TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
NEW DELHI
Dated 10th APRIL, 2012
Petition No.75 of 2012
(M.A.No.112 of 2012)
Reliance Infratel Ltd. … Petitioner
Versus
Etisalat DB Telecom Pvt. Ltd., Mumbai … Respondent
Petition No.76 of 2012
(M.A.No. 113 of 2012)
Reliance Communications Ltd. … Petitioner
Versus
Etisalat DB Telecom Pvt. Ltd., Mumbai … Respondent
Petition No.93 of 2012
(M.A. No. 103 & 104 of 2012)
Reliance Telecom Limited … Petitioner
Versus
S. Tel Pvt. Ltd ... RespondentPage 2 of 97
Petition No.94 of 2012
(M.A. No. 105 & 106 of 2012)
Reliance Communications Limited … Petitioner
Versus
S. Tel Pvt. Ltd ... Respondent
Petition No.95 of 2012
(M.A. No. 107 & 108 of 2012)
Reliance Infratel Limited …Petitioner
Versus
S. Tel Pvt. Ltd ... Respondent
BEFORE:
HON’BLE MR. JUSTICE S.B.SINHA, CHAIRPERSON
HON’BLE MR. P.K.RASTOGI,MEMBER
For Petitioner : Mr. Ramji Srinivasan, Sr.
Advocate
Mr.Thomas P. Kuruvilla, Advocate
Mr. Nakul Mohta, Advocate
Ms.Shally Bhasin, Advocate
Ms.Shikha Sarin, Advocate
For Respondent - Etisalat : Mr. Maninder Singh, Sr. Advocate
Mr.Ashish Prasad, Advocate
Mr.Tejveer Singh Bhatia, Advocate
Mr. Divyakant Lahoti, Advocate
For Respondent – S. Tel : Mr.Dayan Krishnan, Advocate
Mr.Amit Gupta, Advocate
Mr.Gautam Narayan, AdvocatePage 3 of 97
O R D E R
S.B. Sinha
Introduction
`Certainty‟ is integral to Rule of Law, said the Supreme Court of India
recently in Vodafone International Holdings B.V. vs. Union of India and Anr.
reported in 2012 (1) SCALE 530.
It was also stated :-
“Certainty and stability form the basic foundation of any fiscal
system.”
[See also Reliance Energy Ltd. and Anr vs. Maharashtra State Road
Development Corp. Ltd and Ors. (2007) 8 SCC 1]
2. `Certainty in law‟ is highly desirable. Some academics state (with
which many jurists do not agree) that one question must have one answer.
3. Adrian Vermeule in a book titled `Judging under Uncertainty‟ broke
new grounds contending that the conceptual approach and the judge
centered conclusion of older theories must give way to legal interpretation
premised on institutional theories. According to the learned author, severe
empirical uncertainty should give way to deference to administrative Page 4 of 97
agencies where statutes are unclear and deference to legislatures where
constitutional language is unclear.
What should be done by the higher judiciary in a country like India is
a different question.
4. Herring A. Willington in his book `Interpreting the Constitution‟
would say “if the law were clear and static a day in court would be
important only in sorting out factual matters what happen, when, to whom
and so on”.
5. Law and life is not that easy. Law should change with the change of
time but we thought that normative standards for determining the
jurisdiction of a specialized Tribunal are well settled but despite the same
jurisdictional issues are being raised by the litigants again and again
heading to conflicting judgments creating uncertainty.
6. Construction of a Parliamentary Act constituting a new Tribunal
relying on or on the basis of the decision of a High court and divesting
another authority therefrom should have led to some amount of certainty.
Whether a Court or a Tribunal has jurisdiction to decide a dispute of
particular nature is of vital importance to a suitor. Page 5 of 97
7. Different suitors are advised differently and approach different
forums. In some of the cases ultimately they lose because of want of
jurisdiction of the forum they approached. There are instances where they
approach another forum only to be informed that it has also no jurisdiction.
In recent times a disturbing trend is being noticed.
8. Even a litigant like the Union of India has been taking different stands
before different benches resulting in rendition of different opinions. Even
the law of precedent is not certain in an era where judicial discipline is not
maintained even by the co-ordinate benches of the same court.
It may be true that precedents may differ keeping in view the different
interpretive processes applied by the Courts in different situations arising
out of the different factual matrices, but the basic principle should not be in
issue.
With this state of uncertainty, we have been called upon to determine
the jurisdiction issue in these matters.
9. A jurisdictional question may be raised as a ploy. It may be raised to
buy some time to avoid interim orders. But when a prima facie case in this
behalf is made out, the Courts, having regard to the provisions contained in
Order XIV Rule 2 of the Code of Civil Procedure or the principles analogous
thereto as also a large number of decisions rendered by the Apex Court, are
bound to consider the same as a preliminary issue. Page 6 of 97
10. This Tribunal, was called upon and had to deal with the issue of its
jurisdiction from the time it came into being i.e. in the year 2000 at least on
50 occasions.
Law in this behalf, despite the same, does not appear to be certain
even now.
With the aforementioned note, we may notice the issue on merit.
11. We would notice the fact of the matter from Petition No.75 of 2012
filed by the Reliance Infratel Ltd.
Grounds of Challenge
12. Jurisdiction of this Tribunal is in issue in these petitions which arose
by reason of non-payment of a huge amount by the Respondents herein,
who are licensees under Section 4 of the Indian Telegraph Act, 1885 (the
1885 Act).
Reliance Infratel Ltd. is holder of a registered certificate of ISP–1
category. Other Petitioners, however, hold licenses under the said 1885 Act.
13. It was granted a Registration Certificate to provide passive
infrastructure by way of `dark fibers, right of way, duct space and tower‟ for
the purpose of grant on lease/rent/ sale basis to the licensees of Telecom Page 7 of 97
Services licensed under Section 4 of the Act on mutually agreed terms and
conditions.
14. It is contended that as a registrant, the Petitioner could not render
any `telecommunication service‟ being not only debarred from doing so but
also in view of the fact that it is not a licensee within the meaning of the
provisions of Section 4 of the Act.
Registration Certificate
15. We may notice some of the clauses of the said Registration Certificate
which was granted to Reliance Infratel on or about 12.1.2007 by the Union
of India:-
“2.0 – In no case the company shall work and operate or
provide telegraph service including end to end bandwidth
as defined in Indian Telegraph Act, 1885 either to any
service provider or any other customer.
6.0 – The Registered Company can provide the
infrastructure as stated above to any licensee of Telegraph
services licensed under Section 4 of the Indian Telegraph
Act 1885. The company shall, in no case, grant in any
manner the infrastructure to any erstwhile Licensee whose
license is either terminated or suspended or not in
operation at given point of time. In the event of any
infrastructure allowed before hand, then the Registered
company shall be obliged to withdraw the grant of
infrastructure and to disconnect or sever connectivity
immediately without loss of time and further, upon receipt
of any reference from the Licensor in this regard,
disconnection shall be made effective within an hour of
receipt of such reference. On the question of Page 8 of 97
disconnectivity the decision of the Director General Telecom
shall be final.
7.4 - The Government shall have the right to take over the
equipment and networks of the Registered company or
revoke/terminate/suspend the Registration of the
company either in part or in whole as per directions if any,
issued in the public interest by the Government in case of
emergency or war or low intensity conflict or any other
eventuality. Provided any specific orders or direction from
the Government issued under such conditions shall be
applicable to the Registered company and shall be strictly
complied with. Further, the Government reserves the right
to keep any area out of the operation zone of the service if
implications of security so require.
7.5 – Government reserves the right to modify these
conditions or incorporate new conditions considered
necessary in the interest of national security and public
interest.
7.6 - The Registered company will ensure that the
Telecommunication installation carried out by it should not
become a safety hazard and is or in contravention of any
statue, rule or regulation and public policy.”
16. This certificate shows that the ISP Category I Registration Certificate
contains several restrictions in its operation. Such restrictions have been
placed by way of terms and conditions of license as envisaged under the
Proviso appended to Section 4 of the 1885 Act.
The Agreement
17. The parties hereto entered into an agreement on or about 7.7.2009.Page 9 of 97
18. Some of the relevant clauses of the said agreement read as under:-
“B. Service Provider is engaged in, inter alia, providing and
making available the Services (as defined hereinafter) at its
various Site (s) (as defined hereinafter) to cellular mobile
telecom operators, pursuant to license as provided by the
Department of Telecommunication (`DoT‟), in India. The
Service Provider is registered with DoT, Ministry of
Communication, Government of India, as “Infrastructure
Provider Category – I”;
1.3 “Applicable Law” means and, includes all applicable
Indian statutes (both Central as well as State) including any
ordinances, rules, bye laws, regulations, notifications,
guidelines, policies, directions, directives and orders, of any
Government Authority, statutory authority, tribunal, board,
court, as may be applicable, including, without limitation any
applicable rules and regulations of the DoT, the Telecom
Regulatory Authority of India (TRAI) etc.;
1.13 “Customer Equipment” means such telecom and
electronic equipment, which in conjunction with the Passive
Telecom Infrastructure, is required for providing
telecommunication services, maintained and operated by
Customer, as more – particularly described in Annexure 1”
19. Para 2 of the said agreement provides for the scope of services in the
following terms:-
“2.1 The Customer hereby appoints the Service Provider to
provide the Services at the Sites and the Service Provider has
agreed to provide such Services at Sites to the Customer and
Customer has agreed to avail Services under the terms and
conditions of this Agreement. The parties acknowledge that
this Agreement is on a non exclusive basis.”
20. Some of the others relevant provisions are as under:Page 10 of 97
“4.3 The Service Provider shall assist the Customer in
achieving its launch by providing the Sites as mentioned in
this Agreement.
7.5 Service Provider shall procure all approvals necessary for
development of each of Site(S) and for the installation,
commissioning, enhancements and operation of Passive
Telecom Infrastructure, including without limitation the
Infrastructure Provider Category- I registration. Service
Provider to provide copies of such documents to the Customer
and shall promptly respond to any queries raised in this
regard by the Customer.
7.9 Service Provider shall submit performance and progress
report with respect to uptime/ downtime, deployment SLA‟s
detailed in Annexure 5. The periodicity of the said reports
shall be in accordance and manner as mutually agreed from
time to time.
10.2.4 Service Provider shall have no responsibility for the
licensing, operation and/or maintenance of Customer
Equipment or the services provided by the Customer in its
capacity as a Unified Access Service Provider”
Clause 21.1 provides for the mechanism of settlement of disputes.
Clause 22 provides for an Arbitration Agreement.
The Present Proceedings
21. Inter alia on the premise that the Respondent failed and/or neglected
to make payments pursuant to or in terms of the said agreement, which
became due and payable as on 31.1.2012, these petitions have been filed.Page 11 of 97
The claim in the first petition is for recovery of a sum of Rs.1270.45
crores.
22. The interim prayers made by the Petitioner are as under:-
“i) A direction to the Respondent to secure the
outstanding of over Rs. 1270.45 crore as on 31.01.2012 by
way of deposit in Court and/or attachment of the
equipments of the Respondent.
ii) A direction to the Respondent, to secure the outstanding
amount of Rs. 1270.45 Crore as on 31.01.2012, restraining
the Respondent from in any manner dealing with/disposing
off or parting with possession, alienating, transferring or
selling or encumbering or creating third party rights or
charge on any of the assets and movable or immovable
properties, advances, loans etc. of the Respondent or on
any part thereof.
iii) Attachment of all the movable and immovable
properties of the Respondent including but not limited to
bank accounts/ machineries/ equipments.
iv) Pending the hearing and final disposal of the Petition
appoint a competent person as receiver in respect of all the
assets both movable and immovable, and affairs of the
Respondent.
v) Restrain the Respondent from interfering with the
Petitioner‟s possession and control of the existing sites
including in respect of the equipment installed by
Respondent
vi) Petitioner shall be permitted to have lien on the
Respondent‟s equipmentsPage 12 of 97
vii) The Respondent be directed to disclose and/ or
furnish information to the Petitioner of all its assets both
movable and immovable as also receivables.”
The Reply
23. Notices having been issued, the Respondent(s) have filed short replies
wherein the question of jurisdiction of this Tribunal has been raised inter
alia on the premise that the Petitioner being not a licensee within the
meaning of the Proviso appended to Section 4 of `the 1885 Act‟ as it does
not render any `Telecommunication Services‟ as envisaged under Section 2
(k) of the Telecom Regulatory Authority of India Act, 1997 (in short the
`1997 Act‟); this Tribunal has no jurisdiction to determine the disputes
between the parties in terms of Section 14 thereof. Moreover, the
agreements contain arbitration clauses and on that premise too, the
jurisdiction of the Tribunal is ousted.
In the other cases the Petitioners contend that they hold licenses
under `the 1885 Act‟.
24. To the said contention, it was urged by the Respondent that the
Petitioner(s) in fact also hold Certificates of Registration in ISP-1 Category
and the agreement between the parties had been entered into by them in
that capacity.
We, at this stage, cannot go into the said question.Page 13 of 97
25. A contention has been raised by the Respondent Etisalat D.B. that an
application for winding up of the company has been filed before the Bombay
High Court.
26. S. Tel. Ltd., moreover contends that in view of the judgment of the
Supreme Court of India in Centre for Public Interest Litigation vs. UOI
reported in (2012) 3 SCC 1, the licenses held by it having been directed to
be cancelled as also having stopped rendering any service pursuant thereto,
this Tribunal has no jurisdiction.
Submissions on Jurisdiction Issue
27. Mr. Maninder Singh, learned senior counsel appearing on behalf of
the Respondent Etisalat D.B. would contend:
(i) The terms of the Registration Certificate
granted in favour of the Petitioner dated 12.1.2007
would clearly go to show that the Registrant having
no function to perform either in terms of `the 1885
Act‟ or as a service provider, this petition is not
maintainable.
(ii) Having regard to the definition of `licensee‟ and
`service provider‟ in the 1997 Act, Section 14 (1) Page 14 of 97
(a) (i) and (ii) thereof cannot be said to have any
application as the certificate of registration
mentions about `assets‟ and not `Telegraph‟ or
`Equipment‟.
(iii)In any event in terms of Clause 2 of the said
Certificate of Registration/Certificate, a permission
to provide Telecommunication Services having not
been granted, the Petitioner is not entitled to any
relief from this Tribunal.
(iv)The parties hereto having entered into an
arbitration agreement, the provisions of the
Arbitration and Conciliation Act, 1996 shall apply
and not the provisions of the 1997 Act.
(v) The Petitioner, thus, having nothing to do with
`Telegraph‟ and as such being not capable to
provide any `Telecommunication Services‟ either as
a licenses or otherwise, this Tribunal should hold
that it cannot determine the issue between the
parties on merit. Page 15 of 97
28. Mr. Dayan Krishnan, learned counsel appearing for the S.Tel Pvt.
Ltd., adopted the submissions of Mr.Singh and furthermore contended that
his client having ceased to be a licensee or a service provider, these petitions
are not maintainable.
29. Mr.Ramji Srinivasan, learned senior counsel appearing on behalf of
the Petitioners, on the other hand, submitted :-
(i) It would not be correct to contend that only
because there exists an arbitration clause; this
Tribunal‟s jurisdiction is ousted keeping in view the
object and purpose for which the 1997 Act had been
enacted.
(ii) A distinction must be made between a dispute
between the licensor and licensee and one between a
service provider and a service provider.
(iii) A holder of ISP Registration Certificate is also a
service provider and, thus, the Respondent being
admittedly a licensee and, thus, a service provider, a
dispute inter se between two service providers can be
determined only by this Tribunal and not any other
Court/Forum.Page 16 of 97
(iv) The terms `any dispute‟ occurring in Section 14 of
the 1997 Act must be held to be of wide amplitude and
this Tribunal having the requisite jurisdiction to
determine the same, the term `service provider‟ should
also be construed in the widest possible term.
(v) From a perusal of the Preamble to the Act, it
would be evident that this Tribunal has not only
jurisdiction to adjudicate `any dispute‟, but also to
protect the interest of the service providers in the
Telecom Sector; proper meaning thereto must be given.
(vi) The provisions of Sections 11, 12 and 13 of the
1997 Act providing for functions of the TRAI, are not
limited to the licenses granted under the 1885 Act and
the Regulator having the jurisdiction to make
regulations with regard to Passive Infrastructure also,
there cannot be any doubt or dispute that this Tribunal
would have jurisdiction to adjudicate the dispute
between the parties hereto.
(vii) The word `Telegraph‟ would include both
`Passive Infrastructure‟ and `Active Infrastructure‟ and Page 17 of 97
keeping in view the fact that the Respondent itself
could carry out those activities and it having
outsourced the same, the Petitioner must also be held
to have been functioning as a service provider.
(viii) The word `and‟ contained in Section 4 of the
1885 Act should be read as `or‟ and so read, an
appropriate meaning can be assigned to the UOI‟s
power sofar as its right to part with exclusive privilege
is concerned.
(ix) There are various decisions of this Tribunal
wherein inter alia it has been held that
interconnectivity between the service providers need
not be established for the purpose of maintainability of
the petition and, thus, it must be held that these
petitions are maintainable.
(x) The Respondent before the Delhi High Court in
another matter having categorically stated that this
Tribunal only has jurisdiction, it is estopped and
precluded from questioning the jurisdiction of this
Tribunal. Page 18 of 97
The 1885 Act
30. The Act was enacted to amend the law relating to `Telegraphs‟ in India.
Section 4 of the Act and the Proviso appended thereto, which is
relevant for our purpose, read thus :-
“4. Exclusive privilege in respect of telegraphs, and
power to grant licenses.
(1) Within [India], the Central Government shall have exclusive
privilege of establishing, maintaining and working telegraphs:
Provided that the Central Government may grant a license,
on such conditions and in consideration of such payments as
it thinks fit, to any person to establish, maintain or work a
telegraph within any part of [India]”
31. Section 20 provides for penalty, sub-section 1 whereof reads thus :-
“20. Establishing, maintaining or working unauthorized
telegraph –
(1) if any person establishes, maintains or works a telegraph
within (India) in contravention of the provisions of Section 4 or
otherwise than as permitted by rules made under that section,
he shall be punished, if the telegraph is a wireless telegraph,
with imprisonment which may extend to three years, or with
fine, or with both, and, in any other case, with a fine which
may extend to one thousand rupees.”Page 19 of 97
The 1933 Act
32. In the year 1933 the Indian Wireless Telegraphy Act (hereinafter
called and referred to for the sake of brevity as „The 1933 Act‟) was enacted
for the purpose of regulating the possession of the Wireless Telegraphy
Apparatus, Section 5 whereof reads thus :-
“5. Licenses – The telegraph authority constituted under the
Indian Telegraph Act, 1885 (13 of 1885), shall be the authority
competent to issue licenses to possess wireless telegraphy
apparatus under this Act, and may issue licenses in such
manner, on such conditions and subject to such payments as
may be prescribed.”
Section 3 prohibits possession of „wireless telegraphy apparatus‟
without a license.
Section 6 provides for a penal provision.
The 1997 Act
33. The Parliament enacted the 1997 Act constituting Telecom Regulatory
Authority of India (TRAI).
The TRAI has not only the power to frame Regulations, it may execute
and monitor the provisions thereof as well as adjudicate on any dispute
between the parties. Page 20 of 97
34. By reason of Act 2 of 2000, however, this Tribunal was constituted as
a result whereof the TRAI was divested of its adjudicatory functions.
35. We may notice at the outset the Preamble of the 1997 Act.
“An Act to provide for the establishment of the [Telecom
Regulatory Authority of India and the Telecom Disputes
Settlement and Appellate Tribunal to regulate the
telecommunication services, adjudicate disputes, dispose of
appeals and to protect the interest of service providers and
consumers of the telecom sector, to promote and ensure
orderly growth of the telecom sector] and for matters
connected therewith or incidental thereto.”
36. Section 2 (e) defines a `licensee‟ to mean any person licensed under
sub-section 1 of Section 4 of the Act for providing specified public
telecommunication services.
The word `licensor‟ has been defined to mean the Central Government
or the Telegraph Authority who grants a license thereunder.
37. Section 2 (j) defines `service provider‟ in the following terms:-
“service provider” means the Government as a service
provider and includes a licensee”
38. `Telecommunication Services‟ has been defined in Section 2 (k)
thereof. It reads as under:-Page 21 of 97
"2(k) - „telecommunication service‟ means service of any
description (including electronic mail, voice mail, data services,
audio tax service, video tax services, radio paging and cellular
mobile telephone services) which is made available to users
by means of any transmission or reception of signs, signals,
writing, images and sounds or intelligence of any nature, by
wire, radio, visual or other electro-magnetic means but shall
not include broadcasting services.
[Provided that the Central Government may notify other
service to be telecommunication service including broadcasting
services.]
39.Subsection 2 of Section 2 reads as under:
“(2) Words and expressions used and not defined in this Act
but defined in the Indian Telegraph Act, 1885 or the Indian
Wireless Telegraphy Act, 1933 (17 of 1933) shall have the
meanings respectively assigned to them in those Acts.”
40. Sections 11, 12 and 13 of the Act provide for the regulatory powers of
the TRAI.
Clause (a) of sub-Section 1 of Section 11 empowers it to make
recommendations either suo motu or on a request of the licensor; whereas
Clause (b) thereof enumerates its functions.
Section 12 empowers the TRAI to call for information, conduct
investigations etc.
41. Section 14 of the 1997 Act reads as under :-Page 22 of 97
“Section 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) disputes between telegraph
authority and any other person referred to
in sub-section (1) of section 7B of the Indian
Telegraph Act, 1885 (13 of 1885);
(b) hear and dispose of appeal against any direction, decision
or order of the Authority under this Act.”Page 23 of 97
Section 14 (A) of the 1997 Act lays down the procedures for filing a
petition before this Tribunal.
42. Section 15 bars the jurisdiction of the Civil Courts.
Interpretation Clause
43. The interpretation of the words `means‟ and `includes‟ is well-settled
by now.
44. The word `means‟ will show that it will have no other meaning;
whereas the words `includes‟ will show that the definition is expansive.
[See DDA vs. Bhola Nath Sharma (2011) 2 SCC 54 and UOI and
Anr. vs. Association of Unified Telecom Service Providers of India & Ors.
(2011) 10 SCC 543]
45. In Bharat Coop. Bank (Mumbai) Ltd. vs. Coop. Bank Employees
Union reported in (2007) 4 SCC 685 wherein its earlier decision in P.
Kesilngam and Ors. vs. P.S.G. College of Technology and Ors. reported in
1995 Supp (2) SCC 348 has been referred to the law has been laid down by
the Apex Court in the following terms:-
“23. Section 2(bb) of the ID Act as initially introduced by Act
54 of 1949 used the word "means... and includes" and was
confined to a "Banking Company" as defined in Section 5 of Page 24 of 97
the Banking Companies Act, 1949, having branches or other
establishments in more than one province and includes
Imperial Bank of India. Similarly, Section 2(kk), which was
also introduced by Act 54 of 1949, defines Insurance
Company as "an Insurance Company defined in Section 2 of
the Insurance Act, 1938 (IV of 1938), having branches or other
establishments in more than one province". It is trite to say
that when in the definition clause given in any statute the
word "means" is used, what follows is intended to speak
exhaustively. When the phrase "means" is used in the
definition, to borrow the words of Lord Esher M.R. in Gough
vs. Gough , it is a "hard and fast" definition and no meaning
other than that which is put in the definition can be assigned
to the same. (Also see: P. Kasilingam and Ors. vs. P.S.G.
College of Technology and others ). On the other hand, when
the word "includes" is used in the definition, the legislature
does not intend to restrict the definition; makes the definition
enumerative but not exhaustive. That is to say, the term
defined will retain its ordinary meaning but its scope would
be extended to bring within it matters, which in its ordinary
meaning may or may not comprise. Therefore, the use of the
word "means" followed by the word "includes" in Section 2(bb)
of the ID Act is clearly indicative of the legislative intent to
make the definition exhaustive and would cover only those
banking companies which fall within the purview of the
definition and no other.”
46. The difficulty arises in the instant case having regard to the
uncertainty attached to the interpretation of the word `service provider‟.
The said word has not been defined. It has to be assigned a meaning. What
constitutes „service‟ and who provides service to whom would be the
question.
Ordinarily service need not be provided to the customers only. It may
be provided to other service providers as well.Page 25 of 97
47. The Government may or may not provide service in its capacity as a
`licensor‟ or `owner of exclusive privilege‟, but if that be so it was expected
that the Parliament would clearly state as to in what capacity it would
render service and to whom. Both the Government and the licensee in
terms of the definition are service providers.
48. Similarly `Telecommunication Services‟ as defined in Section 2 (k)
employs the words `service of any description‟.
Both the aforementioned words are very wide in nature and therefore,
in our opinion, deserve a purposive interpretation.
Interpretation Issue
49. Interpretation of any statute is required to be taken recourse to when
the general meaning of the relevant provision is not clear.
50. Subsidiary rules of interpretation is necessary to be resorted to for the
purpose of considering the words „and‟ and „or‟ used in a statute to be
`conjunctive‟ or `disjunctive‟.
51. Whereas Mr.Ramji Srinivasan would contend that the word `and‟
should be read as `or‟ in Section 4 of the Act; Mr.Maninder Singh would Page 26 of 97
contend that the word `or‟ should be read as `and‟ in the proviso appended
thereto.
There cannot be any doubt or dispute that `and‟ can be read as `or‟
and the vice versa.
52. The statutory scheme has to be considered upon reading the statute
as a whole. It is well settled that a statute must be read in its entirety and
then Chapter by Chapter, Section by Section and thereafter Word by Word.
Interpretation of Section 4 of the Act so far as the submissions raised
by the learned counsel for the parties is concerned i.e. or may be read as
„and‟ and „or‟ may be read as „and‟, must also be considered having regard
to the provisions of Sections 7 and 20 of the Act. The said provision also
uses the word `or‟.
53. The circumstances in which the expression `and‟ can be read as `or‟
and vice versa has been examined by the Supreme Court in Union of India
v. Ind-Swift Laboratories Limited, (2011) 4 SCC 635 at page 641 in the
following words:
“17. A statutory provision is generally read down in order
to save the said provision from being declared
unconstitutional or illegal. Rule 14 specifically provides that
where CENVAT credit has been taken or utilised wrongly or
has been erroneously refunded, the same along with
interest would be recovered from the manufacturer or the
provider of the output service. The issue is as to whether
the aforesaid word “or” appearing in Rule 14, twice, could Page 27 of 97
be read as “and” by way of reading it down as has been
done by the High Court. If the aforesaid provision is read
as a whole we find no reason to read the word “or” in
between the expressions “taken” or “utilised wrongly” or
“has been erroneously refunded” as the word “and”. On
the happening of any of the three aforesaid circumstances
such credit becomes recoverable along with interest.”
54. It was further held that:
“21. Therefore, the attempt of the High Court to read down
the provision by way of substituting the word “or” by an “and”
so as to give relief to the assessee is found to be erroneous. In
that regard the submission of the counsel for the appellant is
well founded that once the said credit is taken the beneficiary
is at liberty to utilize the same, immediately thereafter, subject
to the Credit Rules.”
The said decision was rendered in the context of a `Taxing Statute‟. It
was held having regard to an order passed by an appropriate authority
while exercising a power of judicial review; the same should not be read
down.
55. The provisions of Section 4 and the proviso appended thereto have
been used for different purposes.
Section 4 stipulates that the Central Government shall be the holder
of `exclusive privilege‟ in respect of Establishment, Maintenance and
Working of a Telegraph. The exclusive privilege, therefore, was in respect of
all three components of `telegraph activities‟. Page 28 of 97
The proviso, however, uses the word `or‟ in the context of parting with
the said privilege.
In the opinion of this Tribunal, the Union of India being statutorily
entitled to part with its privilege in its entirety is also entitled to part
therewith in bits and pieces.
56. Section 7 of the Act provides for a rule making power; sub-sections 1
and 3 whereof reads as under :-
“7. Power to make rules for the conduct of
telegraphs
(1) The Central Government may, from time to time, by
notification in the Official Gazette, make rules consistent with
this Act for the conduct of all or any telegraphs established,
maintained or worked by the Government or by persons
licensed under this Act.
(3) When making rules for the conduct of any telegraph
established, maintained or worked by any person licensed
under this Act, the Central Government may by the rules
prescribe fines for any breach of the same:
Provided that the fines so prescribed shall not exceed the
following limits, namely:-
i. When the person licensed under this Act is punishable
for the breach, one thousand rupees, and in the case of
a continuing breach a further fine of two hundred
rupees for every day after the first during the whole or
any part of which the breach continues.
ii. When a servant of the person so licensed, or any
other person, is punishable for the breach, one-fourth of
the amounts specified in clause (i).”
(Emphasis supplied)Page 29 of 97
57. The 1885 Act, therefore, itself contemplated that rules could be
framed in respect of all or any of the components of a `Telegraph‟.
How the Central Government itself understood the same would also
be relevant.
58. Recently, in Krishi Utpadan Mandi Samiti, Allahabad vs. Baidyanath
Ayurved Bhawan Pvt. Ltd. (2011) 12 SCC 277, circular letter issued under
the Rules had also been taken into consideration in construing the
exemption provision contained in the Act.
We have noticed heretobefore that the word `service provider‟ having
not been defined, the ordinary popular or commonsense meaning may be
attributed to it to. (See Commissioner of Customs, Calcutta vs. G.C. Jain
and Anr. (2011) 12 SCC 713).
We may furthermore note that after two public sector undertakings
had come into being; namely MTNL and BSNL, the Government does not
act as a `service provider‟. It may, however, do so.
59. The definition of `service provider‟ was amended in January, 2000. At
that point of time the Government used to provide services, BSNL having
been constituted in the later part of the same year. Page 30 of 97
60. There is no prohibition on the part of the Government to provide
services even now, and for any reason whatsoever, it may reserve unto itself
the right to provide service.
61. Rendition of „telecommunication services‟ may take place at several
stages. For the purpose of interpretation of the dispute resolution clause
contained in the 1997 Act, the Apex Court in Tata Teleservices (supra) held
that even a letter of intent holder would be a licensee.
Service has to be rendered to the ultimate consumer effectively and
efficiently. How and in what manner the same would be done maybe a
subject matter of Regulation. Guidelines therefor can also be provided.
62. Jurisdiction of this Tribunal does not end with the transmission of
signals to the customer but also the activities of the licensee even thereafter.
The consumer may have a grievance against the licensee, which has to be
redressed. The standard of the equipments may have to be laid down.
63. We need not elaborate on this issue as from the discussions made
hereinafter it would be evident that rendition of service can be effected at
different stages. It is only in that view of the matter, in our opinion, the
term „telecommunication service‟ cannot be ascribed a narrow meaning.
This would lead to a further question as to what the word `service
provider‟ ordinarily means. It‟s meaning is simple, i.e, who provides Page 31 of 97
service. It does not say service must be provided to the ultimate consumer.
May be that is the ultimate goal but in a given case the licensee may
outsource its activities. What, however, is essential is that the last leg of
services must be rendered to the customer.
64. In Union of India vs. Martin Lottery Agencies Ltd. (2009) 12 SCC 209,
in the context of Service Tax Act, it was noticed:
“20. The word `service' has not been defined in the Act. Its
dictionary or etymological meaning may or may not be
appropriate. We would, however, notice its dictionary
meaning :
"Work done or duty performed for another or others;
a serving; as, professional services, repair service, a
life devoted to public service.
An activity carried on to provide people with the use
of something, as electric power, water,
transportation, mail delivery, telephones, etc.
Anything useful, as maintenance, supplies,
installation, repairs, etc., provided by a dealer or
manufacturer for people who have bought things
from him."
…….. ……..
22. Service tax purports to impose tax on services on two
grounds (1) service provided to a consumer and (2) service
provided to a service provider. Service provided in respect
of the matters envisaged under clause (19) of Section 65 of
the Act must be construed strictly. Before a tax is found to
be leviable, it must come within the domain of legitimate
business and/or trade.”
65. In IndusInd Communication Ltd. Vs. City Cable and others, Petition
No. 67 (C) of 2008 disposed of on 27.7.2011, it was held:-Page 32 of 97
“89. Yet again the definition of the word `service provider‟
contained in Regulation 2(n) of the Regulations is not an
exhaustive one. It must be given a meaning which fits in the
changing scenario on the nature of the business.”
It is thus, not uncommon that a service provider would render service
to another service provider.
66. In certain cases, thus, even the dictionary meaning can be relied upon
for construction of the interpretation clause. [See GVK Industries Ltd and
Anr vs. Income Tax Officer and Anr. (2011) 4 SCC 36].
67. If the word `service provider‟ is vague, it is possible to take recourse
to different rules of interpretation including the rule of purposive
construction.
The object of the statute being clear, the jurisdiction of this Tribunal
must be held to be of wide amplitude.
The term `service provider‟ includes `licensee‟.
If we are right in our conclusion that a registrant under ISP Category I
Registration Certificate is also a licensee, the logical corollary thereof would
be that it would come within the purview of the term `Service Provider‟.
If that be so, both the parties hereto being licensees would come
within the purview of the term `Service Provider‟ and thus, a dispute Page 33 of 97
between them as regards supply of `telegraph‟ would be amenable to the
jurisdiction of this Tribunal as envisaged under Section 14 of the 1997 Act.
68. IndusIndus Media (Supra) this Tribunal negatived the contention of
the Respondent therein that they were not service providers holding that
they having been in possession of the headends of the Petitioners and being
in control and management thereof, they were distributors of TV Channels,
although they were not the owners thereof. A dispute between the owner of
the equipments and an agent in management and control thereof was, thus,
held to be amenable to the jurisdiction of the Tribunal.
The history of the legislation can also be taken into consideration for
the purpose of construction of statute [See Fuerst Day Lawson Ltd vs Jindal
Exports Ltd. (2011) 8 SCC 333].
69. The 1885 Act, therefore, provides for a regulatory regime. The
jurisdiction of this Tribunal so far as it‟s jurisdiction with regard to
adjudication of dispute is concerned would remain the same as was vested
in TRAI, say much more. In other words, a dispute between two licensees or
service providers would be amenable to the jurisdiction of this Tribunal, if
they render services in relation to or in connection with „telecommunication
services‟.Page 34 of 97
70. In this case ISP Category I license is also granted by the DoT under
the 1885 Act. It‟s activities also pertain to „telecommunication services‟.
The Act permits the TRAI to make Regulations and to exercise its
functions over the entire regulatory field, including `Passive Infrastructure‟.
71. Recently the TRAI has issued a consultation paper involving `Passive
Infrastructure‟ (See Consultation Paper on Issues related to
Telecommunications Infrastructure Policy dated 14.1.2011).
It, therefore, comes within the purview of the regulatory regime.
Purposive Construction – Rules of
72. Keeping in view the recent decision of the Supreme Court of India in
the case of Centre for Public Interest Litigation (supra), it may not be
necessary for us to notice the history as also the developments in the field.
The Doctrine of Purposive Interpretation may be resorted to for the
purpose of ascertaining the purpose and object for which said acts were
enacted.
73. Francis Bennion in his book on Statutory Interpretation 5th Edition at
page 945, states the law thus:-Page 35 of 97
“….Legislation is still about remedying what is thought to
be a defect in the law. Even the most „progressive‟
legislator, concerned to implement some wholly novel
concept of social justice, would be constrained to admit that
if the existing law accommodated the notion there be no
need to change it. No legal need that is. Legislation
possesses a propaganda value also.
Contrast with literal construction - Although the term
`purposive construction‟ is not new, its entry into fashion
betokens a swing by the appellate courts away from literal
construction. Lord Diplock said in 1975 :
`If one looks back to the actual decisions of [the
House of Lords] on questions of statutory
construction over the last 30 years one cannot fail
to be struck by the evidence of a trend away from
the purely literal towards the purpose construction
of statutory provisions.‟
The matter was summed up by Lord Diplock in this way:
“…I am not reluctant to adopt a purposive
construction where to apply the literal meaning
of the legislative language use would lead to
results which would clearly defeat the
purposes of the Act. But in doing so the task on
which a court of justice is engaged remains one
of construction, even where this involves
reading into the Act words which are not
expressly included in it. Kammins Ballrooms Co
Ltd V Zenith Investments (Torquay) Ltd [1971]
AC 850 provides an instance of this; but in that
case the three conditions that must be fulfilled
in order to justify this course were satisfied.
First, it was possible to determine from a
consideration of the provisions of the Act read
as a whole precisely what the mischief was
that it was the purpose of the Act to remedy;
secondly, it was apparent that the draftsman
and Parliament had by inadvertence
overlooked, and so omitted to deal with, an
eventuality that required to be dealt with if the Page 36 of 97
purpose of the Act was to be achieved; and
thirdly, it was possible to state with certainty
what were the additional words that would
have been inserted by the draftsman and
approved by parliament had their attention
been drawn to the omission before the Bill
passed into law. Unless this third condition is
fulfilled any attempt by a court of justice to
repair the omission in the Act cannot be
justified as an exercise of its jurisdiction to
determine what is the meaning of a written law
which parliament has passed.‟
“Lord Diplock‟s third point is, with respect,
erroneous. In an earlier case the House of
Lords had adopted a purposive-and-strained
construction while expressly ruling out any
need to formulate the missing words. The truth
is that it is almost invariably possible to
formulate the same legislative proposition in
numerous different ways. All drafters know
that no two of them, given a set of instructions
will produce a Bill in identical wording, or
anything like it.”
74. In Grid Corporation of Orissa Limited v. Eastern Metals and Ferro
Alloys, (2011) 11 SCC 334 at page 342 it is stated as under:
“25. This takes us to the correct interpretation of Clause
9.1. The golden rule of interpretation is that the words of a
statute have to be read and understood in their natural,
ordinary and popular sense. Where however the words
used are capable of bearing two or more constructions, it is
necessary to adopt purposive construction, to identify the
construction to be preferred, by posing the following
questions: (i) What is the purpose for which the provision is
made? (ii) What was the position before making the
provision? (iii) Whether any of the constructions proposed
would lead to an absurd result or would render any part of
the provision redundant? (iv) Which of the interpretations
will advance the object of the provision? The answers to
these questions will enable the court to identify the
purposive interpretation to be preferred while excluding
others. Such an exercise involving ascertainment of the Page 37 of 97
object of the provision and choosing the interpretation that
will advance the object of the provision can be undertaken,
only where the language of the provision is capable of more
than one construction. (See Bengal Immunity Co. Ltd. v.
State of Bihar [ AIR 1955 SC 661 : (1995) 2 SCR 603] and
Kanai Lal Sur v. Paramnidhi Sadhukhan [ AIR 1957 SC 907
: 1958 SCR 360] and generally Justice G.P. Singh's
Principles of Statutory Interpretation, 12th Edn., published
by Lexis Nexis, pp. 124 to 131, dealing with the rule in
Heydon case [ (1584) 3 Co Rep 7a : 76 ER 637] .)”
75. In DLF Universal Limited v. Director, Town and Country Planning
Department, Haryana, (2010) 14 SCC 1 it was stated:
“13. It is a settled principle in law that a contract is
interpreted according to its purpose. The purpose of a
contract is the interests, objectives, values, policy that the
contract is designed to actualise. It comprises the joint
intent of the parties. Every such contract expresses the
autonomy of the contractual parties' private will. It creates
reasonable, legally protected expectations between the
parties and reliance on its results. Consistent with the
character of purposive interpretation, the court is required
to determine the ultimate purpose of a contract primarily by
the joint intent of the parties at the time the contract so
formed. It is not the intent of a single party; it is the joint
intent of both the parties and the joint intent of the parties
is to be discovered from the entirety of the contract and the
circumstances surrounding its formation.”
{See Regional Provident Fund Commissioner Vs The Hooghly Mills Co.
Ltd. [(2012) 2 SCC 489]}.
It is on the said premise only the purpose and object for which the Act
has been enacted has to be considered.Page 38 of 97
What was the underlying object of the 1997 Act?
76. As we see it, the Parliament intended to create a forum where
disputes relating to or leading to `Telecommunication Services‟ would be
adjudicated.
In the matter of rendition of telecommunication services or
Broadcasting Services, there are many stakeholders.
The dispute between two stakeholders; in some cases both the
disputants may be belonging to the same category e.g. a Broadcaster and a
Content Aggregator, and thus a „Broadcaster‟ are required to be adjudicated.
77. An old Act would have gaps. Even otherwise with the passage of time,
a new meaning may have to be assigned. The Parliament might not have
the occasion to consider many aspect of the matter. Many new scientific
discoveries might have been made. New technologies might have come into
being. Creative interpretation must take into consideration the march in
technology.
With the passage of time the business model may change. New
stakeholders would join the business. New type of agreements and
commercial arrangements may be entered into.Page 39 of 97
78. Creative interpretation by a court of law upon taking into
consideration a large number of factors, thus, becomes necessary when a
gap is found in the statute.
79. In IndusInd Media & Communications Ltd. (supra) such a gap was
found.
In that judgment it was stated:
“Not only the MoU but also the conduct of the parties goes
to show that the responsibilities and functions of
respondent No.1 was not that of a mere money collecting
agent. Had that been so, it could not have rendered any
other services to the petitioner or the subscribers. It could
not have telecast its own films. It would not have any
occasion to take over the network of the petitioner.
A contention has also been noticed in the accompanying
judgement that most of the cable operators have rejoined
the network of the petitioner which clearly implies that
before rejoining the networks of petitioner, may be for a
limited period, the local cable operators were having
supply of signals of the channels of different broadcasters
from a head end which was under the complete control of
the respondent No.1.
Hijacking of the network of the petitioner was the cause of
action for the first set of petitions. If the first set of petitions
were maintainable against the respondent, there is
absolutely no reason as to why the second set of petitions Page 40 of 97
would not be maintainable. The function of respondent
No.1 in each of these matters as service providers will
have to be determined having regard to the factual
matrixes involved, the contentions raised and the findings
of facts arrived thereupon. Once the respondents are found
to be in control and management of the networks in
question, apart from other findings, by itself would lead to
a conclusion that they were service providers for the
purpose of determining the issues involved herein.”
80. Keeping in view the fact that broadcasting services were notified to
be „telecommunication services‟, this Tribunal in the case of Total Telefilms
Vs. Prasar Bharati (Petition No. 183 (c) of 2008 decided on 15.12.2008)
categorically held that a literal meaning to the said term cannot be given in
the context of broadcasting services.
It was also so opined in the case of Star India Vs. BSNL which dealt
with a case of convergence.
81. It is therefore, evident that keeping in view the creation of march in
the technology as also the fact that the regulator although in some cases
made attempts but could not fill the gaps the purpose and object for which
the 1997 Act was enacted must be given to by „judge made law‟. The
judiciary will have to step in by giving proper and meaning to the relevant
words employed in a statute. A statute must be construed so that it
remains workable.Page 41 of 97
82. A purposive interpretation in the context of the Regulatory regime
the Parliament intended to bring about, in our opinion, may be given effect
to by assigning expansive meaning to the words in question. Services to the
customers, therefore, in our opinion would mean the service ultimately
reaching the customer and all the intermediate processes involved therein.
Application of the 1997 Act
83. If any dispute between the licensor and the service provider is a
dispute within the meaning of the provisions of Section 14 of the Act, there
is absolutely no reason as to why the dispute between a licensee and a
licensee (in this case, the Respondent) being a person who has been
granted a license (ISP-I Registrant) and who provides services to a licensee,
which is to the ultimate benefit of the customer, would not come within the
purview thereof.
84. Submission of Mr. Maninder Singh that in the registration
certificate the word `assets‟ has been used, and not the „apparatus‟, in our
considered view, is of not much significance. The said words would include
apparatus and telegraph which would otherwise come within the purview
thereof.
A stakeholder may outsource its activities of telecommunication
services. Page 42 of 97
85. Jurisdiction of the Civil Courts are barred. A litigant may approach
the Civil Court to be ultimately informed that it had no jurisdiction.
The purpose of creating a specialized tribunal to deal with all kinds of
disputes between two providers of service should not be allowed to be
defeated by creating uncertain situations.
86. Such uncertainty will, in our opinion, hamper the growth of the
industry. It may adversely affect the national economy.
Service providers and the consumers whose interests are to be
protected in terms of the `Preamble‟ to the 1997 Act would be the worst
sufferers.
Object of creating specialized forums shall also be defeated, it being
part of „Structural Judicial Reform‟.
With this preface, the jurisdictional question raised by the
Respondent will have to be determined.
Creation of an Expert Tribunal - The Purpose of
87. A specialized `expert Tribunal‟ is created for certain purposes Whereas
Tribunalization of the judiciary is looked down upon, the Supreme Court of Page 43 of 97
India recently in R. Gandhi vs. President, Madras Bar Association, reported
in (2010) 11 SCC 1, with regard to the constitution of the National Taxation
Tribunal, held as under:
“…While one can understand the presence of the members of
the civil services being technical members in Administrative
Tribunals, or Military Officers being members of the Armed
Forces Tribunals, or electrical engineers being members of
the Electricity Appellate Tribunal, or telecom engineers being
members of TDSAT, we find no logic in members of the
general civil services being members of the Company Law
Tribunals.”
The Constitution Bench of the Supreme Court made a distinction
between the `company law‟ matters and other matters, stating:-
“The practice of having experts as technical members is
suited to areas which required the assistance of professional
experts, qualified in medicine, engineering and architecture
etc.”
It was stated :-
“(iii) A “technical member” presupposes an experience in the
field to which the Tribunal relates. A member of the Indian
Company Law Service who has worked with Accounts Branch
or officers in other departments who might have incidentally
dealt with some aspect of company law cannot be considered
as “experts” qualified to be appointed as technical members.
Therefore clauses (a) and (b) of sub-section (3) are not valid.
(iv) The first part of clause (f) of sub-section (3) providing that
any person having special knowledge or professional
experience of 20 years in science, technology, economics,
banking, industry could be considered to be persons with Page 44 of 97
expertise in company law, for being appointed as technical
members in the Company Law Tribunal, is invalid.
(v) Persons having ability, integrity, standing and special
knowledge and professional experience of not less than
fifteen years in industrial finance, industrial management,
industrial reconstruction, investment and accountancy, may
however be considered as persons having expertise in
rehabilitation/revival of companies and therefore, eligible for
being considered for appointment as technical members.”
88. TDSAT, in several decisions of the Supreme Court of India has been
referred to as an `Expert Tribunal‟. If that be so, any question which
requires not only determination of any dispute but also interpretation of
contracts involving technical questions and the matters coming within the
preview of the regulatory regime will attract the jurisdiction of this Tribunal.
(See Clear Media vs. Prasar Bharti Petition No.174 (C)/2010 disposed of on
21.4.2011).
It is in the aforementioned context, we may also notice that in the
Leggatt report and a White paper, which preceded the 2007 Judicial
Reforms in the United Kingdom, noticed that there are, of course,
advantages and disadvantages of the Tribunal, but it is beyond any doubt or
dispute that expertise of a Tribunal is an accompanied advantage.
89. Tribunals in the changed context become essential part of justice
delivery system between a citizen and another as also a citizen and State in
a wide variety of context. They are necessary for upholding the Rule of Law.Page 45 of 97
90. It was so held in Gillies vs. Secretary of State for Work and Pension
reported in (2006) 1 WLR 781 :
“36. Tribunals were once regarded with the deepest of
suspicion but they are now an essential part of our justice
system. They are mostly here to secure justice between
citizen and state in a wide variety of contexts, the most
numerically important of which is entitlement to the
financial benefits provided by the welfare state. Since the
Report of the Donoughmore Committee on Ministers‟ Powers
(Cmd 4060, 1932), it has been recognised that tribunals
can have important advantages over courts of law. These
are „cheapness, accessibility, freedom from technicality,
expedition and expert knowledge of their particular
subject‟: see the Report of the Franks Committee on
Administrative Tribunals and Enquiries (Cmnd 218, 1957,
para 38). The Report of Sir Andrew Leggatt‟s Review of
Tribunals, Tribunals for Users, One System, One Service
(2001, paras 1.11 to 1.13) suggests three tests of whether
tribunals rather than courts should decide cases. The first
is participation: that users should be able to prepare and
present their own cases effectively. The third is the need
for expertise in the area of law involved: users should not
have to explain to the tribunal what the law is. The second
is the need for special expertise in the subject matter of the
dispute:
Where the civil courts require expert opinion on the facts of
the case, they generally rely on the evidence produced by
the parties – increasingly jointly – or on a court appointed
assessor. Tribunals offer a different opportunity, by
permitting decisions to be reached by a panel of people
with a range of qualifications and expertise. … users
clearly feel that the greater expertise makes for better
decisions.
Expertise on the tribunal not only improves decisionmaking and reduces the need for outside expertise; it also
thereby increases the accessibility and user-friendliness of
the proceedings”
91. It was also observed:Page 46 of 97
"40. The relevant facts of tribunal life include the great
advantage, both to its users and to its decision-making, of
being able to call upon the people with the greatest expertise
in the subject matter of the claim. Given the wide variety of
disabilities which come before the Disability Appeal
Tribunals, it would not be practicable to have a specialist in
the particular disability involved in the particular case. The
greatest expertise in assessing the claimant's condition and
applying the statutory criteria to it is likely to be held by
those doctors who are experienced in making these
assessments at the point of claim. To have such expertise
available on the tribunal can only be an advantage to it."
H.W.R. Wade & C.F. Forsyth also refer to the advantages of tribunals
in their Administrative Law, (10th Edn., at pp. 773-74).
92. It was stated:
“The social legislation of the twentieth century demanded
tribunals for purely administrative reasons: they could offer
speedier, cheaper and more accessible justice, essential for
the administration of welfare schemes involving large
numbers of small claims. The process of the courts of law is
elaborate, slow and costly. Its defects are those of its
merits, for the object is to provide the highest standard of
justice; generally speaking, the public wants the best
possible article, and is prepared to pay for it. But in
administering social services the aim is different. The object
is not the best article at any price but the best article that is
consistent with efficient administration. Disputes must be
disposed of quickly and cheaply, for the benefit of the
public purse as well as for that of the claimant. Thus when
in 1946 workmen's compensation claims were removed
from the courts and brought within the tribunal system
much unproductive and expensive litigation, particularly on
whether an accident occurred in the course of employment,
came to an end. The whole system is based on
compromise, and it is from the dilemma of weighing quality
against convenience that many of its problems arise.
An accompanying advantage is that of expertise.
Qualified surveyors sit on the Lands Tribunal and experts Page 47 of 97
in tax law sit as Special Commissioners of Income Tax.
Specialised tribunals can deal both more expertly and more
rapidly with special classes of cases, whereas in the High
Court counsel may take a day or more to explain to the
Judge how some statutory scheme is designed to operate.
Even without technical expertise, a specialised tribunal
quickly builds up expertise in its own field. Where there is
a continuous flow of claims of a particular class, there is
every advantage in a specialised jurisdiction.”
(Emphasis Added)
In this Tribunal apart from the party in person, several
professional can represent the litigant. Lawyers alone do not have the
monopoly to represent the litigants.
93. S.A De‟Smith in his celebrated book of Judicial Review of
Administrative Action 6th Ed. At page 50, stated:
“In the design of an administrative justice system, a
tribunal may be preferred to an ordinary court because its
members have specialized knowledge of the subject
matter, because it will be more formal in its trapping and
procedure because it may be better at finding facts,
applying flexible standards and exercising discretionary
powers, and because it may be cheaper, more accessible
and more expeditious than the High Court.”
Early resolution of disputes is also one of the advantages which can
be attributed to an Expert Tribunal.
The 1997 Act provides that all such disputes should be disposed of
within a period of three months. Page 48 of 97
94. When a dispute is raised before the Courts of „Judicial Review‟, its
jurisdiction would be limited unlike that of the Tribunal, which exercises
original and appellate jurisdiction.
Even in UK, as alternative to judicial review, specialized Tribunals
have been constituted.
Competition Appellate Tribunal has been hearing appeals from the
decision of the Telecom Regulator (OFCOM).
95. In some case, the Tribunal has been held to be competent to act as a
primary decision maker.
Nigel Pleming QC in an article of Judicial Review of Regulators
published in Effective Judicial Review – A Cornerstone of Good Governance,
has stated that as an alternative to judicial review, a number of specialized
tribunals have been created.
96. There is another aspect of the matter which may also not be lost
sight of. Access to justice is not only a human right but also a fundamental
right. With a view to perform its constitutional obligation the States are
obligated to create forums which would be capable of rendering justice to
the disputants vis-a -vis their grievances. Page 49 of 97
Failure to provide such forums would be violative of the constitutional
scheme of separation of power as also the constitutional policy.
97. We may notice that the European Court of Human Rights in Hatton
vs. United Kingdom 15 BHRC 259 held that failure on the part of the State
to provide a forum of judicial review which did not interfere with a policy
decision infringing the right of privacy of a citizen is violative of the
Human Rights Act, 1998 and thus, the State must pay damages to the
disputants.
98. The jurisdiction of an original court vis-à-vis the court exercising the
power of judicial review is also required to be taken into consideration. The
jurisdiction of a court exercising original or appellate power indisputably
would be wider than judicial review, which ordinarily is confined to the
decision making process and not the merit of the decision.
A person who has a grievance is entitled to approach a forum.
A forum providing for an appellate power would undoubtedly be
preferable to the one providing for judicial review only.
99. A distinction must also be borne in mind between any
Tribunals which do not have the adjudicatory power and those who
have. This Tribunal is a „Court‟ being entitled to execute its decree. It Page 50 of 97
has a limited power of contempt. The jurisdiction of the ordinary civil
court is barred. Independence and impartiality of this Tribunal even
having regard to the mode of appointments of its Members is beyond
any doubt or dispute.
Section 14 of the Act uses the expression „any dispute‟. The
word „any‟ and „dispute‟ are of great significance.
100. In IndusInd Media & Communications Ltd. (Supra), it has been
held:-
“103. We may also notice that the Supreme Court of India,
in Shri Balaganesan Metals v. M.N. Shanmugham Chetty,
reported in 1987 : (1987) 2 SCC 707 opined that a statute
should not be so construed to render any provision otiose.
104. It was further held that:
The word "any" has the following meaning:
some; one of many; an indefinite number. One
indiscriminately or whatever kind or quantity.
Word 'any' has a diversity of meaning and may be
employed to indicate 'all' or 'every' as well as 'some' or 'one'
and its meaning in a given statute depends upon the
context and the subject matter of the statute.
It is often synonymous with 'either', 'every' or 'all'. Its
generality may be restricted by the context;" (Black's Law
Dictionary, 5th Edn.)
105. The word "Any" and "Dispute" are defined in Stroud's
Judicial Dictionary of Words and Phrases, 16th Ed., at
pages 135 and 707 as follows:Page 51 of 97
ANY. "Any" is not confined to a plural sense (Eaton v. Lyon,
3 Ves.694).
"Any" is a word which excludes limitation or qualification
(per Fry, L.J., Duck v. Bates, 12 Q.B.D. 79); "As wide as
possible" (per Chitty, J., Beckett v. Sutton, 51 L.J. Ch. 433)
DISPUTE. A Clause providing for an arbitration "should any
dispute arise", includes disputes of law as well as of fact
(Forwood v. Watney, 49 L.J.Q.B. 447); and also a
nonfeasance, e.g. the withholding a certificate (Re
Hohenzollern Co., 54 L.T. 596)
106. Another aspect of the matter must also be considered,
namely when a question arises on true interpretation or
construction of Regulations, this Tribunal would have
jurisdiction.
107. It was so held recently in Clear Media India Pvt Ltd v.
PrasarBharti, being Petition No 174(C) of 2010 disposed of
on 21st April, 2011.”
101. Recently in Vodafone Mobile Services Ltd. & Ors. vs. Union of India
(DoT) this Tribunal wherein again the jurisdiction of this Tribunal was in
question by an order dated 20.1.2012, held:
“26. Interpretation of a condition of license as also the
grievance of a licensee that a demand has wrongly been
raised having regard to the definition of `adjusted gross
revenue‟ if found to be maintainable, we do not see any
reason why interpretation of conditions of licence, so far as
the same relates to the activities of the licensor are concerned,
shall be outside the jurisdiction of this Tribunal.
27. Mr. Chandhiok, learned Additional Solicitor General has
also relied upon an unreported order of the Supreme Court of
India in M/s Tata Tele Services Ltd vs UOI, Civil Appeal
No.4878/2011 disposed of on 19.8.2011 which is in the
following terms :-Page 52 of 97
“Having heard learned senior advocates on both sides,
we are of the view that, in substance, the matter
concerns impugned allocation of spectrum. This matter,
in our view, can only be challenged by way of judicial
review, as held in our earlier judgment in PTC India
Limited Vs Central Electricity Regulatory Commission ,
reported in 2010 (4) SCC 603. In the circumstances, we
dismiss this civil appeal with a rider, namely, if so
advised, the appellants may adopt appropriate
proceedings in accordance with law and if they do so,
then the matter will be decided uninfluenced by
observations of TDSAT, if any, on the merits of the
case.
No order as to costs”
28. We may, however, place on record that in PTC India Ltd.
vs. Central Electricity Regulatory Commission, through
Secretary, (2010) 4 SCC 603 itself it was observed as under :-
“93. For the aforesaid reasons, we answer the question
raised in the reference as follows:
The Appellate Tribunal for Electricity has no jurisdiction
to decide the validity of the Regulations framed by the
Central Electricity Regulatory Commission under Section
178 of the Electricity Act, 2003. The validity of the
Regulations may, however, be challenged by seeking
judicial review under Article 226 of the Constitution of
India.
94. Our summary of findings and answer to the
reference are with reference to the provisions of the
Electricity Act, 2003. They shall not be construed as a
general principle of law to be applied to Appellate
Tribunals vis-à-vis Regulatory Commissions under other
enactments. In particular, we make it clear that the
decision may not be taken as expression of any view in
regard to the powers of the Securities Appellate Tribunal
vis-à-vis Securities and Exchange Board of India under
the Securities and Exchange Board of India Act, 1992 or
with reference to the Telecom Disputes Settlement and
Appellate Tribunal vis-à-vis Telecom Regulatory Page 53 of 97
Authority of India under the Telecom Regulatory
Authority of India Act, 1997.”
We, furthermore, are not aware of the facts involved in
the said appeal.
Prima facie, it appears to us that different contentions
are being raised by the respondent herein in different
cases.”
102. COAI (supra) was endorsed in UOI vs. Tata Teleservices,
Maharashtra Ltd. (2007) 7 SCC 517. It even went to the extent of holding
that for the purpose of ascertaining as to who would be a `licensee‟ within
the meaning of Section 14 of the 1997 Act, even its definition in the notice
inviting tender would be attracted, stating:
“21. According to the learned Additional Solicitor General
appearing for the appellant, such a dispute would also come
within the purview of Section 14 of the Act going by the
definition of licensee and the meaning given to it in the notice
inviting tenders. The argument of the learned Senior Counsel
on behalf of the Respondent is that the expressions “licensor”
and “licensee” are defined in the Act and the Respondent had
not become a licensee and the appellant had not become a
licensor since the agreement was never entered into between
the parties for providing telecom services in the Karnataka
Telecom Circle and the attempt to rope in an intending
licensee to whom a letter of intent has been issued or the
entering into a contract is proposed, cannot be countenanced
since the Respondent has not become a licensee within the
meaning of the Act and consequently this was not a dispute
that came within the purview of Section 14(1) of the Act.
22. We have already indicated that a specialised tribunal has
been constituted for the purpose of dealing with specialised
matters and disputes arising out of licences granted under the
Act. We therefore do not think that there is any reason to
restrict the jurisdiction of the tribunal so constituted by Page 54 of 97
keeping out of its purview a person whose offer has been
accepted and to whom a letter of intent is issued by the
Government and who had even accepted that letter of intent.
Any breach or alleged breach of obligation arising after
acceptance of the offer made in response to a notice inviting
tender, would also normally come within the purview of a
dispute that is liable to be settled by the specialised tribunal.
23 We see no reason to restrict the expressions “licensor” or
“licensee” occurring in Section 14(a)(i) of the Act and to exclude
a person like the Respondent who had been given a letter of
intent regarding the Karnataka Circle, who had accepted the
letter of intent but was trying to negotiate some further terms
of common interest before a formal contract was entered into
and the work was to be started. To exclude disputes arising
between the parties thereafter on the failure of the contract to
go through, does not appear to be warranted or justified
considering the purpose for which TDSAT has been established
and the object sought to be achieved by the creation of a
specialised tribunal.”
103. The dispute between the parties was directed to be entertained
although a concluded contract was yet to be arrived at and a UASL license
was to be granted. A potential license, thus, has been held to be a licensee
for the purpose of Section 14 of the 1997 Act.
104. We are not unmindful of the fact that recently the Supreme
Court of India in UOI & Anr. vs. Association of Unified Telecom Service
Providers of India reported in (2011) 10 SCC 543, invoking the principle of
`Estoppel‟ held that :-
“47. A dispute between a licensor and a licensee referred to
in Section 14(a)(i) of the TRAI Act, therefore, is a dispute after
a person has been granted a licence by the Central
Government or the Telegraph Authority under sub-section (1) Page 55 of 97
of Section 4 of the Telegraph Act and has become a licensee
and not a dispute before a person becomes a licensee under
the proviso to sub-section (1) of Section 4 of the Telegraph Act.
In other words, the Tribunal can adjudicate the dispute
between a licensor and a licensee only after a person had
entered into a licence agreement and become a licensee and
the word “any” in Section 14(a) of the TRAI Act cannot widen
the jurisdiction of the Tribunal to decide a dispute between a
licensor and a person who had not become a licensee. The
result is that the Tribunal has no jurisdiction to decide upon
the validity of the terms and conditions incorporated in the
licence of a service provider, but it will have the jurisdiction to
decide “any” dispute between the licensor and the licensee on
the interpretation of the terms and conditions of the licence.”
It sought to distinguish Tata Tele Services (supra), stating:-
“54. In Union of India v. Tata Teleservices (Mahrashtra)
Ltd. (supra) cited by Mr. Srinivasan, a letter of intent was
issued to Tata Teleservices and this was accepted by Tata
Teleservices but ultimately the contract did not come into
being and the license was not actually granted. The Union of
India suffered a considerable loss because Tata Teleservices
had walked out of the obligation undertaken by the
acceptance of the letter of intent. The Additional Solicitor
General appearing for the Union of India submitted that such
a dispute would also come within the purview of Section 14 of
the TRAI Act, going by the definition of licensee and the
meaning given to it in the notice inviting tenders. The Tribunal
held that expression “licensor” or “licensee” occurring in
Section 14 (a) (i) of the TRAI Act would not exclude a person
who had been given a letter of intent and who had accepted Page 56 of 97
the letter of intent but was trying to negotiate some further
terms of common interest before a formal contract was entered
into and the work was to be started. This was thus a case
where this Court treated a person who had accepted the letter
of intent of the licensor as a licensee, although a formal
contract had not entered into. In this case this Court has not
held that a licensee could dispute the validity of a term or
condition which was incorporated in the license agreement.”
105. In UOI vs. Millennium Mumbai Broadcast (P) Ltd. reported in (2006)
10 SCC 510, the Apex Court in a case where the broadcasting license was
sought to be revoked opined that construction of the terms and conditions
of license would be within the exclusive jurisdiction of this Tribunal.
It was held that this Tribunal has a wide power.
106. In the case of Hotel and Restaurant Association and Anr. vs. Star
India Pvt. Ltd and Ors. reported in AIR 2007 SC 1168, the question which
arose for consideration was as to whether providing TV sets in the rooms
occupied by the guests of a hotel would attract the definition of `consumer‟
contained in the Consumer Protection Act, 1986 vis-à-vis Cable Television
Networks (Regulation) Act (7 of 1995) and the 1997 Act. It was held :-
“38. The members of Appellants Associations stricto sensu do
not retransmit the signals to any other person. It merely
makes the services available to its own guests, which in other
words, would mean to itself. If the amenities provided for by
the management as a subscriber under TRAI Act is Page 57 of 97
inseparable from the other amenities provided to a boarder of
a hotel, it remains a subscriber by reason of making the
services available in each of the rooms of the hotel. It is not
transmitting the signals of cable television network to any
other persons. TRAI Act and various orders made thereunder
are required to be read conjointly with a view to give
harmonious and purposive construction thereto.
39. An attempt has been made by Mr. Desai to contend that
the 1986 Act is a cognate legislation. Section 2(2) of TRAI Act
provides that words and expression used and not defined in
the said Act but defined in Indian Telegraph Act, 1885 or the
Indian Wireless Telegraphy Act, 1933 shall have the
meanings respectively assigned to them in those Acts. Thus,
meaning of only such words which are not defined under TRAI
Act but defined under those Acts could be taken into
consideration. It is furthermore well known that the definition
of a term in one statute cannot be used as a guide for
construction of a same term in another statute particularly in a
case where statutes have been enacted for different
purposes.”
A term defined in a statute should be interpreted keeping in view the
provisions of a cognate legislation, The Consumer Protection Act was held
to be not a cognate legislation, stating :-
107. In MSCO. Pvt. Ltd. v. Union of India and Ors. [(1985) 1 SCC 51] ,
this Court held:
“4. The expression 'industry' has many meanings.
It means 'skill', 'ingenuity', 'dexterity', 'diligence',
'systematic work or labour', 'habitual employment in
the productive arts', 'manufacturing establishment'
ect. But while construing a word which occurs in a
statute or a statutory instrument in the absence of
any definition in that very document it must be given
the same meaning which it receives in ordinary
parlance or understood in the sense in which people
conversant with the subject matter of the statute or
statutory instrument understand it. It is hazardous to
interpret a word in accordance with its definition in Page 58 of 97
another statute or statutory instrument and more so
when such statute or statutory instrument is not
dealing with any cognate subject....
46. TRAI Act and the 1986 Act are not in pari materia.
They have been enacted for different purposes and in
that view of the matter even Sirsilk Ltd. v. Textiles
Committee and Ors : AIR 1989 SC 317 would have no
application in the instant case.”
108. We may also notice the following observations:-
“53. TRAI exercises a broad jurisdiction. Its jurisdiction is not
only to fix tariff but also laying down terms and conditions for
providing services. Prima facie, it can fix norms and the mode
and manner in which a consumer would get the services.
54. The role of a regulator may be varied. A regulation may
provide for cost, supply of service on non-discriminatory basis,
the mode and manner of supply making provisions for fair
competition providing for lavel playing field, protection of
consumers interest, prevention of monopoly. The services to be
provided for through the cable operators are also recognized.
While making the regulations, several factors are, thus
required to be taken into account. The interest of one of the
players in the field would not be of taken into consideration
throwing the interest of others to the wind.”
We have referred to the aforementioned decisions of the Apex Court
only to demonstrate that broad parameters as regards the jurisdiction of
this Tribunal have been laid down therein.
109. Significantly, the 1997 Act refers to the Telegraph Act, 1885. The
words which are not defined in the 1997 Act will have the same meaning as Page 59 of 97
defined therein, Section 38 moreover provides that the jurisdiction of the
authority under the 1885 Act and the 1933 Act shall not be affected in
relation to any area falling within the jurisdiction of such authority.
The jurisdictional aspect must be considered having regard to the
aforementioned broad parameters.
The consideration in this behalf cannot be restricted.
Question of jurisdiction and the Precedents
110. The issue relating to Jurisdiction of this Tribunal came up for
consideration before the Supreme Court of India in a large number of cases.
We would, however, notice a few of them.
What is the nature and extent of jurisdiction of this Tribunal, albeit in
the context of its appellate jurisdiction came up for consideration before the
Supreme Court of India in COAI and Ors vs. UOI reported in (2003) 3 SCC
186.
In that case this Tribunal proceeded on the basis that its appellate
jurisdiction is akin to the power of judicial review.
111. In COAI (supra) two different opinions were rendered. One of the
opinion contained more detailed reasons. It was opined that the rule of Page 60 of 97
limited jurisdiction as regards different expert bodies like the TRAI applies
only in respect of reviewing court and not an expert Tribunal. Whereas an
appellate court would be entitled to enter into the merit of the matter,
broadly speaking the review court would keep its jurisdiction confined to the
decision making process.
It was held:-
“31 The rule as regard deference to expert bodies applies
only in respect of a reviewing court and not to an expert
tribunal. It may not be the function of a court exercising power
of judicial review to act as a supermodel as has been stated
in Administrative Law by Bernard Schwartz, 3rd Edn., in para
10.1, at p. 625; but the same would not be a case where an
expert tribunal has been constituted only with a view to
determine the correctness of an order passed by another
expert body. The remedy under Section 14 of the Act is not a
supervisory one. TDSAT's jurisdiction is not akin to a court
issuing a writ of certiorari. The Tribunal although is not a
court, it has all the trappings of a court. Its functions are
judicial.”
32 In Jurisdiction and Illegality by Amnon Rubinstein, a
judicial power in contrast to the reviewing power is stated
thus:
“A judicial power, on the other hand, denotes a
process in which ascertainable legal rules are
applied and which, 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.”
33. 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 Page 61 of 97
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.
34. 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 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 stated, the jurisdiction of the Tribunal is not
circumscribed in any manner whatsoever.”
112. It was furthermore observed :-
“37. There cannot be any doubt whatsoever that when
jurisdiction upon a court or a tribunal is conferred by a
statute, the same has to be construed in terms thereof and not
otherwise. The power of judicial review of this Court as also of
the High Court, however, stand on a different footing. The
power of this Court as also the High Court although is of wide
amplitude, certain restrictions by way of self-discipline are
imposed. Ordinarily, the power of judicial review can be
exercised only when illegality, irrationality or impropriety is
found in the decision-making process of the authority.”
113. It was furthermore noticed that the scope of judicial review would also
vary from case to case.
In a given case, an entirely independent head of judicial review as for
example the doctrine of `proportionality‟ may be applied in stead and in
place of only `Illegality, Irrationality and Procedural Impropriety‟ tests. Page 62 of 97
Both the appellate as also the reviewing court may interfere when
there is a misdirection in law.
The ratio laid down in COAI (supra) was considered by this Tribunal
in Aircel Digilink vs. Union of India & Anr. 2005 (3) CLJ page 461 .
The question which arose for consideration therein was as to whether
the arbitration clause contained in an agreement between the parties can be
invoked only by the parties to an agreement in the event a dispute between
them arises, and it was decided that this Tribunal will have jurisdiction in
relation thereto.
114. D.P. Wadhwa, J. Chairperson, inter alia, opined that the jurisdiction
of an Arbitrator could be barred by a statute either expressly or by
necessary implication.
115. Noticing that the TRAI Act is a later Act vis a vis the Arbitration and
Conciliation Act, 1996, it was held:
“17.1 The Act is not only a later legislation but is also a
special legislation aiming to protect the interests of the service
providers and the consumers of the telecom sector and to
promote and ensure the orderly growth of telecom sector.
Speedier adjudication of disputes by a specialised Tribunal
having requisite knowledge and expertise of the sector is
necessary for the growth of the sector in the long run.
Therefore, to uphold the fabric of the Act, the jurisdiction
vested in the TDSAT is and ought to be exclusive, which will
also be in consonance with public policy.Page 63 of 97
18. It is a matter of public policy laid in the public interest that
telecom, broadcasting and cable services dispute which affect
a large body of consumers all over the country should be
amenable to one expert body. What will happen if in a dispute
between two service providers in telecom sector arising out of
an interconnection agreement, a service provider revokes the
interconnection agreement. For these two, it may be dispute of
recovery of money or damages or of technical nature but
disconnection deprives consumers of access of one network to
the other network. Consequences are not limited to the two
service providers only but are of far reaching nature not
difficult to imagine. Similarly, if in cable industry, a
broadcaster and a multi-service operator sever their relations
under alloyed breach of agreement, it affects again a large
body of consumers who would not be able to avail the signals
for various channels and yet having made payment. An
arbitrator will find himself lacking jurisdiction to give relief to
hapless consumers.”
116. It was furthermore stated that the Act is a complete Code in itself and
it has exclusive jurisdiction to adjudicate any dispute between the parties
and also exercises exclusive appellate jurisdiction against any direction,
decision or any order of the TRAI.
117. The Tribunal also noticed the decision of the Supreme Court of India
in Clariant International vs. Securities and Exchange Board of India (2004)
8 SCC 524 paras 64 to 82.
It was concluded :
“21. The principles laid in various decisions of the Supreme
Court cited above are quite explicit. TRAI Act is a special law,
which will govern, and it overtakes general law, i.e.,
Arbitration Act, 1996. Also, TRAI Act, being the later Act
(TDSAT was constituted by the Amending Act of 2000) has
precedence over the earlier Act which is the Arbitration Act, Page 64 of 97
1996. The principle of generalia specialibus non derogant has
been referred to in a judgment of Supreme Court in Talcher
Municipality v. Talcher Regulated Market Committee and Anr.
: (2004) 6 SCC 178. Consent cannot confer jurisdiction when
there is none. Dominant public interest requires that all
disputes in telecom sector which includes broadcasting and
cable TV should be within the exclusive jurisdiction of TDSAT.
In these circumstances, public policy demands that
jurisdiction of Tribunal like TDSAT should be exclusive and
arbitration agreement not to have any applicability.
22. If we refer to the provisions of the Act, particularly, Section
15, it is quite clear that the only exception is when there is
arbitration under Section 7B of the Indian Telegraph Act,
1885, and in no other dispute within the jurisdiction of TDSAT
the matter can go to the arbitration. Statute is clear. By
judicial pronouncement no further proviso can be added
taking away jurisdiction of TDSAT except MRTP, individual
consumer disputes and dispute falling under Section 7B of the
Indian Telegraph Act, 1885. Even otherwise jurisdiction of
arbitration is barred by necessary implication. Provisions of
Section 89 of the Code of Civil Procedure has no application
inasmuch as jurisdiction of Civil Court to try any dispute
under the Act is barred. A court, therefore, cannot, frame
question arising out of the dispute in telecom sector and refer
the same to arbitration. Only two other provisions which are to
be read along with the Act are those under the Indian
Telegraph Act, 1885, and the Indian Wireless Telegraphy Act,
1933. TDSAT will have jurisdiction in respect of any dispute
as mentioned in Section 14 of the Act. It will also have the
jurisdiction if dispute arises in respect of direct activities in
telecom sector i.e. those relating to the telecom services.
Dispute between two service providers as landlord and tenant
would certainly be outside the ambit of the Act. Those
disputes over which TDSAT has no exclusive jurisdiction and
where the third party's interest like the consumers is not in
issue or where there does not exist any public interest, the
domestic forums chosen by the parties by way of an
arbitration agreement may be held to be valid.” (Emphasis
Supplied)
We would deal with this matter further a little later.Page 65 of 97
118. Mr. Maninder Singh would contend that the TDSAT will have no
jurisdiction where the third party interest like the consumer is not in issue.
According to learned counsel by reason of any service rendered by
the Petitioner the consumers are not affected.
What had been emphasized was the exclusivity of jurisdiction of this
Tribunal together with the consumers‟ interest.
In a case of this nature, ultimately consumer‟s interest would crop up
in one form or the other.
In this case even the Respondents have contended that in case of
stoppage of service , the consumers would suffer.
119. We may notice that while on the ground of non-payment of the
arrears, the termination notice was issued, the Respondent by a letter dated
20.1.2012, stated :
“The willful/intentional breaches on your part is intentional
and is calculated to cause irreparable damages and losses to
Etisalat DB Telecom Pvt Ltd., knowing fully that it will cause
`breach of the EDB‟s obligation to its Customers as well as its
contractual and/ statutory obligations to DoT, Government of
India as well as TRAI and has actually caused damages to
EDB.”
(Underlining is ours)
Similarly S. Tel. by its e-mail dated 28.11.2011, also stated:Page 66 of 97
“Already, great deal of damages has been caused to us by the
disconnections effected by you since 25th November, 2011,
impacting 191 sites so far. Our intention, in continuing to
write to you, even at this point, is to focus on a resolution that
does not further impact our connectivity and services.”
Any action taken in terms of the agreement, may therefore, affect the
consumer‟s interest.
The quality of the cable, the standard of equipments may also have an
impact on the ultimate services rendered to the consumers.
120. The Supreme Court of India, moreover, in Union of India vs. Tata
Teleservices Maharashtra Ltd. (2007) 7 SCC 517 opined that the Union of
India can invoke the jurisdiction of this Tribunal even in a case where the
bid of the Respondent was mutually accepted and, thus, it was yet to
become a licensee, stating :
“22. We have already indicated that a specialised tribunal
has been constituted for the purpose of dealing with
specialised matters and disputes arising out of licences
granted under the Act. We therefore do not think that there is
any reason to restrict the jurisdiction of the tribunal so
constituted by keeping out of its purview a person whose offer
has been accepted and to whom a letter of intent is issued by
the Government and who had even accepted that letter of
intent. Any breach or alleged breach of obligation arising after
acceptance of the offer made in response to a notice inviting
tender, would also normally come within the purview of a
dispute that is liable to be settled by the specialised tribunal.”
A prospective licensee was thus construed to be a licensee.Page 67 of 97
An expansive meaning to the term „licensee‟ had been assigned.
121. An important question with regard to the jurisdiction of this Tribunal
came up for consideration in Total Telefilms Pvt. Ltd. vs. Prasar Bharti
disposed of on 15.12.2008, wherein a Bench presided over by Arun Kumar,
J. opined that although Prasar Bharti, having been constituted under a
Parliamentary Act and thus, not required to obtain a license under Section
4 of the Act will be amenable to the jurisdiction of this Tribunal, as it was
required to obtain a permission of the Union of India as a DTH operator,
stating:
“21. Keeping in view the decisions of the Apex Court, as well
as the observations given above, it does not appear to us that
there is much ambiguity about the import of the use of terms
'means' and 'includes' in Section 2(j) of the TRAI Act.
Evidently, these terms were used by the Parliament with
deliberation. The very fact that the word 'government' existing
in the TRAI Act 1997 was substituted by the words
'government as a service provider', clearly indicate that the
term 'service provider' is defined to mean not only government
as a service provider but also the licencee. This amendment
was brought about in the year 2000 by which time the Prasar
Bharati Act was already in force. If the intention of the
Parliament was to exclude Prasar Bharati or any other such
institution it would have been expressly stated. The fact that
government itself was not excluded makes it difficult to
believe that Parliament intended to exclude Prasar Bharati. A
perusal of the preamble to the Prasar Bharati Act also does
not reveal any intention of the parliament to exclude it from
the operation of the provisions of any other statute, including
those of the TRAI Act. Besides, like in several other Acts, the
definition clause of the TRAI Act also starts with the
expression 'unless the context otherwise requires'. After the
amendment in the year 2000, the context has definitely
changed in the sense that broadcasting service was notified
as a telecommunications service, in keeping with the
provisions of the TRAI Act. It is therefore necessary to read the Page 68 of 97
definition of the term service provider in the context of the
notification issued in January 2004.”
122. It was opined that allocation of frequency is akin to a letter of intent
and the word `license‟ having not been defined, must be understood in its
ordinary grammatical sense, holding:
“This is the only authorisation for Prasar Bharati to conduct
its DTH operations. As indicated, DTH is a Telegraph and
every Telegraph activity requires licence under Section 4 of the
Indian Telegraph Act. We have also concluded that there is
nothing in the Prasar Bharati Act which automatically grants
a licence to Prasar Bharati to undertake its DTH operations
nor is there any provision to exempt it from the operation of
the provisions of the Indian Telegraph Act. On the other hand,
the explanation to Section 12(1) makes it explicit that Prasar
Bharati is bound by the provisions of the Indian Telegraph
Act. It can therefore be surmised that Prasar Bharati was
acting under the authority granted to it by the letter dated
19.11.2003 from the Ministry of Information and
Broadcasting.”
We wish, the Parliament would have risen to the occasion and
brought about amendments to the Act to meet the ground realities.
123. Mr. Maninder Singh, however, would contend that the services
rendered by the Petitioner do not come within the purview of the word
`Telegraph„; whereas DTH service was held to be so keeping in view the fact
that the meaning of the term `service provider‟ is exhaustive in nature.
124. The Department of Telecommunication (DoT) has a specific role to
play in the matter of working out of the Telegraph. It can act only in terms Page 69 of 97
of the provisions of the Act as also the 1933 Act. It has the exclusive
privilege having regard to the Section 4 of the Act as regards establishing,
maintaining and working of telegraphs. Nobody else has that right. Apart
from those statutes, DoT could not have exercised its power to distribute
largesse.
It could not have parted with its exclusive privilege.
125. The Central Government in a case may grant a license for
establishing and maintaining telegraphs but may keep unto itself the right
of exclusive privilege so far as working of telegraphs is concerned, it does so
by way of grant of a license, the same may also require grant of another
license under the 1933 Act or may not.
The words `work or operate‟ found in the ISP Registration Certificate
must be held to be different from the words `establish and maintained. All
words have been used in the context of Section 4 of the Act.
When the Central Government parts with an exclusive privilege it may
do so in its entirety or a part thereof.
Whereas the word `and‟ has been used in the main provision, the
word `or‟ has been used in the proviso. Page 70 of 97
If, whether by way of grant of registration certificate or otherwise, any
part of the exclusive privilege vested in the Central Government is to be
parted with or outsourced in favour of any other entity, the same would
mean a license.
The terms and conditions of the license have not been specified under
the Act. No rule in this behalf has been framed.
126. Formulation of the `terms and conditions‟ for grant of license as well
as fixation of consideration are within the exclusive domain of the Central
Government. For the said purpose, it is not necessary for it to stick to one
set of terms and conditions of the license. There can be different terms;
depending upon the facts and circumstances of each case. It subject to the
rule of `reasonable classification‟ as envisaged under Article 14 of the
Constitution of India may lay down different terms and conditions and claim
different amounts of consideration from different licensees.
If that be the legal position, it is difficult to comprehend as to why the
power to lay down passive infrastructure would not come within the purview
of Section 4 of the Act.
Interpretation of statute would depend on the text and context
thereof. It must march with the passage of time.Page 71 of 97
127. This aspect of the matter has been considered in a case
involving convergence of Telecommunication and Broadcasting Services, in
respect whereof no Regulation has been framed, being in Star India Pvt. Ltd.
vs. Bharat Sanchar Nigam Ltd. Petition No.72 of 2009 decided on
22.1.2010.
Therein the question which arose for consideration was as to whether
an agreement between a broadcaster and a telecom operator can be a
subject matter of dispute before this Tribunal.
128. Applying the principles of `purposive interpretation‟ it was held:
“The jurisdiction of this Tribunal as stated by the Apex Court
is wide in nature.
It having regard to its decision in Tata Teleservices
(supra) is entitled to adjudicate any dispute arising between
two service providers. The word „any‟ in this context would
mean all. It has to protect the interest of Service Providers.
This aspect of the matter has been considered by the
Supreme Court of India in Lucknow Development Authority Vs.
M.K. Gupta - AIR1994SC 787 wherein it was held:-
“4. ……………………………….
………………………………
……………………………The words 'any' and 'potential' are
significant. Both are of wide amplitude. The word 'any'
dictionary means 'one or same or all'. In Black's Law
Dictionary it is explained thus, word "any" has a diversity of
meaning and may be employed to indicate "all" or "every" as
well as "same" or "one" and its meaning in a given statute
depends upon the context and subject matter of the statute'. Page 72 of 97
The use of the word 'any' in the context it has been used in
Clause (o) indicates that it has been used in wider sense
extending from one to all. …………….”
35. The fact that the petitioner, as a provider of
„Broadcasting Service‟, is a service provider is beyond any
dispute. Admittedly the respondent is also a service provider
within the meaning of the provisions of the Act. The dispute
herein is, thus, between two service providers.
Although ordinarily the nature of services provided by
the parties hereto to the customers are absolutely different; by
reason of the agreement in question, both have agreed to
provide each other services for their own benefits.
See 14 of the Act does not mandate that the agreement
between two service providers must be in accordance with an
interconnect agreement within the purview of 2003 Regulation
and 2004 Regulations. They operate in different fields and do
not envisage a situation of this nature.
In fact a dispute between these service providers need
not arise in relation to an interconnect agreement. What is
necessary for the purpose of Section 14 of the Act is a dispute
simplicitor. Of course, the dispute must arise in connection
with telecommunication services. The Act does not mandate
that the jurisdiction of this Tribunal will depend upon framing
of a subordinate legislation.
Even otherwise, two service providers are at liberty to
enter into a commercial agreement which need not be
governed by a subordinate legislation. The respondent neither
says nor can say that such agreement is statutorily
prohibited.
Scientific and technological advances have made it
possible that there be some convergence of different types of
services.
36. It is not in controversy that even the respondent could
provide the services, the petitioner has been asked to provide.Page 73 of 97
Respondent has, thus, outsourced its activities to the
petitioner.”
(Emphasis supplied)
129. So far as the interpretation clause is concerned relying on various
decisions of Supreme Court of India it was noticed that the scheme as well
as the object and purpose of a statute must be taken into consideration
apart from the fact that the interpretation clause begins with the words
“unless the context otherwise requires”.
130. It was furthermore held that entering into interconnection agreement
is not a sine qua non for invoking the jurisdiction of this Tribunal.
131. Mr. Maninder Singh, however, would contend that in this case apart
from the fact that there does not exist any interconnection agreement,
neither any `value added service‟ nor any `telecommunication service‟ is
being rendered.
132. Our attention in this behalf has been drawn to an order passed by
this Tribunal in CH Entertainment Pvt. Ltd. vs. Connect Broadband Services
Ltd. Petition No. 98(C) of 2007 wherein the dispute arose out of alleged
breach of contract of the Clause 2.3.2 of the distributorship agreement
entered into by the parties thereto, whereby the Petitioner was to provide all
possible support to the Respondent in getting the LCOs listed in Schedule I
of the agreement. Page 74 of 97
133. This Tribunal held that it had no jurisdiction, stating:
“The dispute which now remains between the parties can at
best be about the breach of the said two agreements. There is
no dispute pertaining to telecom service. Therefore, in our
view, this petition is not maintainable in this Tribunal and the
same is accordingly dismissed. If the petitioner has any
grievance it may approach the appropriate forum in
accordance with law.”
In this case, however, we have held that the laying down of the dark
fibre, construction of tower etc. would come within the purview of the
definition of `telegraph‟.
134. Reliance has also been placed by Mr.Maninder Singh on a decision of
this Tribunal in M/s Tirupati Teleservices vs Zee Turner Ltd. wherein
keeping in view the fact that the Petitioner therein was not in the business
of transmission or retransmission of signals but merely a `dealer agreement‟
had been entered into, it was opined that:
“ The petitioner on its showing is not under business of
transmission or re-transmission of signals. It is only collecting
money on account of subscription fee from the subscriber from
the signals supplied by the respondent. A reference to the
prayer contained in this petition also shows that the
controversy raised in the present petition is in the nature of a
civil dispute. Accordingly this petition is not maintainable and
is disposed of.”Page 75 of 97
The aforementioned two decisions were distinguished by this Tribunal
in several decision including Star India (supra) and, thus, need not
considered once over again.
See also IndusInd Media Vs. Citi Cable .
135. Apart from the aforementioned decisions, we may furthermore notice
that in IndusInd India Communication Ltd. vs. Citi Cable Petition No.67 (C)
of 2008 disposed of on 27.7.2011, this Tribunal opined that CH
Entertainment Pvt. Ltd. and Tirupati Teleservices have no application in the
context of that case..
We may place on record that in the case of Star India (supra), the
correctness of the judgment in Aircel Digi link was consciously not
questioned as would appear from paragraph 54 thereof.
136. Our attention has also been drawn to a decision of Computer
Sciences Pvt. Ltd. vs. Department of Telecommunication being Petition
No.413 of 2010 wherein a dispute by and between an ISP category one
certificate holder and the licensor relating to imposition of penalty was the
subject matter of lis.
137. This Tribunal opined :
“38. Section 4 of the 1885 Act provides for a monopoly in Page 76 of 97
favour of the State. Only by reason of a National Telecom
Policy, 1994, the Central Government thought of a duopoly, by
reason whereof it had taken a policy decision to grant licence
to various private players on the basis of the bids submitted
by them in respect of each circle. However, by reason of
National Telecom Policy, 1999, the Central Government
thought to take recourse to Multipoly. The new policy frame
work focuses on creating of environment, which enables
continued attraction of investment in the telecom sector and
allows creation of communication infrastructure by liberalizing
on technological development and towards the said end, it
was to look at the Telecom service sector in respect of Cellular
Mobile Services, Radio Paging Services, Public Mobile Radio
Trunking Services, National Long Distance Operations,
International Long Distance Operations, Other Service
Providers, Global Mobile Personal Communication by Satellite
Service Providers and V-SAT based Service Providers.
From the stage of communication by voice only, the
definition of „telegraph service‟ has been expanded from time
to time. The petitioner, we are informed, made investments in
India.
The petitioner was granted a Registration Certificate in
stead and in place of a licence. The term „licence‟ as indicated
heretobefore, is not defined in the 1885 Act.
The licence granted by way of auction to a highest
bidder need not necessarily be statutory in nature. It is a trite
law that the words „licence‟ and „permission‟ are
interchangeable terms. It has been so held in the Modi
Rubbers Ltd. Vs. Union of India reported in 2010 (150 ELT
page 52) in the following terms :-
“16. The provisions of Sub-section(2) of Section 11,
Rule 15, Form „F‟ as also the dictionary meanings of
the word „license‟, as noticed hereinbefore, in no
uncertain terms show that the words „license‟ and
„permission‟ are inter-changeable.
22. We have arrived at the aforementioned
conclusion inasmuch as there does not exist any
distinction between license and permission.””
138. It was furthermore observed:Page 77 of 97
“47. If a licence can be granted in respect of the equipments,
which are capable of being used, should we, by an
interpretative process, give it a meaning so as to curtail the
jurisdiction of this Tribunal? The answer to the said question
should, in my opinion, be rendered in negative. (See G.P.
Singh‟s principles of interpretation of statutes – page 708, 11th
Edition). What is capable of being used, can also be misused.
The same, therefore, would attract the provisions of the 1885
Act having regard to the provisions contained in Section 20
and 20-A thereof. We fail to see any reason as to why the
word „telegraph‟ shall be given a narrow meaning, particularly
in view of the fact that the equipments and appliances
installed by the petitioner would come within the purview of
the definition of the said term.
In fact, the respondents themselves in no uncertain
terms, invoke with the provisions of the UASL licence on the
premise that the conditions of grant have been violated.
It is on the aforementioned backdrop, the terms
„licensee‟ and „licensor‟, as contained in Section 2 (e) and 2
(aa) of the 1997 Act must be construed.
A licence may be granted for certain purpose, which
need not be for providing specified public telecommunication
service. But in terms of the provisions of the Indian Telegraph
Act, the term „licensee‟ can be given a broader meaning taking
in view the purport and object of Section 14 of the Act.
48. I am of the opinion that the term „licensee‟ must be
considered keeping in view the words “unless the context
otherwise requires”.
It is not possible to read the word „licensor‟ as the
Central Government granting licence under Section 4 of
the1885 Act and not to give a corresponding meaning to the
term ‟licensee‟ in Section 2(e) thereof, particularly in view of
the fact that the term „licensor‟ has been inserted
subsequently.”
139. It was noticed that if such a contention is raised that ISP-1 Category
Registration Certificate would not come within the purview of the telecom Page 78 of 97
sector, the TRAI will have no jurisdiction to make any recommendations
which on the face of the 1997 Act it has.
In that case the Petitioner was directed to pay a sum of
Rs.14,21,415/- by way of damages. Appeals were preferred thereagainst.
140. The Supreme Court of India by an order dated 6.1.2012 passed the
following order:
“ Civil Appeal No..........Dy.34930/2011:
Learned counsel for the appellant seeks permission to
withdraw the appeal. Permission is granted. The
civil appeal is, accordingly, dismissed as withdrawn.
Civil Appeal No.10076 of 2011:
To put an end to the controversy involved in this case,
we direct the parties to move under Clause 5.0, which is
quoted at Page 25 of the Appeal Paper Book. The said
clause provides for arbitration. The Director
General, Telecommunication, shall nominate an
Arbitrator within a period of four weeks.
Disputes, both with regard to liability and
quantum of damages, will be decided by the Arbitrator
within a period of four months from the date of nomination
of the Arbitrator.
The civil appeal is, accordingly, disposed of.
The interim Order passed by this Court on
12th December, 2011, shall continue to operate till the
Award is made by the Arbitrator.”
Submission of Mr. Maninder Singh is that having regard to the
doctrine of `Judicial Discipline‟, it must be held by this Tribunal that when Page 79 of 97
there exists an arbitration clause, the same must be held to be prevailing
over the provisions of Section 14 of the 1997 Act.
141. In our considered view reference to arbitration could have been
resorted to by the Supreme Court of India in exercise of its jurisdiction
under Article 142 of the Constitution with a view to do complete justice
between the parties in the facts and circumstances of the case.
When a lis is decided inter parties, either in exercise of its appellate
jurisdiction under a statute or in terms of Article 136 of the Constitution of
India upon grant of leave, what is rendered by the Apex Court is a binding
decision between the parties.
142. Article 141, however, mandates that the law laid down by the
Supreme Court of India would be the law of the land.
It is, however, difficult to arrive at the conclusion that any law has
been laid down in terms of Article 141 of the Constitution of India by the
Supreme Court to the effect that Arbitration and Conciliation Act, 1996
shall prevail over the provisions of the 1997 Act.
If no ratio can be culled out from the said judgment, the jurisdictional
issue raised by the Respondent, in the opinion of this Tribunal can be Page 80 of 97
determined independent of the said order passed under Article 142 of the
Constitution of India.
143. Matter might have been different had a law been laid down in absence
of a Parliamentary statute or where the area was grey in which event the
same would prevail until the Parliament intervenes.
144. Mr.Maninder Singh would contend that the 1997 Act, does not
provide for a non obsante clause and thus, the `telecommunication services‟
should not be read as a `telegraph service‟.
145. Section 38 of the 1997 Act, however, provides that the provisions
thereof shall be in addition to the provisions of the 1855 Act and the 1933
Act and nothing therein shall affect any jurisdiction, powers and functions
required to be exercised or performed by the telegraph authority in relation
to any or following within the jurisdiction of such authority.
The power to grant license is within the purview of said proviso
appended to Section 4.
146. The power of the Central Government can be delegated to the
Telegraph Authority. The Delegator, it is well-known, retains it‟s
jurisdiction to discharge the delegated function and may itself exercise the
same at any time unless the delegating order states otherwise. Page 81 of 97
Ouster of Jurisdiction
147. The question of ouster of jurisdiction as envisaged under Section 9 of
the Code of Civil Procedure, 1908 depends upon several factors; one of them
being as to whether a new right has been created. The right to grant license
is created under the Indian Telegraph Act.
The dispute between a licensor and licensee by an Expert Tribunal as
also dispute between a service provider and service provider apart from the
general law have been specifically provided.
148. Section 15 of the Act specifically excludes the jurisdiction of the Civil
Court.
If that be so the general remedy is barred. A body with a judicial
functions has been created.
149. It is stated in Bennion on Statutory Interpretation 5th Edition at page
117, referring to a decision of Debt vs. General Medical Council, 2004 EW
Acc 2977, “on appeal and review from an expert Tribunal, the Court lacking
the expertise in question should intervene only when the decision is
perverse.” The Tribunal having expertise, therefore, as indicated
heretobefore must be held to have jurisdiction over such matter. Page 82 of 97
150. In S.A. De‟ Smith‟s Judicial Review of Administrative Action 6th
Edition at page 53, albeit, in the context of Tribunal, and Tribunals, Courts
and Enforcement Act, it was stated :-
“The First-tier Tribunal and the Upper Tribunal are public
authorities operating under the rule of law and it is important
that parties aggrieved by their determinations are able to
challenge them. In the new tribunal system, there are three
main ways of challenging decisions. First, “reviews” may be
carried out to identify and correct errors without the need for a
full appeal.”
When an original jurisdiction is exercised by a Tribunal of this nature,
only the Appellate Jurisdiction of the Supreme Court of India is in terms of
Section 18 can be invoked.
151. In G.P. Singh‟s Principles of Statutory Interpretation at page 771,
various instances have been cited to show that the legislature does not take
away the Civil Court‟s jurisdiction only when a new right is created and a
new Tribunal is set up for determination of that right. (See also Akbar
Khan vs UOI AIR 1962 SC 70 at 72).
152. In Raj Kumar Shivhare v. Assistant Director, Directorate of
Enforcement, (2010) 4 SCC 772 the Supreme Court of India opined:-
“31. When a statutory forum is created by law for redressal of
grievance and that too in a fiscal statute, a writ petition
should not be entertained ignoring the statutory dispensation.
In this case the High Court is a statutory forum of appeal on a
question of law. That should not be abdicated and given a goby by a litigant for invoking the forum of judicial review of the
High Court under writ jurisdiction. The High Court, with great
respect, fell into a manifest error by not appreciating this Page 83 of 97
aspect of the matter. It has however dismissed the writ
petition on the ground of lack of territorial jurisdiction.”
BSNL and MTNL in their capacity as licensees provide space to the
other licensees in their exchanges on a consideration as may be determined.
153. In Vodafone vs. MTNL Petition No.32 of 2010 disposed of on
4.2.2011 a question arose as to whether reasonableness of the rate fixed by
the said public sector undertakings is amenable to the jurisdiction of this
Tribunal on the premise that in relation thereto MTNL acted only as a
landlord. The said contention was negatived.
Arbitration and Concilliation Act, 1996 – Applicability of
154. Mr.Maninder Singh would submit that having regard to Section 5 of
the Arbitration and Conciliation Act, 1996 the jurisdiction of this Tribunal
will be barred as there exists an arbitration clause.
155. We do not agree principally having regard to the decision in Aircel
Digilink (supra). There is, moreover, nothing on record to show that the
stage for involving the arbitration agreement has reached in view of its
limited nature. There is also nothing to show that the stage therefor has
come into being keeping in view to the dispute resolution clause contained
in the agreement. Page 84 of 97
156. We may notice the order dated 22.11.2009 in Vertex Broadcasting
Company vs. UOI, Petition No.252(C) of 2009 that a dispute arose before a
learned Arbitrator as to whether this Tribunal has exclusive jurisdiction.
The matter was referred by the learned Arbitrator to this Tribunal. Upon
hearing the counsel for the parties it was held that the learned Arbitrator
has no jurisdiction and this Tribunal alone has jurisdiction to determine a
dispute between a licensee and the Union of India. Even otherwise the
jurisdiction of an Arbitrator is barred by necessary implication as noticed in
IndusInd Media (Supra).
157. Reliance has also been placed by Mr. Maninder Singh in Gujarat Urja
Vikas Nigam vs. Essar Power Ltd. reported in 2008(4) SCC 755.
158. The Supreme Court of India in that case while considering the
provisions of Sections 86, 158 and 174 and 175 of the Electricity Act, 2003
was of the opinion that the said Act having provided for a right in the State
Commission to decide a dispute itself, or to refer the same to some
Arbitrator, stated the law thus:
“28. Section 86(1)(f) is a special provision and hence will
override the general provision in Section 11 of the Arbitration
and Conciliation Act, 1996 for arbitration of disputes between
the licensee and generating companies. It is well settled that
the special law overrides the general law. Hence, in our
opinion, Section 11 of the Arbitration and Conciliation Act,
1996 has no application to the question who can
adjudicate/arbitrate disputes between licensees and
generating companies, and only Section 86(1)(f) shall apply in
such a situation.”Page 85 of 97
159. It was furthermore observed:
“31. There are various reasons why the State Commission
may not decide the dispute itself and may refer it for
arbitration by an arbitrator appointed by it. For example, the
State Commission may be overburdened and may not have
the time to decide certain disputes itself, and hence such
cases can be referred to an arbitrator. Alternatively, the
dispute may involve some highly technical point which even
the State Commission may not have the expertise to decide,
and such dispute in such a situation can be referred to an
expert arbitrator. There may be various other considerations
for which the State Commission may refer the dispute to an
arbitrator instead of deciding it itself. Hence there is no
violation of Article 14 of the Constitution of India.
34. Section 174 provides that the Electricity Act, 2003 will
prevail over anything inconsistent in any other law. In our
opinion the inconsistency may be express or implied. Since
Section 86(1)(f) is a special provision for adjudicating disputes
between licensees and generating companies, in our opinion
by implication Section 11 of the Arbitration and Conciliation
Act, 1996 will not apply to such disputes i.e. disputes
between licensees and generating companies. This is because
of the principle that the special law overrides the general law.
For adjudication of disputes between the licensees and
generating companies there is a special law namely 86(1)(f) of
the Electricity Act, 2003. Hence the general law in Section 11
of the Arbitration and Conciliation Act, 1996 will not apply to
such disputes.”
The said decision was rendered having regard to the provisions of the
Electricity Act, 2003.
160. The Court did not have any occasion to decide a question as to
whether the Arbitration and Conciliation Act, 1996 shall prevail over
another Parliamentary Act like the 1997 Act. Page 86 of 97
161. Mr.Maninder Singh would urge that in Gujarat Urja (supra) it was
found that Section 174 conferred on the Electricity Appellate Tribunal
exclusive jurisdiction.
The fact that with regard to the matters covered by Section 14 and
14A of the Act only this Tribunal has jurisdiction which is beyond any doubt
or dispute.
Non-Obstante Clause – Effect of its absence
162. It is urged that whereas the Electricity Act, 2003 contains a `Non
Obstante‟ clause, `the Act‟ does not.
Even in absence of a Non Obstante clause, a Tribunal created for
specific purposes can be conferred with exclusive jurisdiction.
A non obstante clause contained in a statute would certainly be
relevant for the purpose of interpretation thereof but even in absence
thereof the construction therein must be based on the text and context
thereof.
163. In Geeta vs. State of U.P. (2010) 13 SCC 678, the Apex Court
interpreted that the expression “shall continue to hold office as such”, in the
context of a non obstante clause in the following terms :-Page 87 of 97
“47. Unfortunately, the High Court in the impugned judgment
held that the non obstante clause in Section 7(3) has to be
read as totally obliterating other provisions of the Amendment
Act and that the Up-Pramukhs who were elected prior to the
Amendment Act would continue to hold office as if the
Amendment Act in its entirety had not been enacted.
48. However, in view of several decisions of this Court
discussed above, we hold that the non obstante cause in
Section 7(3) will have a limited operation to the extent of
allowing the Up-Pramukh to “continue to hold the office as
such … as if the said Act were not enacted”
49. In our view, the term “continue to hold the office as such”
would mean that despite the abolition of the post of UpPramukh in the amending Act, those who were elected as UpPramukh prior to such amendment will just continue as such
i.e. as Up-Pramukh till his term expires. The expression “as
such” has been added by way of caution and to emphasis
that the continuance of Up-Pramukh is limited to just holding
the office of Up-Pramukh.”
In any event the jurisdiction of this Tribunal in such matters having
been determined in Aircle Digi link, the correctness whereof was also not
questioned by Mr.Maninder Singh in Star India (Supra), we are of the
opinion that the said decisions have not been overruled by necessary
implication in Gujarat Urja (supra) as contended by Mr.Singh.
Cessation of Operation Issue
164. Mr.Dayan Krishnan submitted that his client S Tel Ltd. having
ceased to carry out any operation in terms of the decision of the Supreme Page 88 of 97
Court of India in Centre for Public Interest Litigation (supra), this Tribunal
will have no jurisdiction.
The said submission cannot be accepted for more than one reason.
165. The Supreme Court itself in Centre for Public Interest Litigation
(supra) granted time to the licensees whose licenses were directed to be
cancelled till June 2012 to carry out their operations operation. (The
Respondent even filed an application for review of the said judgment, which
however, has been dismissed alongwith other Review Applications).
If despite the same the license had not been performing their
functions, it cannot take advantage thereof [See paragraph (iii) and (vi)
paragraph 102 of Centre for Public Interest Litigation (supra)].
166. Moreover in Bargachh Telelinks Pvt Ltd. & Anr. vs. M/s Noida Vision
disposed of on 28.5.2010 it was opined by this Tribunal:-
“…Given the ordinary meaning assigned to the term `Dispute‟
between two service providers; the same would not mean that
so long as they remain service providers and both of them
must continue to have the relationship, although, when the
dispute arose, both of them were service providers.”Page 89 of 97
167. In Eureka Cable TV Network vs. Valric Cable & Anr., Petition No.29(C)
of 2008 disposed of on 28.05.2010, it was held:
“It is now a well settled principle of law that subject to
consideration of subsequent events, the issues raised in a
petition would have to be determined as on the date of
filing thereof. The petitioner has filed this application on
or about 21.2.08. It had, as noticed hereinbefore, has
prayed for a decree for a sum of Rs.6,14,167/- up to the
period January, 2008. A bare perusal of the provision of
Section 14 of the Act would clearly go to show that the
period for which the outstanding has been claimed is for
the period during which the respondent no.1 admittedly
was a MSO. If that be so, only because he has allegedly
ceased to be so at a later date, the same would not mean
that this petition would not be maintainable.”
Has a divergent view taken in Oil India Ltd.?
168. Mr. Maninder Singh has relied upon a decision of this Tribunal in Oil
India Ltd. vs. UOI being Petition No.272 of 2011 wherein jurisdiction of
this Tribunal was not in question.
The Petitioner therein was a public sector undertaking. It had two
licenses, one a National Long Distance License and the other an ISP
category one license.
169. The question which arose for consideration therein was as to whether
license fee could have been demanded from the Petitioner therein in respect
of its activities of ISP Category I registration holder while computing its AGR
as a NLD license holder The answer thereto was rendered in the negative.Page 90 of 97
A judgment as is well known is not to be read as a statute.
170. It must be read having regard to the factual matrix involved therein.
It was held:
“64 The Court should not place reliance upon a judgment
without discussing how the factual situation fits in with a
fact-situation of the decision on which reliance is placed, as it
has to be ascertained by analysing all the material facts and
the issues involved in the case and argued on both sides. A
judgment may not be followed in a given case if it has some
distinguishing features. A little difference in facts or
additional facts may make a lot of difference to the
precedential value of a decision. A judgment of the Court is
not to be read as a statute, as it is to be remembered that
judicial utterances have been made in setting of the facts of a
particular case. One additional or different fact may make a
world of difference between the conclusions in two cases.
Disposal of cases by blindly placing reliance upon a decision
is not proper. (Vide: Municipal Corporation of Delhi v. Gurnam
Kaur, AIR 1989 SC 38; Govt. of Karnataka v. Gowramma ,
AIR 2008 SC 863; and State of Haryana v. Dharam Singh;
Ors. (2009) 4 SCC 340).”
Those observations were made on a pre-supposition that NLD license
was the only license granted under Section 4 of the Act in regard to its
telecommunication activities for which AGR was payable and not the other
one.
171. The said decision having been rendered in different fact situation, we
are of the opinion the same cannot be said to have been application in the
instant case. Page 91 of 97
No divergent view therein, therefore, has been rendered. It was
decided in different context.
172. Oil India (supra) is moreover not an authority on the construction of
Section 4 of the Act. No argument was advanced on the said question and,
thus, no decision has been rendered. No question of jurisdiction was
debated at the bar. Stray observations, it is well-settled torn out of context,
cannot have a precedential value. Opinion having been rendered sub
silentio and without any argument does not become a binding precedent.
(See Divisional Controller, KSRTC vs. Mahadeva Shetty and Anr. (2003) 7
SCC 197) (For a detailed discussion on the subject see Deb Narayan Shyam
and Ors. vs. State of W.B. and Ors. (2005) 2 SCC 286).
Applicability of Section 14 of the Act
173. The 1997 Act uses the word `licensee‟ only at three places, namely, its
definition, in Section 2 (j) and Section 14 of the Act. At all other places the
Act uses the words `Service Provider‟.
It is a well-known principle of law that when two different words as
used in the same statute ordinarily the same should be given different
meanings. If that be so, the meaning of the word `Service Provider‟ and
`licensee‟ must be construed differently. Page 92 of 97
174. On the face of the provisions of the Act, the scope and ambit of the
word `service provider‟ must be held to be more expansive then the word
`licensee‟.
Only in that view of the matter, the text and context of the statute
becomes relevant.
175. Mr.Maninder Singh, urged that in the `Preamble‟ of the 1997 Act, only
the words `telecommunication services‟ have been used and the TRAI and
this Tribunal have been constituted to regulate only `telecommunication
services‟ and not the `telegraph services‟.
The fact that the Parliament has referred to Section 4 of the Indian
Telegraph Act, 1885 in the context of definition of the word `licensee‟ and
`licensor‟ is indicative of the fact that what is sought to be emphasized is
that the Regulatory regime in regard to the `Telecommunication Services‟
industry.
[See the discussions in Aircel Digilink (Supra)]
Indisputably, the functions performed by the DoT are confined to the
1885 Act and 1933 Act. Page 93 of 97
`Telegraph‟ is, therefore, an integral part of the `Telecommunication
Services‟. To hold otherwise would cause violation to the object and
purpose of the Act.
176. We may also notice the Tribunal‟s opinion in the case of Reliance
Infocomm Ltd vs. UOI (DoT) being Petition No.3/2005 decided on 04.03.05:-
“40. Telegraph Act, however, grants exclusive privilege in
respect of working of telegraphs on the Central Government
and by granting license Central Government has parted with
that exclusive privilege in favour of licensee to an extent.
Nature of duty in telecommunication is such that any licensee
under Section 4 could be said to have undertaken to perform
public duty. The cases cited by Mr.Salve are those which
relate to trade of liquor. There is no law that right to trade in
liquor or intoxicants exclusively belongs to the State and it is
the State which is parting that right (or privilege) in favour of
the traders. There is, therefore, marked difference as under
Section 4 of Telegraph Act where exclusive privilege is
conferred on the State i.e. the Central Government.”
It was observed :-
“43…. It must also be noticed that licenses have been
granted under Section 4 of the Telegraph Act before the TRAI
Act came into force. We, therefore, do not find any merit in
this contention of Mr.Salve and reject the same.”
It is further observed:
“43. …………….The Court referred to the definition of
telegraph and noticed that there was no dispute that the
expression „telegraph‟ as defined in the Act shall include
telephones and telecommunications services. The Court
observed that Central Government is expected to put such
conditions while granting licenses, which shall safeguardPage 94 of 97
the public interest and the interest of the nation. Such
conditions should be commensurate with the obligations
that flow while parting with the privilege which has been
exclusively vested in the Central Government by the Act.
The Court also noticed promulgation of Telecom
Regulatory Authority of India Ordinance, 1996 and the
definition of the “telecommunication services‟ and other
provisions in the ordinance. Referring to the tender
conditions Supreme Court noticed that in Section III
contained different conditions including in respect of
security in Clause 16. The Court said that there was no
dispute with the expression „telegraph‟ as defined in the
Telegraph Act shall include telephones and
telecommunication services. The Court noticed:
“In view of the clear and unambiguous proviso to subsection (1) of Section 4, enabling the Central Government to
grant licences for establishment, maintenance or working of
telegraphs including telecommunications, how can it be
held that the privilege which has been vested by subsection (1) of Section 4 of the Act in the Central Government
cannot be granted to others on conditions and for
considerations regarding payments? According to us the
power and authority of the Central Government to grant
licences to private bodies including companies subject to
conditions and considerations for payments cannot be
questioned. That right flows from the same sub-section (1)
of Section 4 which vests that privilege and right in the
Central Government”.
It must also be noticed that licenses have been
granted under Section 4 of the Telegraph Act before the
TRAI Act came into force. We, therefore, do not find any
merit in this contention of Mr.Salve and reject the same.
44. In the present case the nature of license is such
that any breach of its obligations on the security aspect can
be of serious consequence for the nation.”
177. Mr.Maninder Singh submitted that having regard to the definition of
the `Telecommunication Services‟, the same must be made available to
users. Page 95 of 97
178. Would that mean that an important component of services, i.e. when
a service is rendered by one service provider to another and not to the
consumers directly, the same would be outside the preview of the
jurisdiction of the Tribunal ?
This question has categorically been answered in Star (India) Ltd
(Supra).
179. Mr.Singh submitted that, if apart from the `Telecommunication
Services‟ other services were to be declared as carrying similar services; the
Central Government could have issued a notification under the proviso
appended to the Section 2 (k) of the Act.
180. We may notice that on or about 9.1.2004, the Central Government
issued such a notification on 9.1.2004 whereby Broadcasting and Cable
Services were declared to be `Telecommunication Services‟.
Some of the decisions referred to heretobefore were rendered only in
that context.
Moreover, it is not disputed that before the High court of Delhi,
Etiselat itself stated that only this Tribunal has jurisdiction to determine
such dispute.Page 96 of 97
181. We are not invoking the Doctrine of Estoppel, as otherwise it would
not have been necessary for us to deal in great details the contentions of
learned counsel.
It only goes to show that even the Respondent thought in the same
way.
182. Moreover, in this case this Tribunal cannot be said to be wanting
jurisdiction in the other cases, as licenses have admittedly been granted to
the Petitioners therein under Section 4 of the 1885 Act, which covers the
petitions filed by Reliance Communication ltd. and Reliance Telecom Ltd.
Conclusion
183. For the reasons aforementioned we are of the opinion that this
Tribunal has jurisdiction to adjudicate the dispute on merit.
184. The prayer of the Respondent(s) in this behalf is rejected.
185. Submissions have been made by Mr.Srinivasan that an interim order
of injunction restraining the Respondent from alienating its property may be
passed. Page 97 of 97
186. Our attention has been drawn to an order passed by the Delhi High
Court, where Sistani, J has passed a similar order.
187. However, as Etisalat has already been restrained by a competent
court of law, no ad interim order need be passed at this stage.
188. However, so far as S Tel is concerned, it may subject to any other or
further order that may be passed by this Tribunal is restrained from
transferring its property to a third party without the leave of this Tribunal
by way of an ad-interim measure.
189. For hearing on the interim prayer made by the Petitioner, list after
one week
……………….
(S.B. Sinha)
Chairperson
………………….
(P.K. Rastogi)
Member
Anu/HKC/ 9.4.2012
