AI Drafter 
TaxTMI 
TaxTMI 
2013 (12) TMI 1637
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....matters, a two Judge Bench made a reference to the larger Bench for determination of the following substantial questions of law of public importance: 1. Whether in the event of any inconsistency between the terms and conditions of the licenses issued under Section 4 of the Indian Telegraph Act, 1885 and the provisions of the Telecom Regulatory Authority of India Act, 1997 (for short, 'the Act'), the provisions of the Act would prevail in view of the purpose and object for which the Act has been passed, i.e., for ensuring rapid development of telecommunications in the country incorporating the most modern technology and, at the same time, protecting the interests of the consumers and the service providers? 2. Whether Authority has powers to fix the terms and conditions of inter connectivity between service providers, in respect of all the licenses, irrespective of the fact whether licenses issued before or after 24.1.2000 - especially in view of the non-obstante clause in sub-section (1) of Section 11 and sub-clause (ii) of Clause (b) of sub-section (l) of Section 11 of the TRAI (Amendment) Act of 2000? 3. Whether Authority has no power to fix terms and co....
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.... counsel for the parties, we may notice the facts borne out from the records of different appeals. Civil Appeal Nos. 5253, 5184, 5873, 6068, 6255 of 2010 and Civil Appeal No. D28298 of 2010 5.1 The delay in filing and re-filing C.A. No. D28298 of 2010 is condoned. 5.2 These appeals have been filed by Bharat Sanchar Nigam Limited (BSNL), Cellular Operators Association of India (COAI), Association of Unified Telecom Service Providers of India (AUSPI), the Authority, M/s. Sistema Shyam TeleServices Limited and Mahanagar Telephone Nigam Limited (MTNL), respectively, against order dated 28.5.2010 passed by TDSAT whereby the appeal preferred by BSNL against the Telecommunication Interconnection (Port Charges) Amendment Regulation (1 of 2007) was allowed and the Authority was directed to give fresh look at the regulations and BSNL was directed not to claim any amount from any operator during the interregnum, i.e., from the date of coming into force of the regulations and the date of the order. 5.3 A perusal of the record shows that port charges came to be prescribed in Schedule 3 of the Telecommunication Interconnection (Charges and Revenue Sharing) Regulations, 1999, which ca....
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....all disputes should be resolved through mutual negotiations. It was also provided that if the dispute could not be resolved, then 10 days' notice of disconnection should be given to the erring party with a copy to the Authority. In the event of non-intervention by the Authority, the aggrieved party could disconnect the PoI or approach the Authority for determination of the matter. 6.3 BSNL filed Appeal No.2/2004 for striking down the aforesaid direction on the ground that only TDSAT was vested with the jurisdiction to decide the disputes and the Authority had no jurisdiction in the matter. TDSAT allowed the appeal and held that the Authority did not have the jurisdiction to entertain dispute between the service providers. TDSAT noted that the words "dispute" and "determination" have been used in the direction issued by the Authority, referred to the judgment of this Court in Cellular Operators Association of India v. Union of India (2003) 3 SCC 186 and held that the jurisdiction of TDSAT is quite wide and is circumscribed only by the three instances, i.e., disputes before the MRTP Commission, Consumer Forums and those under Section 7B of the Telegraph Act. 6.4 The Authority f....
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....ued by the Authority. It was contended inter alia that the Authority did not have the power to frame such a regulation. They argued that the changes suggested in the RIO were non transparent and under the garb of the regulations, the Authority cannot be conferred power to fix the terms and conditions of interconnectivity which BSNL and MTNL can offer to other service providers. Clause 3.1 was challenged insofar as it had been interpreted to take away the statutory right to appeal as granted under the Act. 7.6 TDSAT disposed of both the appeals vide order dated 27.4.2005. TDSAT extensively referred to the orders passed in Review Petition No.2/2004 in Appeal No.2/2004 (BSNL v. TRAI) and Appeal No.3/2005 as also the order passed by the Delhi High Court wherein it was held that TDSAT is empowered to hear appeals involving challenge to the validity of the regulations framed under Section 36. TDSAT then held that even after amendment of the Act, the Authority does not have the power to amend or override the terms and conditions of the interconnect agreements executed by the service providers. Civil Appeal Nos. 3299, 6049 of 2005 and 802 of 2006 8.1 These appeals have been filed ....
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....ed Rs. 0.30 towards call termination and Rs. 0.19 towards transit. 8.7 The Authority released Consultation Paper on Interconnect Exchange cum Inter-Carrier Billing Clearance House for Multi- Operator Multi-Service Scenario on 13.4.2004 mooting Interconnect Exchange as an alternative to direct connectivity. 8.8 COAI filed Petition No. 20/2004 seeking a direction against BSNL CellOne to directly connect to the Cellular Service Providers and to strike down the BSNL Circular requiring payment of Rs. 0.19 transit charges which BSNL Basic Services Division was demanding and collecting. 8.9 TDSAT allowed Appeal No.31/2003 and partly allowed petition No.20/2004 and quashed direction dated 22.7.2003 on the ground that the Authority cannot issue direction resulting in modification of the licence issued after 2000 amendment. TDSAT held that fixation of the terms and conditions of interconnectivity and ensuring effective interconnectivity is part of the legislative mandate of the Authority under Section 11(1)(b)(ii) and (iii). TDSAT referred to its earlier order dated 27.4.2005 passed in Appeal Nos. 11 and 12/2002 and held that the amendment of the Act does not override the law laid d....
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....s signed with private BSOs to CMSPs. 9.4 The Authority issued Telecommunication Interconnection (Charges and Revenue Sharing) Regulation, 1999 (hereinafter 'Interconnection Regulations 1999') vide notification dated 28.5.1999 by which the port charges as also the access charges were reduced. Clause 8 of the Regulations provided that the Regulations would have an over-riding effect on the interconnect agreements entered into between the operators and DoT/BSNL. Consequent to the issuing of Interconnect Regulations 1999, DoT issued circulars dated 1.10.1999, 12.10.1999 and 25.10.1999 altering the post charges and access charges. That clause was struck down by Delhi High Court in MTNL v. TRAI (supra). 9.5 After its creation on 1.10.2000, BSNL issued communications dated 28.4.2001 and 31.5.2001 requesting an increase in the access charges, making the regime of payment dependent on actual work done by the concerned operator. The BSOs made a representation to the Authority objecting to this increase. 9.6 AUSPI filed Petition No. 9/2001 before TDSAT challenging communications dated 28.4.2001 and 31.5.2001. Vide interim order dated 10.7.2001, AUSPI was directed to continue paying t....
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....and not later than three months from the issue of the direction so as to promote network efficiency and consumer interest. 10.2 BSNL filed Appeal No. 31/2003 challenging direction dated 22.7.2003 on the ground that the same was contrary to the terms and conditions of the license agreements of basic and cellular operators. 10.3 In October 2003, the Authority issued Telecom Interconnection Usages Charges Regulations (IUC Regulations) mandating direct connectivity between service providers. As per clause (b) of Schedule II, charges could be levied through mutual negotiations subject to the condition that they shall not exceed Rs. 0.20 per minute. BSNL issued Circular dated 28.1.2004 levying charge of Rs. 0.4 per minute for a call from cellular mobile network to another cellular network transited by BSNL. This charge includes Rs. 0.30 towards call termination and Rs. 0.19 towards transit. 10.4 BSNL issued Circular dated 2.7.2004 to its telecom circles informing them of its decision to permit direct connectivity with the BSNL Cellular Network. Reliance Infocom was one of the UASL operators who had sought such connectivity. NLD and ILD operators were permitted to establish direc....
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....ent as it was a UAS licensee and not a CMSP. 10.10 BSNL forwarded a draft Addenda to the Interconnect Agreement to Reliance Infocom Limited on 14.3.2005. The same was signed by the parties on 17.11.2005 for NLD services and on 6.1.2006 as UASL operator. Reliance filed representation before the Authority dated 30.8.2005 to extend regulation date 8.6.2005 to UAS licensees also. This request was declined by the Authority on 6.9.2005. In light of decision dated 11.11.2005 passed by TDSAT mandating level playing filed and reciprocity between service providers and the subsequent the Authority directive dated 16.11.2005 applying this judgment to all service providers although the petitioners had been only cellular operators, Reliance filed another representation dated 12.12.2005 but did not get any response from the Authority. 10.11 Bharti Televentures Limited filed Appeal No. 8/2005 seeking extension of the benefit of order dated 3.5.2005 and also for modification of the regulations and for extension of the benefit to similarly situated UAS Licensees. 10.12 By an order dated 10.2.2006, TDSAT dismissed the appeal and held that the transit charges would be determined by the interc....
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.....4.2005 making ADC applicable to national calls at Rs. 0.30 per minute and international roaming calls at Rs. 3.25 per minute. The amendment was implemented by BSNL vide Circular dated 9.5.2005. The amendment as it related to application of ADC was challenged by COAI in Appeal No. 7/2005 which was allowed vide order dated 21.9.2005. Thereafter, BSNL withdrew circular dated 9.5.2005 vide circular dated 13.10.2005. 11.3 On 23.6.2006, the Authority issued 6th amendment to IUC Regulations. BSNL issued Circular dated 28.2.2006 for implementation of the 6th amendment and provided for higher termination charges for roaming calls. Thereupon, COAI filed complaints before BSNL and also before the Authority regarding higher termination charges for roaming calls. The Authority issued letter dated 20.4.2006 to BSNL along with complaints filed by COAI and M/s BPL. Complaint of Bharti was also forwarded vide letter dated 24.4.2006. Despite agreeing to discuss the matter with the private operators, BSNL started raising bills as per the circular. COAI and others made representations dated 24.5.2006 and 12.6.2006 against thee demands. BSNL replied to the Authority's letter vide letter dated 28.4.....
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....6; 5/2007; 5/2008; 2-8/2009 and remanded the matter to the Authority with a direction to consider the matter relating to IUC Regulations afresh. 12.2 The Authority issued Telecommunication Interconnection (Charges and Revenue Sharing) Regulation (No. 5 of 2001) - basic framework for regulating access charges on 14.12.2001. Separate Regulation for regulating port charges was issued by the Authority in Dec 2001. On 24.1.2003, the Authority issued Telecom Interconnection Usage Charges Regulation, 2003 according to which termination charges were fixed at Rs. 0.30 per minute (metro) and Rs. 0.40 (circle). The concept of Access Deficit Charge (ADC) was also introduced at 30% of the total sectoral revenue - fee paid by private operators to cross subsidise BSNL for deploying its fixed network in non-lucrative areas. 12.3 On receipt of representation dated 4.2.2003 by COAI about the anomalies in the 2003 IUC Regulations, the Authority undertook a review on 29.10.2003 and reduced the termination charges to a uniform rate, i.e., Rs. 0.30 per minute for all types of calls and the ADC was made 10%. The representation made by COAI for further reduction in the amount of termination charges ....
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....arge from level II TAX to SDCC and Intra SDCA and TAX transit charge on basis of cost principles. Appeal No. 6/2009 M/s Idea Cellular Ltd. & Ors. Similar to M/s Bharati Airtel Appeal No. 7/2009 M/s Aircel Ltd. & Ors. Similar to Vodafone. Appeal No. 8/2009 Etisalat D.B. Telecom (P) Ltd. Seeking setting aside of Regulation dt. 9.3.2009. Direction to TRAI to: re-introduce termination charges based on whether operator is a new entrant and had fulfilled roll out obligation; determine MTC at not more then 09 paise per minute and FTC at not more than 10 paise per minute; fix TAX transit charge at not more than 02 paise; reduce long distance carriage charge to not more than 11 paise per minute; fix 'nil' charge for receipt of interconnect SMS traffic on the receiving telecom network. 12.5 By an order dated 12.5.2009, TDSAT dismissed Appeal Nos. 6/2006, 5/2007 and 5/2008. However, by the impugned order some of the appeals were disposed of and the matter was remanded to the Authority with a direction to consider the matter afresh and complete the consultation process in a time bound manner so that the new IUC charges could be made effective/implemented....
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....vices in the country was the establishment of a modern telecommunication manufacturing facility at Bangalore under the public sector, in the name of "Indian Telephone Industries Ltd". 1984 represents an important milestone in the development of telecommunication sector. In that year, the Centre for Development of Telematics ("C-DoT") was set up for developing indigenous technologies and licences were given to the private sector to manufacture subscriber-equipment. In 1986, Mahanagar Telephone Nigam Ltd. and Videsh Sanchar Nigam Ltd. ("VSNL") were set up. In July 1992 a decision was taken to allow private investment for the services like electronic mail, voicemail, data services, audio text services, video text services, video conferencing, radio paging and cellular mobile telephone. 16. In February 1993, the Finance Minister in his Budget speech announced Government's intention to encourage private sector involvement and participation in Telecom to supplement efforts of Department of Telecommunications especially in creation of internationally competitive industry. On 13.5.1994, National Telecom policy was announced which was placed in Parliament saying that the aim of the polic....
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....vernment and the Telecom Regulatory Authority have not to behave like sleeping trustees, but have to function as active trustees for the public good." (emphasis supplied) 18. The 1996 Ordinance was replaced by the Act. The main purpose of establishing the Authority as a statutory body was to ensure that the interest of consumers are protected and, at the same time, to create a climate for growth of telecommunications, broadcasting and cable services in such a manner which could enable India to play leading role in the emerging global information society. The goals and objectives of the Authority are as follows: i. Increasing tele-density and access to telecommunication services in the country at affordable prices. ii. Making available telecommunication services which in terms of range, price and quality are comparable to the best in the world. iii. Providing a fair and transparent policy environment which promotes a level playing field and facilitates fair competition. iv. Establishing an interconnection regime that allows fair, transparent, prompt and equitable interconnection. v. Re-balancing tariffs so that the objectives of affordability and operator viabil....
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....ice providers; d. regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services; ensure compliance of terms and conditions of licence; f. recommend revocation of licence for non-compliance of terms and conditions of licence; g. laydown and ensure the time period for providing local and long distance circuits of telecommunication between different service providers; h. facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services; i. protect the interest of the consumers of telecommunication service; j. monitor the quality of service and conduct the periodical survey of such provided by the service providers; k. inspect the equipment used in the network and recommend the type of equipment to be used by the service providers; l. maintain register of interconnect agreements and of all such other matters as may be provided in the regulations; m. keep register maintained under clause (I) open for inspection to any member of public on payment of such fee and complian....
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....nder sub-section (1),- (a) every officer of the Government Department, if such service provider is a department of the Government; (b) every director, manager, secretary or other officer, if such service provider is a company; or (c) every partner, manager, secretary or other officer, if such service provider is a firm; or (d) every other person or body of persons who has had dealings in the course of business with any of the persons mentioned in clauses (b) and (c), shall be bound to produce before the Authority making the inquiry, all such books of account or other documents in his custody or power relating to, or having a bearing on the subject-matter of such inquiry and also to furnish to the Authority with any such statement or information relating thereto, as the case may be, required of him, within such time as may be specified. (3) Every service provider shall maintain such books of account or other documents as may be prescribed. (4) The Authority shall have the power to issue such directions to service providers as it may consider necessary for proper functioning by service providers. 13. Powers of Authority t....
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.... may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. 33. Delegation. - The Authority may, by general or special order in writing, delegate to any member, officer of the Authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to settle dispute under Chapter IV and to make regulation under section 36) as it may deem necessary. 35.Power to make rules.- (1) The Central government may, by notification, make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely;- (a) the salary and allowances payable to and the other conditions of service of the Chairperson and members under sub-section (5) of section 5; (b) the powers and functions of the Chairperson under subsection (1) of section 6; (c) the procedure for conducting an inquiry made under s....
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....s agree in making any modification in the rule or regulations or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation." 20. With a view to overcome the difficulties experienced in the implementation of the Act, the Central Government constituted a Group on Telecom and IT Convergence under the Chairmanship of the Finance Minister. The recommendations made by the Group led to the issuance of the Telecom Regulatory Authority of India (Amendment) Ordinance, 2000, which was replaced by the Telecom Regulatory Authority of India (Amendment) Act, 2000. One of the important features of the Amendment Act was the establishment of a Tribunal known as the Telecom Disputes Settlement and Appellate Tribunal for adjudicating disputes between a licensor and a licencee, between two or more service providers, between a service provider and a group of consumers, and also to hear and dispose of any appeals from the dir....
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....s; (vi) type of equipment to be used by the service providers after inspection of equipment used in the network; (vii) measures for the development of telecommunication technology and any other matter relatable to telecommunication industry in general; (viii) efficient management of available spectrum; (b) discharge the following functions, namely- (i) ensure compliance of terms and conditions of licence; (ii) notwithstanding anything contained in the terms and conditions of the licence granted before the commencement of the Telecom Regulatory Authority of India (Amendment) Act, 2000, fix the terms and conditions of interconnectivity between the service providers; (iii) ensure technical compatibility and effective interconnection between different service providers; (iv) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services; (v) lay down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of such service provided by the service providers so as t....
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....mmendation back to the Authority for its reconsideration, and the Authority may, within fifteen days from the date of receipt of such reference, forward to the Central Government its recommendation after considering the reference made by that Government. After receipt of further recommendation if any, the Central Government shall take a final decision. (2) Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the Authority may, from time to time, by order, notify in the Official Gazette the rates at which the telecommunication services within India and outside India shall be provided under this Act including the rates at which messages shall be transmitted to any country outside India: Provided that the Authority may notify different rates for different persons or class of persons for similar telecommunication services and where different rates are fixed as aforesaid the Authority shall record the reasons therefor. (3) While discharging its functions under sub-section (1), or sub-section (2) the Authority shall not act against the interest of the sovereignty and integrity of India, the security of the State, friendly relations....
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....fied in clause (b) of sub-section (1) of Section 11." 14. Establishment of Appellate Tribunal.-The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to- (a) adjudicate any dispute- (i) between a licensor and a licensee; (ii) between two or more service providers; (iii) between a service provider and a group of consumers; Provided that nothing in this clause shall apply in respect of matters relating to- (A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969); (B) the complaint of an individual consumer maintainable before a consumer Disputes Redressal forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986); (C) dispute between telegraph authorit....
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.... (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in any other law, an appeal shall lie against any order, not being an interlocutory order, of the Appellate Tribunal to the Supreme Court on one or more of the grounds specified in section 100 of that Code. (2) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties. (3) Every appeal under this section shall be preferred within a period of ninety days from the date of the decision or order appealed against: Provided that the Supreme Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. 33. Delegation. - The Authority may, by general or special order in writing, delegate to any member, officer of the Authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to settle dispute under Chapter IV and to make regulation under section 36) as it may deem necessary. ....
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....g power, such regulations may provide for all or any of the following matters, namely:- (a) the times and places of meetings of the Authority and the procedure to be followed at such meetings under sub-section (1) of section 8, including quorum necessary for the transaction of business; (b) the transaction of business at the meetings of the Authority under sub-section (4) of section 8; (c) omitted by Act 2 of 2000 (d) matters in respect of which register is to be maintained by the Authority under clause (l) of sub-section (1) of section 11; (e) levy of fee and lay down such other requirements on fulfilment of which a copy of register may be obtained under sub clause (b) of sub- section (1) of section 11; (f) levy of fees and other charges under clause (c) of subsection (1) of section 11. 37. Rules and regulations to laid before Parliament. - Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, befo....
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..... (2) The Authority shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued. (3) The Authority shall consist of a Chairperson, and not less than two, but not exceeding six members, to be appointed by the Central Government. (4) The head office of the Authority shall be at New Delhi. Section 11. Functions of Authority.- (1) Notwithstanding anything contained in the Indian Telegraph Act, 1885 the functions of the Authority shall be to- (a) recommend the need and timing for introduction of new service provider; (b) recommend the terms and conditions of licence to a service provider; (c) ensure technical compatibility and effective inter-connection between different service providers; (d) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services; (e) ensure compliance of terms and conditions of licence; (f) recommend revocation of lic....
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....he sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality. (4) The Authority shall ensure transparency while exercising its powers and discharging its functions. Section 11. Functions of Authority.- (1) Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the functions of the Authority shall be to- (a) make recommendations, either suo motu or on a request from the licensor, on the following matters, namely:- (i) need and timing for introduction of new service provider; (ii) terms and conditions of licence to a service provider; (iii) revocation of licence for noncompliance of terms and conditions of licence; (iv) measures to facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services; (v) technological improvements in the services provided by the service providers; (vi) type of equipment to be used by the service providers after inspection of equipment used in the network; (vii) measures for the development of telecommunic....
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....dations within a period of sixty days from the date on which that Government sought the recommendations: Provided also that the Authority may request the Central Government to furnish such information or documents as may be necessary for the purpose of making recommendations under sub-clauses (i) and (ii) of clause (a) of this sub-section and that Government shall supply such information within a period of seven days from receipt of such request: Provided also that the Central Government may issue a licence to a service provider if no recommendations are received from the Authority within the period specified in the second proviso or within such period as may be mutually agreed upon between the Central Government and the Authority: Provided also that if the Central Government having considered that recommendation of the Authority, comes to a prima facie conclusion that such recommendation cannot be accepted or needs modifications, it shall, refer the recommendation back to the Authority for its reconsideration, and the Authority may within fifteen days from the date of receipt of such reference, forward to the Central Government its recommendation after considering the refere....
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....nts shall be decided according to the opinion of that member. (2) The bench constituted under sub-section (1) shall exercise, on and from the appointed day all such jurisdiction , powers and authority as were exercisable immediately before that date by any civil court on any matter relating to- (i) technical compatibility and interconnections between service providers; (ii) revenue sharing arrangements between different service providers; (iii) quality of telecommunication services and interest of consumers: Provided that nothing in this subsection shall apply in respect of matters relating to- (a) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under subsection (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969); (b) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Disputes? Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986); (c) disput....
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....companied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period. (4) On receipt of an application under sub-section (1) or an appeal under sub-section (2), the Appellate Tribunal may, after giving the parties to the dispute or the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the dispute or the appeal and to the Authority, as the case may be. (6) The application made under subsection (1) or the appeal preferred under sub-section (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application or appeal finally within ninety days from the date of receipt of application or appeal, as the case may be: Provided that where any such application or appeal could not be disposed of within the said period of ninety days, the Appellate Tribunal shall record its reasons in writing for not disposing of the application or ap....
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....wing matters, namely (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte; (g) setting aside any order of dismissal of any application for default or any order passed by it ex parte; (h) any other matter which may be prescribed. (3) Every proceeding before the Authority shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196 of the Indian Penal Code, 1860 (45 of 1860) and the Authority shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure 1973 (2 of 1974) Section 16 Procedure and powers of Appellate Tribunal.- (1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural ....
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....e Appellate Tribunal may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by that court. Section 20 Penalty for wilful failure to comply with orders of Authority or High Court.- If any person wilfully fails to comply with the orders of the Authority or any order of the High Court, as the case may be, he shall be punishable with fine which may extend to one lakh rupees and in case of a second or subsequent offence with fine which may extend to two lakh rupees and in the case of continuing contravention with additional fine which may extend to two lakh rupees for every day during which the default continues. Section 20 Penalty for wilful failure to comply with orders of Appellate Tribunal.- If any person wilfully fails to comply with the order of the Appellate Tribunal, he shall be punishable with fine which may extend to one lakh rupees and in case of a second or subsequent offence with fine which may extend to two lakh rupees and in the case of continuing contravention with additional fine which may extend to two lakh rupees for every day during which such default cont....
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....mulated by this Court, the first facet of which relates to the scope of Section 36 of the Act. 24. Shri R.F. Nariman, learned Solicitor General argued that the power vested in the Authority to make regulations for carrying out the purposes of the Act is very wide and is not controlled by Section 36(2), which provides for framing of regulations on specified matters. He submitted that if power is conferred upon a statutory authority to make subordinate legislation in general terms, the particularization of the topics is merely illustrative and does not limit the scope of the general power. Learned Solicitor General further argued that for carrying out the purposes of the Act, the Authority can make regulations on various matters specified in other sections including Sections 8(1), 8(4), 11(1)(b), 12(4) and 13. He submitted that the regulations made under Section 36(1) and (2) are in the nature of subordinate legislation and are required to be laid before each House of Parliament in terms of Section 37 and Parliament can approve, modify or annul the same. He further submitted that a restrictive interpretation of Section 36(1) with reference to Clauses (a), (b) and (d) of Section 36....
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.... same from challenge before TDSAT. An ancillary argument made by Dr. Singhvi is that if regulations are framed on the topics covered by other provisions of the Act, then TDSAT will be denuded much of its jurisdiction and the purpose of creating an independent adjudicatory body will be defeated. Shri Mukul Rohatgi, learned senior counsel argued that the scope of Section 36(1) should be confined to the topics specified in sub-section (2) thereof, else the same will become inconsistent with other provisions of the Act including Sections 11(2), (4), 12(4) and 13. Shri Ramji Srinivasan, learned counsel appearing in some of the appeals, argued that the regulation making power under Section 36(1) cannot be used for nullifying the power of the Authority to issue directions on the topics specified in Sections 11(1)(b), 11(2), 12(4) and 13. 26. We have considered the respective arguments. Under the unamended Act, the Authority had the following three types of functions: RECOMMENDATORY FUNCTIONS Under Section 11 (1) (a) of the TRAI Act 1997, the Authority is required to make recommendations either suo moto or on a request from the licensor, i.e., Department of Telecommunications o....
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....e Service Providers, revenue sharing arrangement between Service Providers, quality of telecommunication services and interests of consumers. 27. After the amendment of 2000, the Authority can either suo motu or on a request from the licensor make recommendations on the subjects enumerated in Section 11(1)(a)(i) to (viii). Under Section 11 (1)(b), the authority is required to perform nine functions enumerated in clauses (i) to (ix) thereof. In these clauses, different terms like 'ensure', 'fix', 'regulate' and 'lay down' have been used. The use of the term 'ensure' implies that the Authority can issue directions on the particular subject. For effective discharge of functions under various clauses of Section 11(1) (b), the authority can frame appropriate regulations. The term 'regulate' contained in sub-clause (iv) shows that for facilitating arrangement amongst service providers for sharing their revenue derived from providing telecommunication services, the Authority can either issue directions or make regulations. 28. The terms 'regulate' and 'regulation' have been interpreted in large number of judgments. We may notice few of them. In V.S. Rice & Oil Mills v. State of A.P. AI....
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.... v. State of T.N. (1975) 1 SCC 375: 'The word "regulation" has no fixed connotation. Its meaning differs according to the nature of the thing to which it is applied.' In modern statutes concerned as they are with economic and social activities, 'regulation' must, of necessity, receive so wide an interpretation that in certain situations, it must exclude competition to the public sector from the private sector. More so in a welfare State. It was pointed out by the Privy Council in Commonwealth of Australia v. Bank of New South Wales (1949) 2 All ER and we agree with what was stated therein - that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic consideration and that it could not be laid down that in no circumstances could the exclusion of competition so as to create a monopoly, either in a State or Commonwealth agency, be justified. Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic activities and at some stage of social development, pr....
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....d "regulate" is not synonymous with the word "prohibit". This is true in a general sense and in the sense that mere regulation is not the same as absolute prohibition. At the same time, the power to regulate carries with it full power over the thing subject to regulation and in absence of restrictive words, the power must be regarded as plenary over the entire subject. It implies the power to rule, direct and control, and involves the adoption of a rule or guiding principle to be followed, or the making of a rule with respect to the subject to be regulated. The power to regulate implies the power to check and may imply the power to prohibit under certain circumstances, as where the best or only efficacious regulation consists of suppression. It would therefore appear that the word "regulation" cannot have any inflexible meaning as to exclude "prohibition". It has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the legislation, and the Court must necessarily keep in view the mischief which the legislature seeks to remedy. The question essentially is one of degree and it is impossible to fix any d....
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....of mines and mineral development" are incorporated both in the Preamble and the Statement of Objects and Reasons of this Act. Before that we find that the Preamble of our Constitution in unequivocal words expresses to secure for our citizens social, economic and political justice. It is in this background and in the context of the provisions of the Act, we have to give the meaning of the word "regulation". The word "regulation" may have a different meaning in a different context but considering it in relation to the economic and social activities including the development and excavation of mines, ecological and environmental factors including States' contribution in developing, manning and controlling such activities, including parting with its wealth, viz., the minerals, the fixation of the rate of royalties would also be included within its meaning." 34. Reference in this connection can also be made to the judgment in U.P. Coop. Cane Unions Federation v. West U.P. Sugar Mills Association (2004) 5 SCC 430. In that case, the Court interpreted the word 'regulation' appearing in U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and observed: " "Regulate" means ....
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....n 36(1) or that Section 36(2) restricts the scope of Section 36(1). 37. It is settled law that if power is conferred upon an authority/body to make subordinate legislation in general terms, the particularization of topics is merely illustrative and does not limit the scope of general power. In Emperor v. Sibnath Banerji AIR 1942 PC 156, the Privy Council considered the correctness of the judgment of the Federal Court, which held that Rule 26 of the Defence of India Rules framed under clause (j) of Section 3(2) of the Defence of India Act, 1939 was ultra vires the provisions of the Act. While reversing the judgment of the Federal Court, the Privy Council observed: "In the opinion of their Lordships, the function of subsection (2) is merely an illustrative one; the rule-making power is conferred by sub-section (1), and "the rules" which are referred to in the opening sentence of Subsection (2) are the . Rules which are authorized by, and made under, sub-section (1); the provisions of sub-section (2) are not restrictive of Sub-section (1), as, indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by sub-section (l)." 38. Th....
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....d by Section 298(1). These latter clauses merely illustrate and do not exhaust all the powers conferred on the Board, so that any cases not falling within the powers specified by Section 298(2) may well be protected by Section 298(1), provided, of course, the impugned Bye-law can be justified by-reference to the requirements of Section 298(1). There can be no doubt that the impugned Bye-laws in regard to the markets framed by Respondent 2 are for the furtherance of municipal administrate ion under the Act, and so, would attract the provisions of Section 298(1). Therefore, we are satisfied that the High Court was right in coming to the conclusion that the impugned Bye-laws are valid." (emphasis supplied) 39. In Rohtak Hissar District Electricity Supply Company Ltd. v. State of Uttar Pradesh and others AIR 1966 SC 1471, this Court dealt with the rule making power of the State Government under the Uttar Pradesh Industrial Disputes Act, 1947 and observed: " Section 15(1) confers wide powers on the appropriate Government to make rules to carry out the purposes of the Act; and Section 15(2) specifies some of the matters enumerated by clauses (a) to (e), in respect of which....
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....onferred by Sub-section (1). Sub-section (2) of Section 3 of the Act commences with the words 'Without prejudice to the generality of the powers conferred by Sub-section (1)'. It is manifest that Sub-section (2) of Section 3 of the Act confers no fresh powers but is merely illustrative of the general powers conferred by Sub-section (1) of Section 3 without exhausting the subjects in relation to which such powers can be exercised." 41. The question was again considered in D.K. Trivedi and Sons v. State of Gujarat 1986 (Supp) SCC 20. This Court was called upon to examine the challenge to the constitutionality of Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, the power of the State Governments to make rules under Section 15 to enable them to charge dead rent and royalty in respect of leases of mines and minerals granted to them and to enhance the rates of dead rent and royalty. While repelling the argument that the 1957 Act does not contain guidelines for exercise of power by the State Government under Section 15(1), this Court observed: "32. There is no substance in the contention that no guidelines are provided in the 1957 Act for th....
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....5. In our opinion, this makes no difference. What sub-section (2) of Section 13 does is to give illustrations of the matters in respect of which the Central Government can make rules for "regulating the grant of prospecting licences and mining leases in respect of minerals and for purposes connected therewith". The opening clause of sub-section (2) of Section 13, namely, "In particular, and without prejudice to the generality of the foregoing power", makes it clear that the topics set out in that sub-section are already included in the general power conferred by sub-section (1) but are being listed to particularize them and to focus attention on them. The particular matters in respect of which the Central Government can make rules under subsection (2) of Section 13 are, therefore, also matters with respect to which under sub-section (1) of Section 15 the State Governments can make rules for "regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith". When Section 14 directs that "The provisions of Sections 4 to 13 (inclusive) shall not apply to quarry leases, mining leases or other mineral con....
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....overnments have before them the restrictions and other matters provided for in Sections 4 to 12 while framing their own rules under Section 15(1)." (emphasis supplied) 42. The same proposition has been reiterated in Academy of Nutrition Improvement v. Union of India (2011) 8 SCC 274 [Para66] The observations contained in the last portion of that paragraph suggesting that the power conferred upon the rule making authority does not entitle it to make rules beyond the scope of the Act has no bearing on these cases because it has not been argued before us that the regulations framed under Section 36 are ultra vires the provisions of the Act. 43. Here it will be apposite to mention that Section 11(1)(b)(iv) specifically postulates making of regulations for discharging the functions specified in those clauses. Section 11(2), which contains non-obstante clause vis-à-vis the Indian Telegraph Act, 1885, lays down that the Authority may, from time to time, by order notify the rates at which the telecommunication services within or outside India shall be provided under the Act subject to the limitation specified in Section 11(3). Under Section 12(1), the Authority is empowered....
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....t the power to make regulations under Section 36 is non-delegable. The reason for excluding Section 36 from the purview of Section 33 is simple. The power under Section 36 is legislative as opposed to administrative. By virtue of Section 37, the regulations made under the Act are placed on par with the rules which can be framed by the Central Government under Section 35 and being in the nature of subordinate legislations, the rules and regulations have to be laid before both the Houses of Parliament which can annul or modify the same. Thus, the regulations framed by the Authority can be made ineffective or modified by Parliament and by no other body. 45. In view of the above discussion and the propositions laid down in the judgments referred to in the preceding paragraphs, we hold that the power vested in the Authority under Section 36(1) to make regulations is wide and pervasive. The exercise of this power is only subject to the provisions of the Act and the Rules framed under Section 35 thereof. There is no other limitation on the exercise of power by the Authority under Section 36(1). It is not controlled or limited by Section 36(2) or Sections 11, 12 and 13. 46. The secon....
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....n the 2003 Act and further that Section 111 of the 2003 Act contains only the word 'order' as against the words 'direction', 'decision' or 'orders' used in Section 14 but that these differences are insignificant and there is no justification to ignore the ratio of the judgment of the Constitution Bench. Shri Nariman submitted that distinction sought to be made by the other side with reference to the language of Sections 79, 111 and 178(2)(ze) of the Electricity Act, 2003 is illusory because after noticing Section 121 which uses the words 'orders', 'instructions' or 'directions', the Constitution Bench has unequivocally held that the said section does not confer power of judicial review on the Appellate Tribunal. 48. S/Shri A.S. Chandhiok, C.S. Vaidyanathan, Dr. A.M. Singhvi, Ramji Shrinivashan and Mukul Rohatgi, learned senior counsel relied upon the judgment of the larger Bench in L. Chandra Kumar vs. Union of India (supra) and argued that every Tribunal constituted under an Act of Parliament or State Legislature is empowered to exercise power of judicial review qua the rules and regulations. They also relied upon the judgments of this Court in Cellular Operators Assn. of India....
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....es specified in clauses (a), (b) and (c) of Section 14(2) could not be decided by the Bench constituted by the Chairperson. 50. Since the mechanism provided for settlement of disputes under Section 14 of the unamended Act was not satisfactory, Parliament substituted that section and facilitated establishment of an independent adjudicatory body known as TDSAT. Clause (a) of amended Section 14 confers jurisdiction upon TDSAT to adjudicate any dispute between a licensor and licensee, between two or more service providers and between a service provider and a group of consumers. Three exceptions to the adjudicatory power of TDSAT relates to the cases which are subject to the jurisdiction of Monopolies and Restrictive Trade Practices Commission, the complaint of an individual consumer which could be maintained under the consumer forums established under the Consumer Protection Act, 1986 and dispute between Telegraph Authority and any other person referred to in Section 7B(1) of the Indian Telegraph Act, 1885. In terms of clause (b) of Section 14 (amended), TDSAT is empowered to hear and dispose of appeal against any direction, decision or order of the Authority. Section 14A(1) prov....
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.... 'orders', sub-Sections (3) and (4) thereof used the word 'decision'. In terms of sub-Section (5), the orders and directions of the Authority were treated as binding on the service providers, Government and all other persons concerned. Section 18 provided for an appeal against any decision or order of the Authority. Such an appeal could be filed before the High Court. The amendment made in 2000 is intended to vest the original jurisdiction of the Authority in TDSAT and the same is achieved by Section 14(a). The appellate jurisdiction exercisable by the High Court is also vested in TDSAT by virtue of Section 14(b) but this does not include decision made by the Authority. Section 14-N provides for transfer to all appeals pending before the High Court to TDSAT and in terms of Clause (b) of sub-Section (2), TDSAT was required to proceed to deal with the appeal from the stage which was reached before such transfer or from any earlier stage or de novo as considered appropriate by it. Since High Court while hearing appeal did not have the power of judicial review of subordinate legislation, the transferee adjudicatory forum, i.e., TDSAT cannot exercise that power under Section 14(b). 5....
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....indicated in the statute itself and the decisions of this Court dealing with the power of a court, exercising appellate power or original power, will have no application for limiting the jurisdiction of the Appellate Tribunal under the Act. Since the Tribunal is the original authority to adjudicate any dispute between a licensor and a licensee or between two or more service providers or between a service provider and a group of consumers and since the Tribunal has to hear and dispose of appeals against the directions, decisions or order of TRAI, it is difficult for us to import the self-contained restrictions and limitations of a court under the judge-made law to which reference has already been made and reliance was placed by the learned Attorney-General." (emphasis supplied) 54. In Union of India v. TATA Teleservices (Maharashtra) Ltd. (supra), the two Judge Bench of this Court referred to the scheme of the Act and observed: "The conspectus of the provisions of the Act clearly indicates that disputes between the licensee or licensor, between two or more service providers which takes in the Government and includes a licensee and between a service provider and a grou....
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....ents cannot be relied upon for holding that in exercise of power under Section 14(b) of the Act TDSAT can hear an appeal against regulations framed under Section 36. 56. We may now deal with the judgment of three Judge Bench in Civil Appeal No.6743/2003 - Telecom Regulatory Authority of India v. BPL Mobile Cellular Ltd. is clearly distinguishable. The facts of that case were that in May, 2001 respondent No.1 offered a scheme as a promotional plan to its customers. Several thousand subscribers accepted the offer. In October, 2001 the scheme was dropped. A public interest litigation was filed by one subscriber challenging the unilateral dropping of the scheme by respondent No.1. The High Court passed an order and directed the appellant to submit a report in that connection. No report having been submitted, by a subsequent order dated 24.9.2002, the High Court directed the appellant to take steps after hearing the parties and submit a report of compliance within a period of three months from the date of the order. Pursuant to this directive the appellant passed an order on 23.12.2002 holding, inter alia, that respondent No.1 had violated the provisions of the Telecommunication Tari....
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.... there is no reason not to include the orders and regulations containing directions within the word 'directions.' This would also be a logical corollary as such regulations and orders have appended to them a more serious mandate." 57. From the above extracted portion of the order it is evident that the Bench, which decided the matter, felt that the view taken by TDSAT would encourage rampant violation of the orders without any penal consequence and the entire scheme of the Act would become unworkable. The word 'directions' used in Section 29 of the Act was interpreted to include orders and regulations in the context of the factual matrix of that case and the apprehension of the Court that Section 29 would otherwise become unworkable, but the same cannot be read as laying down a proposition of law that the words 'direction', 'decision' or 'order' used in Section 14(b) would include regulation framed under Section 36, which are in the nature of subordinate legislation. 58. In PTC India Ltd. v. Central Electricity Regulatory Commission (surpa), the Constitution Bench framed the following questions: "(i) Whether the Appellate Tribunal constituted under the Electr....
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....part of administrative process resembling a judicial decision by a court of law. 50. Applying the above test, price fixation exercise is really legislative in character, unless by the terms of a particular statute it is made quasi-judicial as in the case of tariff fixation under Section 62 made appealable under Section 111 of the 2003 Act, though Section 61 is an enabling provision for the framing of regulations by CERC. If one takes "tariff" as a subject-matter, one finds that under Part VII of the 2003 Act actual determination/fixation of tariff is done by the appropriate Commission under Section 62 whereas Section 61 is the enabling provision for framing of regulations containing generic propositions in accordance with which the appropriate Commission has to fix the tariff. This basic scheme equally applies to the subject-matter "trading margin" in a different statutory context as will be demonstrated by discussion hereinbelow." The Bench then referred to the judgments in Narinder Chand Hem Raj v. Lt. Governor, H.P. (1971) 2 SCC 747 and Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641 and held: "53. Applying the abovementioned t....
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.... conformity with the regulations under Section 178. 55. To regulate is an exercise which is different from making of the regulations. However, making of a regulation under Section 178 is not a precondition to the Central Commission taking any steps/measures under Section 79(1). As stated, if there is a regulation, then the measure under Section 79(1) has to be in conformity with such regulation under Section 178. This principle flows from various judgments of this Court which we have discussed hereinafter. For example, under Section 79(1)(g) the Central Commission is required to levy fees for the purpose of the 2003 Act. An order imposing regulatory fees could be passed even in the absence of a regulation under Section 178. If the levy is unreasonable, it could be the subject-matter of challenge before the appellate authority under Section 111 as the levy is imposed by an order/decision-making process. Making of a regulation under Section 178 is not a precondition to passing of an order levying a regulatory fee under Section 79(1)(g). However, if there is a regulation under Section 178 in that regard then the order levying fees under Section 79(1)(g) has to be in consonanc....
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....n 178, which deals with making of regulations by the Central Commission, under the authority of subordinate legislation, is wider than Section 79(1) of the 2003 Act, which enumerates the regulatory functions of the Central Commission, in specified areas, to be discharged by orders (decisions). (ii) A regulation under Section 178, as a part of regulatory framework, intervenes and even overrides the existing contracts between the regulated entities inasmuch as it casts a statutory obligation on the regulated entities to align their existing and future contracts with the said regulation. (iii) A regulation under Section 178 is made under the authority of delegated legislation and consequently its validity can be tested only in judicial review proceedings before the courts and not by way of appeal before the Appellate Tribunal for Electricity under Section 111 of the said Act. (iv) Section 121 of the 2003 Act does not confer power of judicial review on the Appellate Tribunal. The words "orders", "instructions" or "directions" in Section 121 do not confer power of judicial review in the Appellate Tribunal for Electricity. In this judgment, we do not wish to an....
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...., in either case, a post filled by a civilian; (b) all service matters concerning- (i) a member of any All-India Service; or (ii) a person not being a member of an All-India Service or a person referred to in clause (c) appointed to any civil service of the Union or any civil post under the Union; or (iii) a civilian not being a member of an All-India Service or a person referred to in clause (c) appointed to any defence, services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government; (c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation or society or other body, at the disposal of t....
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....t as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which t....