media, Civil societies, bar associations et al, so as to create awareness about competitive ambience and competition culture.

The country geared its transition to a market economy from 1991 and the process is still on with a lot of reform initiatives in every sector of the economy thus the state is enabling and adapting itself to high-end technology, digitization, AI etc.

The Compliance of Competition Act in public procurement has immense benefits for the nation as a whole and for the common people too, as public procurement is reported to devour more than 25-30% of our GDP and this astronomical figure can be scaled down to a big extent if the Act got implemented and complied with the right amount of honesty, integrity and sincerity of purpose.