International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212:Volume 4 Issue 2 178

THE CRITICAL ANALYSIS OF THE COMPETITION LAW IN INDIA:

WITH SPECIAL REFERENCE TO THE ABUSE OF DOMINANT
POSITION
Rini Violet Tigga

Abstract

Dominance in law implies that a firm has a high degree of immunity from the normal
disciplining forces of rival’s competitive reactions and consumer behavior .on the other hand,
dominance as an economic concept is associated with the notion of market power. The Indian
Competition Law, the Competition Act of 2002, like other modern competition laws covers
agreements, abuse of dominant position and mergers. Under the Competition Act of India,
section 4 deals with Abuse of Dominance or dominant position by an enterprise or a group. The
ultimate concern of the competition law is about market power and its abuse. The Law of
Competition in India seeks to ensure fair competition by prohibiting trade practices which cause
appreciable adverse effect on competition in markets within India. Market power is used to
mean the ability of enterprises to raise price above the level that would prevail under the
competitive conditions.

The Competition law prohibits the use of market controlling position to prevent individual
enterprises or a group from driving out competing businesses from the market as well as from
dictating prices. The concept of abuse of dominant position of market power refers to anti-
competitive business practices in which dominant firm may engage in order to maintain or
increase its position in the market.

Theoretical Research methodology has been used in this paper to conduct the study. This paper
includes a study on what is dominance in market and how this dominant position is abused it
also deals with collective dominance and the concept of predatory pricing.

Keywords: Dominance, Abuse of Dominant Position, Predatory pricing, etc

© Universal Multidisciplinary Research Institute Pvt Ltd

INTRODUCTION
There is nothing like “Pure” or “perfect” competition as expressed in a theoretical market
structure. This is just a benchmark which is used to satisfy the actual working market
structures. But in a situation where not the buyer or the seller has a direct implication over the
price of the product or services it produces, the demand and supply are influenced by the price.
The independent bargaining of buyers and suppliers is the way by which the price is established.
None of the parties involved are not that financially big to have the market power to manipulate
the price of a homogeneous product. Customers business which leads to competition forces the
producers to battle for achieving the required needs for the same by innovating and developing
new products.1

The Competition Act regulates to make a safe and fair environment which in turn prohibits or
prevents the “abuse of dominance” by an „enterprise or undertaking‟ for a smooth and healthy
competition. The Competition Commission of India (CCI) in Reliance Big Industries & Ors v
Karnataka Film Chamber of Commerce & Ors, held that only the actions of an „undertaking‟ can
be explained under the provisions of section 4 of the Competition Act. For the idea and the moral
behind the Act, a person or a department of the government engaged in any activity relating to
the production, storage, supply, distribution, acquisition or control of articles or goods, or the
provision of services, would constitute an „enterprise‟.2

To understand the existence of dominance we need to also understand the CCI‟s definition of the
relevant market as it differs from case to case, which is based on the kind of factual matrix. In

1
Sneha Singh & Syed Ahmed, Abuse Of Dominant Position Academike (2015),
http://www.lawctopus.com/academike/perfect-competition-and-abuse-of-dominant-position/ (last visited Feb 15,
2015).
2
COMP ACT sec 2 sub section h
the non presence of regulations for defining the relevant market, the CCI does not follow the
general approach in delineating the relevant market. As such, the CCI has restricted the relevant
geographic market to particular suburbs in some cases (such as Belaire Owners’ Association v
DLF Limited3 and Mr Om Datt Sharma v M/s Adidas AG & Ors)4 and has, without any specific
differentiation, defined the relevant market on an „all India basis‟ in other cases. A narrow
definition of the relevant market only facilitates establishing an entity‟s dominance.5

Dominance on the other hand is dependent upon the position of economic superiority cherished
by an undertaking, which gives it the power to prohibit any kind of efficient competition being
followed in a relevant market by giving it the authority to act to an appropriate extent
irrespective of its competitors. Dominance means acquiring the market power, which authorizes
the undertaking to manipulate the price or its production independently of its competitors.
Dominant position has to be determined in the relevant market and the factors for such
determination are provided in the Act. On the face of it “Dominance” is not bad it is the
“Dominant position” which is prohibited by the law. The anti – competitive entrepreneur action
encourages a dominant undertaking to involve it with practices, to increase its position in market.
Competition rules and laws prohibit such kind of behavior, as it damages true spirit of
competitions between the undertakings and exploits the relationship between them and
consumers. 6

DOMINANT POSITION
“Overriding” or “influential” are the dictionary meanings to the term “Dominant.” Predatory in
this sense on the other hand means dominating exploitation for acquiring financial purpose or
gains. A undertaking holding a position which is “dominating” is only possible if it has the
ability to behave independently or separately without the fear of its competitors, customers,
suppliers and, the ultimate consumer. Market being held by such power of the dominating

3
Belaire Owner’s Association v. DLF Ltd., Case no. 19 of 2010. Decided on 12 August 2011.

4
Mr Om Datt Sharma v M/s Adidas AG & Ors Case No. 10 of 2014.

5
D. P. MITTAL, COMPETITION LAW & PRACTICE (3 ed. 2010).
6
Abuse o Dominant Position, Legalservicesindia.com (2002),
http://www.legalservicesindia.com/article/article/abuse-o-dominant-position-729-1.html (last visited Jun 22, 2002).
undertaking gives it the control of manipulating the price as per its wishes or needs. This will
enable them to sell products or services of lower quality or lower cost of innovation below the
level in which it actually exists in a competitive market.7

Dominant position has two major aspects:

Firstly, dominant enterprise‟s position such as it enables it to operate independent of competitive

forces generated by its rivals. This is important because healthy competition among competitors
promotes productive and allocate efficiencies and optimizes consumer surplus. So if an
enterprise takes measures with intention to create entry barriers, drive out existing rivals, control
output or price, it causes concerns.

Secondly, the aspect of dominance given in explanation (a)(ii) to section 4 of the Act relates to
the ability of an enterprise to affect its competitors or consumers or the relevant market. In sense,
this is higher degree of strength where an enterprise may be freely able to adopt price or non-
price strategy to overcome downward pressures on its profit from its competitor, or to capture or
bind consumer or to create a market environment that would deter newer completion, both in
terms of competing enterprises or rival products.8

Determination of dominant position depends upon two main factors – market share and entry
conditions. It is important to note that to achieve a dominant position by legitimate means, such
as through product innovation, superior production or distribution techniques or through greater
entrepreneurial efforts. The Competition Commission of India has recognized certain conditions
while determining the agreements dominant status as per section 19 of the Competition Act. The
determination of the dominant position though market share, sales figures and active stock. But
in most cases the market power is determined on the basis of the functional characteristics, of the
products on the pattern of consumer behavior.

7
Ateliers Paris, Dominant position - Institute of Competition Law Concurrences.com (2017),
http://www.concurrences.com/en/droit-de-la-concurrence/glossary-of-competition-terms/Dominant-position (last
visited Feb 15, 2017).
8
VERSHA VAHINI, INDIAN COMPETITION LAW (1 ed. 2017).
Section 19 basically highlights the duty on the Competition Commission to look at these aspects
while dealing with the factors of dominant position by this we can conclude as to consider these
crucial steps while establishing whether an enterprise holds a dominant position and whether it is
abusing it-

1. Defining the relevant market.

2. Assessing the market strength to ascertain whether the enterprise holds significant power.
3. Consider whether the conduct of the undertaking amounts to abuse.9

ABUSE OF DOMINANCE

The idea of the concept of “abuse” is very objective as it relates to the behavior of the
undertaking placing itself into the dominant position so as to influence the structure of a market.
This results in the presence of the dominant entity in the market and the degree of competition is
weakened by the recourse of methods undertaken by the entity which is different from those
conditions which are generally normal in competition of products or services transactions of
commercial operators. This has an effect which hinders the maintenance of a healthy degree of
competition which is still existing in the market and the growth of that competition.

The whole idea behind keeping a regulation or Act for the fare competition in the market is that a
situation of monopoly on the face of it is not against public welfare policy but to use the same
status in which it operates to the advantage of its full potential and in front of the actual
competitors. The Act does not prohibit the undertakings to become the “dominant” player or
having a “dominant” position. There is no physical control preventing the undertaking from
becoming dominant or superior. The moral and goal of the Act is to prohibit the “Abuse” of the
dominant position. The Act on the face of it prohibits “abuse of dominance“ not “dominant
position”. This is the moral behind the Act which is fair and is a step towards a economy which
is truly global and liberal.

9
Sneha Singh & Syed Ahmed, Abuse Of Dominant Position Academike (2015),
http://www.lawctopus.com/academike/perfect-competition-and-abuse-of-dominant-position/ (last visited Feb 15,
2015).
Therefore just because an undertaking withholds a position which is dominant does not mean it
is breaking or not abiding by the law. The “hugeness” of few undertakings is very natural and
even essential, as because of this hugeness there is a need or requirement for industrial
efficiency and innovation in marketing and production. The provisions of the Competition Act
will interfere in market situations where the size of the undertaking effects the fair competition.
An oligopolistic market needs these provisions under Section 4 to prevent these big undertakings
from swiping out the independent and comparatively small businesses from the market and from
dictating prices.10

An undertaking is said to have “abused its dominant position” when it directly or indirectly
carries out unfair, bias and discriminatory market conditions, hence eliminating its competitors.
It strengthens its position by abiding to unfair means which is outside the circle of a healthy
competition driven market and equality. For example: X is a businessman and enjoys a dominant
position in the food market as he keeps huge stocks of vegetables and most of the retailers get
supplies from him, which is the reason for which he enjoys a dominant position. And one day X
purchases about 80 percent of the total produce of onions and then refuses to supply the same to
the retailers, as a result the supply of tomatos in the market has diminished and demand for
tomatos has increased, as tomatos form the base of Indian cooking. As the demand for tomatos
has increased the price of tomatos has gone up as well, so when the price of tomatos increased X
sold all of the tomatos at a premium rate and made a huge profit. This act done by X is called as
abusing of one‟s dominant position. The consumers in need of tomatos will buy them at
whatever price X will dictate.

These are the few types of „abuse of dominant position’ situation analyzed as under-

1. Predatory Pricing- As per section 4(b) of the Act it explains it as the practice by which
the sale of goods or the provision of services, is at a rate of price which is lower the cost
price with the view to reduce the competition or eliminate the competitors.

10
Abuse of Dominant Position In India, Ssrana.in (2017),
http://www.ssrana.in/Intellectual%20Property/Competition%20Law/Abuse-of-Dominant-Position-in-India.aspx (last
visited Feb 15, 2017). ttp://www.ssrana.in/Intellectual%20Property/Competition%20Law/Abuse-of-Dominant-
Position-in-India.aspx
 2. Refusal to supply- This practice involves purposefully withholding the supply of the
product or service thus increasing the demand for the same and then forcing the
customers to buy the product or service at a higher price thus manipulating the needs of
the customer. This act of refusal has a major negative impact on the state of fair
competition in the relevant market.
3. Limiting Supply- The practice of limited supply of products of luxurious and precious
nature thus having the advantage of raising the price because of its scarcity. The
appropriate example for this is the diamond market, though large quantities of them are in
kept in storage, only a small quantity is only polished and made available to the
customers, thus resulting in its high price.
4. Barriers to entry or denial of the market assess - Barriers to entry includes patent as well
as strategic first mover advantages.
5. A group of colluding multiple suppliers appreciably affecting the relevant market.11

INDIAN COMPETITION ACT

The Competition Act provides in section 4 for the prohibition of abuse of dominant position:
Section 4: Abuse of Dominant Position:
(1) No enterprise shall abuse its dominant position.
(2) There shall be an abuse of dominant position under sub-section (1), if an enterprise,—
(a) directly or indirectly, imposes unfair or discriminatory—
(i) condition in purchase or sale of goods or services; or
(ii) price in purchase or sale (including predatory price) of goods or service; or
Explanation.—For the purposes of this clause, the unfair or discriminatory condition in
purchase or sale of goods or services referred to in sub-clause (i) and unfair or
discriminatory price in purchase or sale of goods (including predatory price) or service
referred to in sub-clause (ii) shall not include such discriminatory conditions or prices
which may be adopted to meet the competition; or
(b) limits or restricts—
(i) production of goods or provision of services or market therefor; or

11
Sneha Singh & Syed Ahmed, Abuse Of Dominant Position Academike (2015),
http://www.lawctopus.com/academike/perfect-competition-and-abuse-of-dominant-position/ (last visited Feb 15,
2015).
 (ii) technical or scientific development relating to goods or services to the prejudice of
consumers; or
(c) indulges in practice or practices resulting in denial of market access; or
(d) makes conclusion of contracts subject to acceptance by other parties of supplementary
obligations which, by their nature or according to commercial usage, have no connection with
the subject of such contracts; or
(e) uses its dominant position in one relevant market to enter into, or protect, other relevant
market. Explanation .—For the purposes of this section, the expression—
(a) “dominant position” means a position of strength, enjoyed by an enterprise, in the relevant
market, in India, which enables it to—
(i) operate independently of competitive forces prevailing in the relevant market; or
(ii) affect its competitors or consumers or the relevant market in its favour;
(b) “predatory price” means the sale of goods or provision of services, at a price which is below
the cost, as may be determined by regulations, of production of the goods or provision of
services, with a view to reduce competition or eliminate the competitors.

The provision of the Competition Act in relation to abuse of dominant position clearly explains
above that no undertaking or group shall abuse its dominant position. The dominant position is
explained in the explanation to section 4 as a position of strength in the relevant market in India.
The illustrations are inclusive and exhaustive. Section 4 explanation, raises many possible ways
by which such a strength could be used. These possibilities can be clearly examined separately or
in a combined manner, depending upon the each of the facts of the case.

The Explanation to section 4(2) (a) makes them immune from unfair or discriminatory trading
situations or unfair or discriminatory prices rate or predatory pricing as referred in section 4(2)
(a) (i) and (ii), preparing out those practices which are dominant in nature, from being referred as
an “abuse of a dominant position” to meet competition. On the basis for this argument made by
the undertakings who are involved in the competition and reformulating their trade practice
strategies or plans to adhere to demand offer of competitors in a market as it grows, there is no
„abuse‟ by any of the undertaking. They are only reciprocating to the changing market situations.
for example, if rate of a product falls in the market, for reasons not none to the action of an
undertaking, a decrease in the rate of the product by that undertaking to match its rate to the new
rate cannot be tagged as unfair rating or predatory pricing. This explanation could be used as
defense that may be used by one blamed for having abused a dominant position under section
4(2) (a). It should be noted that it is not available in the case of allegations of practices set out in
section 4(2) (b) to (e)12

INDIAS POSITION AND CASES

There are many cases that have come up for consideration before the CCI regarding abuse of
dominant position.13 Recently, a decision with far – reaching consequences was handed down by
the CCI, involving all the major car manufacturers and suppliers in India. The issue was
regarding restriction on completion by the car manufacturers on sale of spare parts in the
downstream market.

Transportation sector Case: In Shri Shamsher Kataria14 two levels of market were identified.
One is the primary market for „sale of cars in India‟, and two aftermarkets, at secondary level,
are market for „sale of spare parts‟ and market for „repair and maintenance services‟. Original
Equipment Manufacturers (OEM‟s) argued that there is no such division as primary and
secondary markets and there is only one „system market‟.
It was by the CCI observation the two aspects were determined so as to see the capability to
affect competitors and consumers, market share and entry conditions. Regarding market share, it
was noted by the CCI that OEM‟s have 100 percent share in the aftermarket for their own brand
of cars. This is because of the inter- and intra brand non substitutability of spare parts of one
brand with other, due to high degree of technical specificity. In the absence of substitutability,
OEM‟s were shielded from any competitive constraints in the aftermarkets from their
competitors in the primary market. Moreover, through a network of contracts, OEM‟s became
the sole supplier of their own brand of spare parts and diagnostic tools in the aftermarket and
shielded themselves from any competition. This means that OEM‟s have 100% share in their
own brand of cars.

12
Shodhganga (2017), http://shodhganga.inflibnet.ac.in/bitstream/10603/74926/7/chapter%204.pdf (last visited Feb
15, 2017).
13
nlujodhpur (2017), http://www.nlujodhpur.ac.in/downloads/clawcerque1.pdf (last visited Feb 15, 2017).
14
Shri Shamsher Kaaria v. Honda Siel, MANU/CO/0066/2014:2014 Comp LR 1 (CCI).
Hospital Case: In Ramakant Kini15, the DG suggested „provision of maternity services by super
specialist hospitals‟ to be the relevant product market and „area within a distance of 0-12km from
OP hospital‟ as the relevant geographical market. This was suggested by the DG on the basis of
the inflow of patients from different wards to the hospital. The DG found that 63.70% of the
maternity patients in the hospital were coming from certain areas. The opposite party, on the
other hand, contended that relevant geographical market should not be bound to 12 km distance
travelled, but should also include a catchment area where the patient ahs to travel 16-20km or
roughly 12 crow flight(straight line), The CCI finally held relevant market to be of “provision of
maternity services by super specialty /high end hospitals within a distance of 0-12km from the
Hiranandani Hospital covering S, L, n, K/E, T and P/S wards of the Municipal Corporation of
Greater Mumbai”. Thus CCI in this case concluded that the opposite party hospital is not
dominant in the relevant market of „provision of maternity services by superspecialty/high end
hospitals within a distance of 0-12 km from the Hiranandani Hospital covering S, L, n, K/E, T
and P/S wards of the Municipal Corporation of Greater Mumbai.

Media Case: In Ajay Degn Films16, the informant alleged that the opposite party is tying up two
of its films and is forcing single-screen theatres to buy either two or none. It was averred that the
opposite party released its mega – starrer film Ek Tha Tiger on 15 August 2012 was
contemplating to release another untitled film, later name as Jab Tak Ha Jaan (JTHJ), at the time
of Diwali. The opposite parties before the release of Ek Tha Tiger had put a condition on single-
screen theatres that if they wanted to exhibit the other film, JTHJ, at the time of Diwali. The
informant contended that since Ek Tha Tiger was a big ticket film, it was bound to be block
buster, and its exhibition was profitable for the single screen theatres; thus, a majority of the
single- screen theaters entered into the agreement for exhibition of both the films of the big name
and dominance of the opposite party. The grievance of the informant arose because the informant
feared that he would not get enough theaters for his own film Son of Sardar because of the
agreement of single- screen theaters with the opposite parties at the time of the release of Ek Tha
Tiger. The CCI noted that as per the information available in public domain, in Bollywood itself,

15
RamakantKini v. Dr. L.H. Hiranandani Hospital, Powai, Mumbai, MANU/CO/0081/2014:2014.
16
Ajay Devgn Films v. Yash Raj Films, MNAU/CO/009/2012:2012 Comp LR 1099 (CCI): [2012] 16 SCL 593
(CCI).
107 and 95 films were released in 2011 and 2012 (till now), respectively . Out of this, the
opposite party produced only two to four films each year. This cannot be said to amount to
dominance even in the Bollywood industry, leave aside film industry in India. The case was
closed under Section 26(2) of the Act.

Power Sector: In In Re, Maharastra State Power Generation Company Ltd.,17A number of
complaints were filed against Coal India Ltd.(CIL) for abuse of dominant position. CIL along
with its subsidiaries is clearly in a monopolistic position due to its statutory monopoly created
under law. Complaints alleged that fuel supply agreements (FSA‟s) entered into by CIL with
power- producing and other companies were one sided, without negotiations and were in favor of
it. In this case CCI analyzed the market structure and legal and regulatory framework regarding
the coal industry in India. The CCI noted that after the nationalization of coal mines in 1973, the
coal industry was reorganized into two major public sector companies, viz. CIL and National
Coal Development Corp.(NCDC), which have the main responsibility of supplying coal to all
end users. CIL has eight subsidiaries. It concluded that CIL and its subsidiary companies have
been vested with monopolistic power for production and distribution of coal in India. So coal
companies have acquired dominant position and have no competitive pressure or horizontal
challenge in the market. The same was held in Ashoka Smokeless 18 case too. Referring to
various factors mentioned in section 19(4), the CCI found that the argument of CIL not being
able to act independently regarding the supply and customers is misconceived. The CCI opined
that CIL through its subsidiaries operates independently of market forces and enjoys undisputed
dominance in the relevant market. This was reiterated in Madhya Pradesh Power Generating Co.
Ltd.19
Real- Estate Case: In Belaire Owners Association20, the CCI determined the relevant market in
the context of services of development or construction offered by the opposite party. While
delineating relevant product market for service of construction, the underlying assets were
analyzed from the point of view of the „residential‟ and „high-end. Residential property, different

17
In Re Maharashtra State Power Generation Company Ltd v. Mahananadi Coalfields Ltd. And Coal India Ltd .,
2013 Comp LR 910 (CCI) : MANU/CO/0068/2013.
18
Ashoka Smokeless Coal(P) Ltd. V. Union of India (2007) 2 SCC 640.
19
Madhya Pradesh Power Generating Company Ltd. And South Eastern Coalfields Ltd. & Coal India Ltd., 2014
Comp LR 68 (CCI): MANU.CO/0054/2014.
20
Belaire Owner’s Association v. DLF Ltd., Case no. 19 of 2010. Decided on 12 August 2011.
from the non residential, may be of many kinds, such as standalone houses, builder-floors,
apartments, row-houses, condominiums or studio apartments, etc. Despite some element of
consumer preferences, these categories are interchangeable or substitutable to some extent, with
reference to price range, geography, facilities and amenities. On the basis of these factors CCI
held that DLF is fully capable of operating independently of competitive forces in the residential
market and thus, the requirement of conditions laid down in explanation (a) (i) to section 4 is
satisfied. DLF has the ability to influence the market itself in its favor. An announcement was
made of several large projects by DLF Ltd. At one go can make its competitors react by holding
some of their own projects to avoid market saturation. Similarly, prospective consumers may
defer their demand in expectation of availability of projects to be offered by the market leader.
Thus, DLF would be able to influence both supply and demand of projects in the relevant
market. These possibilities indicate that DLF has a position of strength as envisaged in
explanation section 4 (a) (ii) of the Act.

Sports case: In Surinder Singh Barmi21 there was a issue regarding the abuse of position by the
BCCI, in the field cricket arose, wherein the informant, who claims to be a cricket fan, filed
information under section 19(1)(a) alleging irregularities in the grant of franchise rights for team
ownership, media rights for coverage of league and the award of sponsorship rights and other
local contracts related to the organization of the Indian Premier League (IPL). To delineate the
relevant market, the CCI looked at the characteristic features their relevance and substitutability
of cricket. The CCI observed that their most significant source of dominance of the BCCI is its
regulatory powers. Its monopoly in organization of cricket is axiomatic as it is the de facto
regulator of the game. The CCI assessed the dominance of the BCCI in the market for
organization of private professional leagues. BCCI‟s dominance also stems from its role as an
organizer of first class/international cricket events. Thus, owing to regulatory role, monopoly
status, control over infrastructure, control over players, ability to control entry of other
leagues(failure of ICL), the BCCI is concluded to be in a dominant position in the relevant
market for organizing private professional league cricket events in India.

21
Surinder Singh Barmi v. Board of Control of Cricket in India (BCCI), MANU/CO/0006/2013: [2013] 113 CL
A579 (CCI): 2013 Comp. LR 297 (CCI):[2013] 118 SC L226 (CCI).
SOLVING THE PROBLEM OF ABUSE BY CCI
To an enterprise who is held to be abusing its dominant position, the Commission can do several
things-

 Firstly, it can direct the undertaking or enterprise to discontinue or stop such actions that may
amount to abuse. (S.27(a)) of the Competition Act. For example the use of this power by the
CCI can be found in cases like In Re Shamsher Kataria and Atos in which the dominant
parties were ordered to end and discourage the enterprises form involving in activities which
had been found to be against section.4.
 Secondly to Impose penalties of up to 10% of the average of the turnover for the last three
preceding financial years. (S.27(b)) of the Competition Act.

There has been a lot of concern about the provision as it provides no calculation but just the
upper limit for the penalty, CCI is yet to formulate any guidelines on this issue. Presently the
CCI has overall discretion in calculation and assessment of penalties which needs to be imposed
upon such persons or undertaking who are parties to such kind of abuse. The COMPAT (The
Competition Appellate Tribunal) has put some prohibitions on the CCI in relation to awarding
penalties which are related to it. COMPAT in the one instance has also admonished CCI for its
action of awarding large penalty without explaining any reason for the same and recommended
that it needs to be calculated on the basis of the 'relevant turnover'. 22 So even in a case of where
the abuse is done against a multi-product company, the turnover used to calculate the penalty
against it would be the turnover from the kind of product or services which is in the contention,
and not the overall turnover.

However, this irregularity is very rampant in this condition, when we talk about of the
functioning of the CCI and the Appellate Authority, as for COMPAT has itself failed to adhere
its own precedent of 'relevant turnover' in M/s DLF Limited v Competition Commission of India
&Ors23. COMPAT did not restrain itself from assessing the penalty on the basis of DLF

22
M/s Excel Crop Care Limited v Competition Commission of India, Appeal 79 of 2012, ¶62.
23
M/s DLF Limited v Competition Commission of India &Ors, Appeal No. 20 of 2011, Appeal No. 22 of 2011,
Appeal No. 19 of 2012, Appeal No. 23 of 2011, Appeal No. 12 of 2012, Appeal No. 20 of 2012, Appeal No. 29 of
2013, Appeal No. 8 of 2013, Appeal No. 9 of 2013, Appeal No. 11 of 2013
Limited's turnover which arose from the residential segment, regardless of the relevant market in
the present case for 'high-end residential accommodation'. COMPAT with held the penalty which
the CCI collected on the basis of DLF's turnover pertaining to its entire business (i.e., the
development of residential, office and commercial properties).24

 Lastly, the Commission can pass any relevent order that it deems to cause the division of the
dominant enterprise such that does not abuse its dominant position. (S.28)25

CONCLUSION

The abuse of dominance is some way or the other is intruding with the competition in the
changing demands of market place. In easy and clear terms it refers to the behavior of the
undertaking which enjoys the dominant position, as per the Act. In actual sense dominant
position means the authority or position of strength and superiority which is enjoyed by an
undertaking enables it to perform independently of its competing forces which prevail in the
relevant market. Such an undertaking or enterprise will be in a stature to ignore the market forces
and unilaterally impose trading conditions, fix prices, etc. which is abusive and may result in the
preventing any kind of competition, or the elimination of effective competition.

Some of the various kinds of abuse are: price fixing, imposing discriminatory pricing, predatory
pricing, limiting supply of goods or services, denial of market access, etc Abuse of dominant
position is an important part of the constitution of modern competition authorities. For
developing country like India, competition authorities who are regulating through the
Competition Law rules, it is recommendable to deal with “abuse of dominance” on a priority
basis. This question is very relevant in case of India as the Competition Commission of India has
not yet started enforceable action yet on such a issue. Abuse of Dominant position cases should
be taken up by authorities only if it has strong enforcement in. anti competitive agreement and
mergers. The new kind of competition issues faced by the authorities which invariably are faced
by developing countries where infrastructure development is a ultimate priority. Abuse of

24
Cyril Shroff & Nisha Oberoi, India: Abuse of Dominance, Global Competition Review. Available at
http://globalcompetitionreview.com/reviews/69/sections/235/chapters/2749/india-abuse-dominance/ (last visited on
18/11/2015).
25
http Abuse of Dominant Position in Indian Competition Law: A Brief Guide, The Centre for Internet and Society
(2017), http://cis-india.org/a2k/blogs/abuse-of-dominant-position-in-indian-competition-law-a-brief-guide (last
visited Feb 15, 2017).
dominance remains a main thrust area in view as there is a close link between essential facilities
and infrastructure facilities. Infrastructure facilities tend to qualify as very essential facilities for
the application of competition Law in view of the lumpy investment involved and the long
gestation lag in creating infrastructure. Besides, Dominance is to be determined by the
Commission based on a number of factors which are either structural or behavioral in nature. The
Act provides an exclusive list of abuses. It also takes cognizance of abuse by a “group “having
dominant position in the relevant market. However, the relevant provision in the India law is
distinct from the concept of “collective dominance “in EU law. The Indian law provides for
effective and enforceable remedies against use of “abuse of dominant position” .
BIBLIOGRAPHY

Books:
1. D. P. MITTAL, COMPETITION LAW & PRACTICE (3rd ed.).
2. T. RAMAPPA, COMPETITION LAW IN INDIA: POLICY, ISSUES, AND

DEVELOPMENTS (2nd ed. 2009).

3. ABIR ROY & JAYANT KUMAR, (2008).
4. AVTAR SINGH & HARPREET KAUR, COMPETITION LAW (1st ed. 2012).
5. VERSHA VAHINI, INDIAN COMPETITION LAW (2016).

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dominant-position-in-indian-competition-law-a-brief-guide (last visited Feb 15,
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