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2016 Supreme(Cal) 47
IN THE HIGH COURT AT CALCUTTA
DIPANKAR DATTA, J.
Reliance Communications Ltd. & ors. - Petitioners
Vs.
The Union of India & ors. - Respondents
W.P. 482 (W) of 2016
Decided on : 27.1.2016
Advocate Appeared:
Mr. P. Chidambaram, Mr. Jishnu Saha, Mr. Sanjib Kumar Mal, Mr. Sanjay Ginodia, Mr. L. Kamath, Mr. Debnath Ghosh, Mr. Manoj Kr. Tiwari, Mr. Sushovit Dutt Majumder, for the petitioners
Mr. Kausik Chanda, Mr. Subrata Roy, for the respondent
The TDSAT has exclusive jurisdiction to adjudicate any dispute between a licensor and a licensee under the Telecom Regulatory Authority of India Act, 1997, except for disputes relating to the validity of the terms and conditions incorporated in the license of a service provider.
Headnote:
LICENSEE - DISPUTE - JURISDICTION - TDSAT - TELECOM REGULATORY AUTHORITY OF INDIA ACT, 1997 - SECTION 14 - The TDSAT has the exclusive jurisdiction to adjudicate any dispute between a licensor and a licensee, as defined under the TRAI Act. The term "any" in Section 14(a) of the TRAI Act should be interpreted broadly to include all disputes, except those relating to the validity of the terms and conditions incorporated in the license of a service provider, which are beyond the TDSAT's adjudicatory powers.
Fact of the Case:
The petitioners, engaged in the business of providing telecom services, challenged the validity of certain guidelines issued by the government, a demand for payment of One Time Spectrum Charges (OTSC), and a letter from the respondent stating that there was no infirmity in the calculation of the OTSC demand. The petitioners contended that the TDSAT lacked jurisdiction to decide the dispute and that they had no other option but to approach the High Court under Article 226 of the Constitution.
Finding of the Court:
The High Court held that the TDSAT had jurisdiction to adjudicate the dispute between the petitioners and the respondent and that the petitioners should have approached the TDSAT first before filing a writ petition under Article 226 of the Constitution. The Court further held that the TDSAT's jurisdiction was wide and expansive and that it was the only remedy available to a licensee like the petitioners.
Issues: 1. Whether the TDSAT had jurisdiction to adjudicate the dispute between the petitioners and the respondent. 2. Whether the petitioners were precluded from claiming any relief by reason of their conduct post introduction of the guidelines.
Ratio Decidendi: 1. The term "any" in Section 14(a) of the TRAI Act should be interpreted broadly to include all disputes, except those relating to the validity of the terms and conditions incorporated in the license of a service provider, which are beyond the TDSAT's adjudicatory powers. 2. The TDSAT has the exclusive jurisdiction to adjudicate any dispute between a licensor and a licensee, as defined under the TRAI Act. 3. The TDSAT is not an alternative to the remedy available under Article 226 of the Constitution but is the only remedy available to a licensee who perceives to have been subjected to a legal wrong by the licensor.
Final Decision: The writ petition was dismissed with liberty to the petitioners to approach the TDSAT in accordance with law. The High Court also clarified that any payment effected in terms of its earlier order dated January 14, 2016 would be subject to further orders being passed by the TDSAT, if approached.
1. The first petitioner is engaged in the business of providing telecom services in India and is a ‘service provider’ within the meaning of clause (j) of sub-section (1) of section 2 the Telecom Regulatory Authority of India Act, 1997 (hereafter the TRAI Act). It was administratively allocated spectrum in 800 MHz band in several circles and the licences issued in its favour are valid.
2. The petitioners have impugned in this writ petition:
(i) clause 10 of the Guidelines for Liberalization of Administratively Allotted Spectrum in 800 MHz and 1800 MHz frequency bands (hereafter the guidelines), contained in No. J-14025/212/2015-CDMA dated November 5, 2015 issued by the Deputy Wireless Advisor to the Government of India;
(ii) a demand notice dated December 22, 2015, whereby payment had been demanded of One Time Spectrum Charges (hereafter the OTSC) as a pre-condition for liberalization at a rate higher than an earlier demand dated March 20, 2013; and
(iii) a letter dated January 5, 2016 of the respondent informing the first petitioner that there is no infirmity in calculation of demand for the OTSC and regretting the prayer for revising it at the 2012-2013 rates.
3. Upon hearing the parties, this Bench by its order dated January 14, 2016 had granted interim relief being prima facie of the opinion that the demand for the OTSC could not have been raised in view of an earlier order dated February 14, 2013 passed in W.P. 2590(W) of 2013. The writ petition was made returnable on January 25, 2016 to enable Mr. Chanda, learned Additional Solicitor General representing the respondent to obtain instructions as well as to advance argument in support of his preliminary objection that the writ petition is not maintainable before this Court in view of the provisions of section 14 of the TRAI Act.
4. Mr. Chanda has contended that the first petitioner is a ‘licensee’ and the respondent a ‘licensor’ within the meaning of clauses (e) and (ea) respectively of sub-section (1) of section 2 of the TRAI Act, and in terms of section 14 of the TRAI Act, the Telecom Disputes Settlement and Appellate Tribunal (hereafter the TDSAT) has been conferred power, inter alia, to adjudicate any dispute between a licensor and a licensee. It is his contention that section 14 of the TRAI Act provides a forum for adjudication of the dispute between the first petitioner and the respondent and in view of existence of such an alternative efficacious remedy, instead of entertaining this petition under Article 226 of the Constitution the petitioners should be relegated to the TDSAT which is capable of determining such dispute.
5. Mr. Chanda has relied on the decision of the Supreme Court reported in (2011) 10 SCC 543 [Union of India and another v. Association of Unified Telecom Service Providers of India and others]. He has further relied on the decisions reported in (2007) 7 SCC 517 [Union of India v. Tata Teleservices (Maharashtra) Ltd.] and (2003) 3 SCC 186 [Cellular Operators Association of India v. Union of India] to contend that the TRAI Act is a self-contained code making provisions for dealing of all disputes arising out of telecommunication services provided in this country and, therefore, this Bench in exercising self-restraint ought to decline interference and leave the petitioners to approach the TDSAT for a decision on their grievance. Finally, reliance has been placed on a decision of recent origin reported in (2015) 6 SCC 773 [Union of India v. Shri Kant Sharma] in support of the contention that a writ petition ought not to be entertained ignoring the original forum and the appellate forum i.e. the Supreme Court, provided by a statute for redress.
6. Answering the preliminary objection, Mr. Chidambaram, learned senior advocate representing the petitioners too has relied on the decision in Association of Unified Telecom (supra).
7. Mr. Chidambaram contended that clause 10 of the guidelines, impugned herein, has the effect of amending the licence granted in
