TaxTMI 
TaxTMI 
2002 (12) TMI 603
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....he other. The parties had also relied upon the opinion of experts on technical matters. The learned counsels have also referred to a large number of authorities. If we were to determine the questions raised before us ourselves, we would have noted the submissions of the learned counsels in great details but having regard to the order proposed to be passed, we do not intend to do so, as the submissions would be raised before the learned TDSAT again and it would be taken through the documents to which our attention has been drawn by the learned counsel. Suffice it to point out that before the learned TDSAT admittedly the matter was heard for 26 days. In this Court also the matter was heard for four days. It arrived at certain findings without application of its mind on various vital issues including the issue of its jurisdiction. Its findings inter alia are: - (i) That WLL with limited mobility offers benefits to consumers in rural and urban area. (ii) WLL with limited mobility would provide uninterrupted trouble free service because the subscriber does not have to wait endlessly for a mechanic to come and rectify the fault in the wire line. (ii....
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....he CMSPs and FSPs have been treated equally and no special favour was shown to the FSPs in this regard. (xxii) It has been argued by Mr. Vaidyanathan that this is inbuilt in the fee that they have to pay. But there is no evidence for this. (xxiii) There cannot be any legitimate expectationthat will be an illegitimate expectation. Each one of the aforementioned findings have been assailed as perverse. We, however, need not go into the aforementioned question in view of the order proposed to be passed by us in our opinion the learned Tribunal failed to assign sufficient or cogent reasons in support of its findings. In relation to some issues, no reason has been assigned. Some issues although noticed have not been adverted to. Some issues have even not been noticed. The impugned order of the TDSAT, therefore, does not fulfil the criteria of a judgment. A judgment of a court or a Tribunal should contain concise statement of case, points of decisions, the reasons for such decisions and decisions thereupon. In Balraj Taneja and Anr. v. Sunil Madan and Anr. [(1999) 8 SCC 396] it has been held : "Judgment" as defined in Section 2(9) of the Code of Civil Proced....
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....de in an application under sub-section (1) thereof. The approach of the learned TDSAT, being on the premise that its jurisdiction is limited or akin to the power of judicial review is, therefore, wholly unsustainable. The extent of jurisdiction of a court or a Tribunal depends upon the relevant statute. TDSAT is a creature of a statute. Its jurisdiction is also conferred by a statute. The purpose of creation of TDSAT has expressly been stated by the Parliament in the Amending Act of 2000. TDSAT, thus, failed to take into consideration the amplitude of its jurisdiction and thus misdirected itself in law. The learned Attorney General has relied upon a decision of this Court in Union of India v. Parma Nanda [(1989) 2 SCC 177], but the said decision has no application at all to the fact of the matter. If a jurisdictional question or the extent thereof is disputed before a tribunal, the tribunal must necessarily decide it unless the statute provides otherwise. (See Judicial review of Administrative Law by H.W.R. Wade & C.F. Forsyth, page No. 260). Only when question of law or mixed question of fact and law are decided by a tribunal, the High Court or the Supreme Court can exerc....
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....ich, therefore, is subject to an objectively correct solution. But that, as will be seen, does not mean that the repository of such a power is under an enforceable duty to arrive at that solution. The legal rules applied are capable of various interpretations and the repository of power, using his own reasoning faculties, may deviate from that solution which the law regards as the objectively correct one." The regulatory bodies exercise wide jurisdiction. They lay down the law. They may prosecute. They may punish. Intrinsically, they act like an internal audit. They may fix the price, they may fix the area of operation and so on and so forth. While doing so, they may, as in the present case, interfere with the existing rights of the licensees. Statutory recommendations made by it are normally accepted by the Central Government, as a result of which the rights and obligations of the parties may seriously be affected. It was in the aforementioned premise the Parliament thought of creating an independent expert tribunal which, if an occasion arises therefor, may interfere with the finding of fact, finding of law or a mixed question of law and fact of the Authority. Succinctly st....
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....fferent. Its approach as an appellate authority or a revisional authority even if arising out the same order would be different. Even in West Bengal Electricity Regulatory Commission v. C.E.S.C. Ltd. [2002 (7) SCALE 217] whereupon the learned Attorney General has placed reliance, this Court specifically stated : "We notice that the Commission constituted under s.17 of the 1998 Act is an expert body and the determination of tariff which has to be made by the Commission involves a very highly technical procedure, requiring working knowledge of law, engineering, finance, commerce, economics and management. A perusal of the report of the ASCI as well as that of the Commission abundantly proves this fact. Therefore, we think it would be more appropriate and effective if a statutory appeal is provided to a similar expert body, so that the various questions which are factual and technical that arise in such an appeal, get appropriate consideration in the first stage also. From s.4 of the 1998 Act, we notice that the Central Electricity Regulatory Commission which has a judicial member as also a number of other members having varied qualifications, is better equipped to appreci....
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.... has before it representative evidence, ample in quantity to measure with appropriate precision the financial and other requirements of the pertinent parties. It was held : "It follows that the responsibilities of a reviewing court are essentially three. First, it must determine whether the Commission's order, viewed in light of the relevant facts and of the Commission's broad regulatory duties, abused or exceeded its authority. Second, the court must examine manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order's essential elements is supported by substantial evidence. Third, the court must determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The court's responsibility is not to supplant the Commission's balance of these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consid....
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....It was observed: "Our power to review the correctness of application of the present standard ought seldom to be called into action. Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied." Furthermore, the power of this Court under Section 18 of the Act cannot be equated with the power of judicial review. As this Court will be concerned with a substantial question of law arising in the case, its jurisdiction would not be restricted to illegality, irrationality or procedural impropriety in the decision making process. The learned TDSAT, therefore, has posed absolutely a wrong question and thus its impugned decision suffers from a misdirection in law. In Union of India v. Tarachand Gupta and Bros. [(1971) 1 SCC 486], the law is stated as under : "The words "a decision or order passed by an Officer of Customs under this Act" used in Section 188 of the Sea Customs Act must mean a real and not a purporte....
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....l Courts is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. The word "jurisdiction" has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and, therefore, in excess of its jurisdiction." In Union of India and Anr. v. Paras Laminates (P) Ltd. [(1990) 4 SCC 453], this Court held as follows : "There is no doubt that ....
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....utside the policy amounting to a change in the policy; 3) Whether the conditions attached by the authority and its recommendations dated 8th January, 2001 have been satisfied. The Tribunal has opined that the technology may or may not be known as early as in 1994-95 but it proceeded to decide the issues only from the angle of consumers' interest. Consumers' interest is only one of the relevant factors. It by itself cannot be decisive. Consumers' interest is required to be taken into consideration only when it is found that the actions of the Central Government as also the recommendation of Authority were within their respective jurisdiction. TDSAT proceeded on the basis that the Central Government is entitled to change its own policy decision without taking into consideration the fact that according to the Central Government itself it was merely a 'fine tuning of the policy' and not a change of policy. The jurisdiction of the Central Government to effect change in the policy decisions was also in question. If a National policy had been adopted by the Cabinet, having regard to the provisions contained in Section 14 of the General Clauses Act, although....
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.... but the contents of the chart had not been disclosed. In any event, the materials on the basis whereof the chart was prepared had not been disclosed at all. It failed to notice that the requirement of increasing tele-density in rural areas was not in question. What was questioned was that encroachment by the FSPs in the area which is said to be within the exclusive privilege of the cellular operators having regard to the provision of the NTP-99 and the terms and conditions of the licences issued to them. It also failed to arrive at any finding as to whether the concessions given to the appellants by the Central Government were asked for by them or not and/or whether only because they received such concessions, they were estopped or precluded from raising the issues. The learned TDSAT further failed to take into consideration the question as to whether the terms of offer made to the appellants as regards for providing fixed service were similar to those offered to the fixed service providers or not. It merely held that the appellants can use latest technology including WLL with limited mobility as also the respondents without taking into consideration the materials to the eff....