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50. Section 3(1) of the Act is a general prohibition on any agreement in respect of production, supply, distribution, storage, acquisition or control of goods, provision of services, which causes or is likely to cause an 'appreciable adverse effect on competition' (AAEC) within India. Such agreements are rendered void under Section 3(2) of the Act. Section 3(3) and 3(4) of the Act provide guidelines regarding burden of proof in certain kinds of anti- competitive agreements. Section 3(3) deals with horizontal agreements i.e. decisions including cartels, made by a group of persons or associations, operating at the same level of production, supply or distribution etc. Section 3(4) relates to vertical agreements that may affect competition in the Indian markets. Agreements falling under Section 3(3) of the Act are presumed to have an AAEC on competition, whereas agreements set out under Section 3(4) require proof of AAEC in India, so as to be in contravention of Section 3(1) and hence, void under Section 3(2) of the Act. Depending upon the kind of agreement, i.e. whether it is in the nature of a horizontal arrangement or a vertical one, the burden of proof tilts.

51. Considering the pernicious nature of the collusive agreements specifically listed under Section 3(3) of the Act, the scheme of the Act allows for a presumption to arise, regarding the existence or likelihood of AAEC once the agreement is established. Generally in cases concerning horizontal arrangement/collusive conduct falling under Section 3(3) of the Act, the most difficult or herculean task before the Commission is to prove the existence of the agreement/arrangement/understanding amongst the parties because such agreements are often perpetrated in secrecy. The present case before us is peculiar, in the sense that the existence of the agreement i.e. the Turn System or the fixation of price, vide a rate list, is not challenged by any of the OPs. Rather they have admitted the existence of the Turn System and have sought to justify it by citing the prevailing circumstances at the time when such Turn System came into existence and also by citing various reasons why the adoption or implementation of such system should not be considered as an anti-competitive arrangement under the Act. Thus, what is relevant in the present case is to see whether the burden of proof, which has now shifted on the OPs, to prove that their arrangement/agreement had no AAEC on the markets in India, has been successfully discharged or not.

52. Firstly, the OPs have submitted that the Turn System was a voluntary arrangement whereby the trailer owners as well as the users of the trailer transportation services were free to choose whether they wish to book a trailer through the Turn System or otherwise. There was no compulsion on the members/non-members to join the Turn System. The Commission finds this argument without any merit. Section 3(1) or 3(3) of the Act does not require the agreement/understanding to be coercive in nature to qualify for a contravention. A mutually agreed upon collusive arrangement is as much a contravention, if not more, as a coercive diktat imposed by a trade association. Rather, collusive arrangement/agreement/understanding is an even bigger sin for the competitive markets. To rebut the presumption which has arisen against them regarding the AAEC caused by their arrangement the OPs were obligated to produce arguments/justifications. The present argument, that the Turn System was not coercive or mandatory in nature, is insufficient to rebut the presumption of AAEC that has arisen in this case.

57. For the reasons recorded herein above, the Commission is of the view that OP-1, along with the participating associations (OP-13 to OP-16), has resorted to price fixing under the garb of the Turn System. In terms of Section 3(3)(a) read with Section 3(1) of the Act, the presumption arose against the said arrangement leading to AAEC, which is not satisfactorily rebutted by the OPs, despite being given ample opportunity. Thus, the Commission holds OP-1, OP-13, OP-14, OP-15 and OP-16 to be in contravention of the provisions of Section 3(3)(a) read with Section 3(1) of the Act.