Very important point
Most of the findings recorded by Telecom Disputes Settlement and Appellate Tribunal in the application under Section 14 of Telecom Regulatory Authority of India Act, 1977 are not supported by any cogent reasons. The impugned order is set aside under Section 18 of the Act by Supreme Court and the matter is remitted to TDSAT for consideration of the matter afresh in accordance with law.

Headnote:(i) Telecom Regulatory Authority of India Act, 1977—Sections 14 and 18—Powers of Telecom Disputes Settlement and Appellate Tribunal (TDSAT) under Section 14 and of Supreme Court in appeal against decision of TDSAT under Section 18.
       Held (Per CJI and H.K. Sema, J.) : We would, therefore, answer the question of jurisdiction of the appellate tribunal by holding that the said tribunal has the power to adjudicate any dispute between the persons enumerated in clause (a) of Section 14 and if the dispute is in relation to a decision taken by the government, as in the case in hand, due weight has to be attached both to the recommendations of the TRAI which consists of an expert body as well as to the recommendations of the GOT-IT, a committee of eminent experts from different fields of life, which had been constituted by the Prime Minister. (Para 12)
       Held further : So far as the jurisdiction of this Court under Section 18 is concerned, there is no dispute from any quarter that the appeal would lie against any order of the appellate tribunal only on the ground specified in Section 100 of the Code of Civil Procedure and necessarily, therefore, it must be a substantial question of law. (Para 13)
       (ii) Telecom Regulatory Authority of India Act, 1977—Section 18—Appeal against rejection of applications by TDSAT to Supreme Court—Whether from the judgment of the Tribunal, the contentions raised by the appellants can be held to be a substantial question of law, which requires the interference with the order of the Tribunal? —(Yes)—Appeals allowed by remand to Tribunal for fresh consideration.
       Held (Per CJI and H.K. Sema, J.) : According to the tribunal, allowing WLL with limited mobility will be to render cheaper telephone service to the consumer, both in rural and urban areas. This finding also is borne out from the materials on record and it may not be possible for us to interfere with those findings with the limited power, we have under Section 18 of the Act. But the conclusion of the tribunal that nothing should be allowed to stand in the way of pursuing the objective of increasing tele-density in the country and that the decision being a policy decision, is not liable to be interfered with by the Tribunal, cannot be sustained inasmuch as the main grievance of the cellular operators was to the effect that the tribunal did not consider several materials placed before it on the question of level playing field nor has it given any positive finding on that. The Ld. Attorney General as well as Mr. Ashok Desai and Dr. Singhvi, strenuously urged by spinning some words from different parts of the order of the tribunal to contend that the issue of level playing field also has been considered and answered. But we are unable to accept this contention. Further, even in the recommendation of the TRAI as well as the recommendation of the GOT-IT, it was specifically indicated that the WLL with limited mobility can be permitted if the question of level playing field of the cellular operators is duly considered and they are duly compensated. On this issue, according to Mr. Chidambaram and Mr. Vaidyanathan, huge materials had been produced and the tribunal never applied its mind to those materials, being swayed away by the question that this being a policy decision, cannot be interfered with by the tribunal. Such approach of the tribunal was wholly erroneous and non-consideration of materials on a vital issue by the tribunal would constitute a substantial question of law within the meaning of Section 18 of the Act, on account of which this Court can interfere with the decision of the tribunal. Notwithstanding the fact that the conclusion of the tribunal that introduction of WLL (M) is in the interest of the consumer and a consumer would be able to get the services at a much cheaper rate, which will ultimately increase the tele-density in the country, being a conclusion on consideration of materials and as such cannot be interfered with by this Court within the limited power under Section 18. But non-consideration of relevant materials on the issue regarding level playing field and absence of any finding by the tribunal on that score would vitiate the ultimate decision. The bald conclusion of the tribunal that the cellular operators have already been compensated in various ways and the erosion of profits has also been taken by the entry of the fourth-cellular operator, cannot be held to be a conclusion on the issue of level playing field, as contended by the learned Attorney General and reiterated by Dr. A.M. Singhvi. In the aforesaid premises, we are unable to sustain the impugned decision of the tribunal. We accordingly set aside the same and remit the matter to the tribunal for reconsideration with special emphasis on the question of level playing field, on the basis of materials already on record, after hearing the counsel for the parties concerned. (Para 15)
       Held consequently : These appeals are accordingly allowed and the cases are remitted back to the tribunal for reconsideration in accordance with the observations made by us in this Judgment. (Para 16)
       Held (Per S.B. Sinha, J.) (Concurring) : I agree with the conclusions of the judgment prepared by My Lord, Chief Justice of India that the matter should be remitted back to the tribunal but I would like to assign additional reasons therefor. (Para 17)
       In our opinion the learned Tribunal failed to assign sufficient or cogent reasons in support of its findings. In relation to some issues, no reason has been assigned. Some issues although noticed have not been adverted to. Some issues have even not been noticed. The impugned order of the TDSAT, therefore, does not fulfil the criteria of a judgment. (Para 26)
       TDSAT was required to exercise its jurisdiction in terms of Section 14A of the Act. TDSAT itself is an expert body and its jurisdiction is wide having regard to sub-section (7) of Section 14A thereof. Its jurisdiction extends to examining the legality, propriety or correctness of a direction/order or decision of the authority in terms of sub-section (2) of Section 14 as also the dispute made in an application under sub-section (1) thereof. The approach of the learned TDSAT, being on the premise that its jurisdiction is limited or akin to the power of judicial review is, therefore, wholly unsustainable. The extent of jurisdiction of a court or a Tribunal depends upon the relevant statute. TDSAT is a creature of a statute. Its jurisdiction is also conferred by a statute. The purpose of creation of TDSAT has expressly been stated by the Parliament in the Amending Act of 2000. TDSAT, thus, failed to take into consideration the amplitude of its jurisdiction and thus misdirected itself in law. (Para 32)
       Held further : We may notice that most of the findings recorded by the TDSAT are not supported by any cogent reason. It arrived at some findings without referring to any material on records. (Para 68)
       Held consequently : The impugned order, therefore, cannot be sustained and it is set aside accordingly. The matter is remitted to TDSAT for consideration of the matter afresh in accordance with law. (Para 72)

Judgment

Pattanaik, CJI.—These appeals are under Section 18 of the Telecom Regulatory Authority of India Act, 1997 [hereinafter referred to as the Act ] against the decision of the Telecom Disputes Settlement and Appellate Tribunal [hereinafter referred to as the tribunal ]. The appellants are Cellular Mobile Service Providers (CMSPs) and the private respondents are the Fixed Service Providers (FSPs). The appellants approached the tribunal under Section 14 of the Act, challenging [he decision of the Government dated 25.1.2001, permitting the Fixed Service Providers to offer WLL with limited mobility. Be it be stated that the appellants had also assailed the recommendations of the Telecom Regulatory Authority of India [for short TRAI] dated 8.1.2001. But after the Government decision dated 25.1.2001, the petition was amended and the subsequent decision of the Government was also challenged. Before the tribunal, large number of issues on facts and law had been raised, which can be broadly enumerated as under:

(i) The decision of the government is vitiated for non-compliance of Section 11(1)(a)(i) of the Act.

(ii) The NTP-1999 never contemplated of WLL with limited mobility and as such the decision to provide WLL with limited mobility to the Fixed Service Providers is beyond the policy in question.

(iii) The permission to offer WLL with limited mobility is arbitrary, unreasonable and unjust decision on the part of the Government.

(iv) TRAI, while recommending by its letter dated 8.1.2001 had indicated for compliance of two conditions, but the government decision ultimately taken is contrary to the said recommendations and, therefore, is vitiated.

(v) The ultimate decision of the government in fact does not deal with the question of level playing field between FSPs offering WLL with limited mobility and CMSPs, as a result of the discriminatory regulatory regime.

(vi) The impugned decision conferring the benefit of WLL with limited mobility to the Fixed Service Providers is nothing but a Cellular Mobile Service in SDCA and as such is a substitution for the same and such a substitution ought not to have been allowed.

(vii) The Government decision allowing Fixed Service Providers to provide WLL with limited mobility without any entry fee and without any charges for allocation of spectrum and even without a competitive bidding, amount to violation of the recommendations made by the TRAI dealing with new CMSPs licensees.

2. The stand of the Union Government as well as the Fixed Service Providers and also the consumers before the tribunal was that there was no prohibition in the policy of 1999 (NTP-1999) either for introduction of any new technology in consumers interest nor is there any bar on the power of the competent authority to accept the recommendations of the TRAI and take a final decision regarding permitting inexpensive and advantageous system for the consumers. It was also urged that both before the TRAI and also before the Special Committee appointed by the Prime Minister, long deliberations had been made and the Cellular operators were extensively heard and then on the basis of the recommendations of the Special Committee, the Prime Minister took the decision. When a highly expertised body has recommended, which was ultimately accepted by the government, it would not be for the Court to interfere with the same unless the so-called recommendations are found to be either arbitrary or contrary to law or in violation of the principles of natural justice. That being so, it would not be for the appellate tribunal to interfere with the well considered decision of the Government of India in approving the recommendations of the specially constituted Committee and in permitting the Fixed Service Providers to use WLL with limited mobility mechanism in the larger interest of the society. It was also contended before the tribunal that before making, any recommendations, the Committee had duly examined the question of level p

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2002 Supreme(SC) 1238

Cases Referred (15)