The Competition Commission of India has held that elements of anti-competitive agreement and abuse of dominant position stand on a higher platform than deficiency in services, thus such inefficiency in services will not form a competition issue.
The observation was made by the Commission on a complaint by the National Consumers Co-operative Federation of India Limited (Informant) under Section 19(1)(a) of the Competition Act, 2002 ("Act") against New Town Electric Supply Company Limited (NTESCL) and West Bengal State Electricity Distribution Company Limited (WBSEDCL), the 'Discoms', alleging contravention of the provisions of Section 4 (pertaining to abuse of dominant position by an enterprise) of the Act.
The Co-operative Federation said that it had made several representations before the Discoms for supply of electricity for a residential housing project in Rajarhat, Kolkata. It was submitted that on account of the wavering approach of the Discoms, the Project got delayed and could not be completed for want of adequate power supply.
The Federation had the grievance that criminal complaints had also been lodged by the flat owners of the Project against it in New Town Police Station, due to the alleged delay on the part of Discoms to supply electricity.
It was prayed by the Co-operative Federation that the Commission should direct the Discoms to discontinue such practices of abuse of dominant position and pass an award directing them to pay compensation for the loss suffered by the Co-operative Federation for such arbitrary conduct.
While dealing with the allegation of abuse of dominant position, the Commission held that WBSEDCL (NTESCL having been amalgamated with WBSEDCL vide Ministry of Corporate Affairs' memo dated 29th November, 2018) being the sole distribution licensee of electricity in the area where the Project was located, was in a dominant position in the relevant market.
With regard to the alleged abuse of dominance by WBSEDCL, the Commission while relying on a previous decided case [Mr. Hitesh Bhatt vs. Vadodara Municipal Corporation and Gujarat Electricity Board] observed that delay or insufficiency of services on behalf of Discoms in the case could not be considered a competition issue.
The commission reiterating its previously held view that elements of anti-competitive agreement and abuse of dominant position definitely stand on a higher platform than deficiency in services, held in this case that no case of abuse of dominant position is made out and accordingly dismissed the complaint.