IMPORTANT POINTS
TRAI can also make regulations on subjects specified in sections 11, 12 and 13.
TDSAT cannot entertain challenge to Regulations framed by TRAI under section 36(1)
Section 36(1) is not controlled or restricted by section 36(2).

Headnote:(a) Words and Phrases - Regulate and Regulation - Regulate includes prohibition within its fold - It has no fixed connotation - Term 'regulate' is elastic enough to include the power to issue directions or to make regulations. (Paras 29 and 35)
        AIR 1964 SC 1781; (1981) 2 SCC 205; (1985) 2 SCC 116; LR (1888) 13 AC 446; 1989 Supp (2) SCC 52; 1992 Supp (1) SCC 684; (2000) 8 SCC 655; (2004) 5 SCC 430 - Relied upon
        (b) Telecom Regulatory Authority of India Act, 1997 - Section 11(1)(b) and 36(1) - Expression "as may be provided in the regulations" appearing only in clauses (vii) and (viii) - Such expression not appearing in other clauses, (i) to (vi) - Does not prohibit making regulations on the subjects specified in those clauses. (Para 35)
        AIR 2000 (Delhi) 208 - Overruled
        (2004) 8 SCC 524; (2002) 8 SCC 715 - Distinguished impliedly
        (1996) 2 SCC 405 - Referred
        (c) Telecom Regulatory Authority of India Act, 1997 - Section 36 - Section 36(2) does not control exercise of power by Authority u/s 36(1) - It also does not restrict scope of section 36(1) - In exercise of power under Section 36(1), in addition to framing regulations on subjects covered by section 11, the Authority can make regulations empowering it to issue directions of general character applicable to service providers and others - Such exercise of power will not amount to encroachment on provisions of Sections 12(4) and 13. (Paras 36, 43)
        AIR 1942 PC 156; 1964 (4) SCR 991; AIR 1966 SC 1471; (1985) 2 SCC 116; AIR 1951 SC 201; 1986 (Supp) SCC 20; 1986 (Supp) SCC 20; (2011) 8 SCC 274 - Relied upon
        (d) Telecom Regulatory Authority of India Act, 1997 - Sections 33 and 37 - The Authority, under section 33 can delegate its powers and functions except the power to settle disputes under Chapter IV or to make Regulations under section 36 - Further Regulations under section 36 are legislative in nature in terms of section 37 - Therefore they are non-delegable. (Para 44)
        (e) Telecom Regulatory Authority of India Act, 1997 - Section 36(1) - Power to make regulations is wide and pervasive - This power is subject only to provisions of the Act and Rules framed u/s 35 - It is not controlled or limited by section 36(2) or sections 11, 12 and 13. (Para 45)
        (f) Telecom Regulatory Authority of India Act, 1997 - Section 14 - Original jurisdiction of TRAI vested in TDSAT vide section 14(a) - Appellate jurisdiction of High Court vested in TDSAT vide section 14(b) - As the High Court did not have power of judicial review of subordinate legislation, TDSAT can also not exercise such power - Thus TDSAT does not have power to entertain challenge to the regulations framed by the Authority. (Paras 52 and 64)
        (1997) 3 SCC 261; (2003) 3 SCC 186; (2007) 7 SCC 517; (2010) 11 SCC 1; C.A. No.6743/2003; (2012) 10 SCC 353 : 2012 (10) SCALE 285; (2010) 4 SCC 603 - Distinguished
        (2006) 13 SCC 753; (2011) 10 SCC 543; (1971) 2 SCC 747; (1985) 1 SCC 641 - Referred
       Facts of the case:
        Two questions of law are raised in this case: (i) whether TRAI can make Regulations on subjects specifically provided in section 11, 12 and 13; and (ii) whether TDSAT can entertain challenge to Regulations framed by TRAI.
       Finding of the Court:
        The answer to first question shall be in affirmative while answer to the second question shall be in the negative.

Judgment

G.S. SINGHVI, J.

1. By an order dated 6.2.2007 passed in Civil Appeal No. 3298 of 2005 -Telecom Regulatory Authority of India (Authority) v. Bharat Sanchar Nigam Limited (BSNL) and connected matters, a two Judge Bench made a reference to the larger Bench for determination of the following substantial questions of law of public importance:

1. Whether in the event of any inconsistency between the terms and conditions of the licenses issued under Section 4 of the Indian Telegraph Act, 1885 and the provisions of the Telecom Regulatory Authority of India Act, 1997 (for short, 'the Act'), the provisions of the Act would prevail in view of the purpose and object for which the Act has been passed, i.e., for ensuring rapid development of telecommunications in the country incorporating the most modern technology and, at the same time, protecting the interests of the consumers and the service providers?

2. Whether Authority has powers to fix the terms and conditions of inter connectivity between service providers, in respect of all the licenses, irrespective of the fact whether licenses issued before or after 24.1.2000 - especially in view of the non-obstante clause in sub- section (1) of Section 11 and sub-clause (ii) of Clause (b) of sub-section (l) of Section 11 of the TRAI (Amendment) Act of 2000?

3. Whether Authority has no power to fix terms and conditions of interconnectivity between service providers in respect of licenses issued after 24.01.2000 including terms and conditions of interconnection agreements - in view of, inter-alia, the scheme laid down in the provisos to Section 11(1) of the TRAI Act, 1997 as amended on 24.01.2000 and if it does not have any such power what would be the harmonious construction of the amended clause 11(1)(b)(ii) and the new scheme more specifically embodied in the provisos?

4. Whether under the amended provisions of the TRAI Act, 1997 introduced w.e.f 24.01.2000 - the harmonious construction of Section 11(1)(b)(ii) and the scheme of the provisos to Section 11(1) would allow the Authority to have the power to fix the terms and conditions of interconnectivity with respect to licenses issued before 24.1.2000, only to the extent the licensor (Govt. of India) accepts the recommendations of the Authority for incorporation in the new licenses, so as to achieve level playing field between the service providers granted licenses before and after the amendment of the TRAI Act?

5. Whether the appeals are maintainable in the present form?

2. The larger Bench heard the arguments on various dates but released the cases vide order dated 19.10.2011. Thereafter, by mistake the Registry listed all the matters before a two Judge Bench. During the course of hearing, Shri A.S. Chandhiok, learned senior advocate appearing for BSNL invited the Court's attention to orders dated 6.2.2007 and 21.10.2010 and pointed out that the cases were earlier heard by the larger Bench. Thereupon, the two Judge Bench directed that the cases be posted before the larger Bench.

3. When the cases were listed before this Bench, learned counsel for the parties agreed that a preliminary issue relating to jurisdiction of the Telecom Disputes Settlement Appellate Tribunal (TDSAT) to entertain challenge to the regulations framed by the Authority may be decided before the questions framed vide order dated 6.2.2007 are taken up for consideration. Thereupon, the Court decided to hear the arguments on the following question: "Whether in exercise of the power vested in it under Section 14(b) of the Act, TDSAT has the jurisdiction to entertain challenge to the regulations framed by the Authority under Section 36 of the Act.

4. For better appreciation of the arguments advanced by learned counsel for the parties, we may notice the facts borne out from the records of different appeals.

Civil Appeal Nos. 5253, 5184, 5873, 6068, 6255 of 2010 and Civil Appeal No.D

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2013 Supreme(SC) 1105

IMPORTANT POINTS TRAI can also make regulations on subjects specified in sections 11, 12 and 13. TDSAT cannot entertain challenge to Regulations framed by TRAI under section 36(1) Section 36(1) is not controlled or restricted by section 36(2).

Cases Referred (23)

IMPORTANT POINTS
TRAI can also make regulations on subjects specified in sections 11, 12 and 13.
TDSAT cannot entertain challenge to Regulations framed by TRAI under section 36(1)
Section 36(1) is not controlled or restricted by section 36(2).