1998 Supreme(Del) 495

High Court Of Delhi
UNION OF INDIA - Appellant
Versus
TELECOM REGULATORY AUTHORITY OF INDIA - Respondent
First Appeal Order 89 of 1998
Decided On : 07/16/1998

Headnote:Telecom Regulatory Authority of India Act, 1997 - Section 2(j) — Government — Meaning of — The expression does not include licensor which could also be distinct from the Government, under the scheme of the Act.

       Section 11,12 & 13 — Functions of authority — Classification of.

       Held:

       TRAIs functions under the Act as pointed out by the Attorney General over multifarious. These can be summed up under five heads namely, (1) Advisory, (2) Regulatory (3) Adjudicatory, (4) Semi Legislative and (5) Ancillary. So far as Clauses (a) (b) (f) & (o) of Section 11(1) are concerned, these deal with advisory functions of the TRAI. Clauses (c) (d) (e) (j) (k) (i) (p) (q) deal with regulatory Junctions of the TRAI. So far as regulatory functions are concerned TRAI can ensure its compliance by issuing directions either under Section 12(4) or Section 13 of the Act. These directions can be issued to service providers and have a binding force. Since licensor is not a Service Provider hence TRAI has no powers to issue directions to the licensor. Section 11(2) deals with legislative functions of the TRAI. Under Section 14(2) inbuilt dispute settlement mechanism is provided. It was, thereforee, urged by the Attorney General that Section 4(1) of the Telegraph Act confers pianary powers upon the Government in the matter oflicensing. Even though the TRAI Act, 1997 came into being yet no amendments have been made to the Telegraph Act. The TRAI having admitted vide the impugned order that the Government is the licensing authority, thereforee, the said pianary powers of the Government cannot be made subordinate to a regulatory authority. Nor could such powers be subject to the provisions of Sub-Section (1) of Section 11. If it is so it would amount to rewriting Section 4 of the Telegraph Act. This was neither the intention of the Legislature while enacting the TRAI Act, 1997 nor permissible. These pianary powers of the Government or for that matter of the delegated authority under Section 4 of the Telegraph Act have been protected under Section 38 of the TRAI Act, 1997. Section 4 has not been made subject to the functions to be performed by the TRAI as stipulated under Section 11(1) of the 1997 Act. Nor any provisions have been made in either of the Acts to indicate that the power to grant license cannot be exercised by the Licensor in the absence of recommendation of the TRAI. Section 11, 12, 13 & 14-Powers of authority — Scope of — It does not affect the power of Government to grant or amend the terms of licence — Its recommendation is not binding on the Government.

       Consequence of acceptance of contention of the respondents would be to add words to Section 4 of the Telegraph Act and to change the basic structure of the Telegraph Act. It would amount to subjecting the power of the Government to the discretion of the TRAI to recommend and thereafter only the Government to act. This amounts to placing the licensing authority i.e. the Government under the control of the regulatory authority thereby curtailing, restricting and circumscribing the power of the Government. In fact, if the reasoning of the TRAI as given in the impugned order as well as the arguments of respondents are accepted i.e. that the recommendation of TRAI is a pre-condition or a pn requisite for the grant of licence, it would lead to horrendous consequences. It would amount to re-writing Section 4 & 8 of the Telegraph Act. Section 11(1) of the TRAI Act is only an empowering section. It does not deal with procedure nor lays down procedural pre-requisite. To my mind, the functions stipulated under Clauses (a) (b) & (f) of Sub-section (1) of Section 11 are recommendatory or advisory in nature. On the other hand expression used in Clauses (c) (d) (e) (g) (h) (i) (p) and (q) of Section 11(1) is couched in mandatory language and relate to service provider including the Government Department which provide service. This can be seen from the expressions used namely "ensure" "regulate" "levy" etc.

       The word "recommend" has to be seen in the context in which it was suggested by the Standing Committee conveying the intention of the Legislature to mean "advise" "suggest" and "counsel", while the quasi judicial function of the grant of license rests with the Government i.e. the licensing authority, which on account of this recommendation or suggestion cannot be abridged or curtailed.

       I have failed to understand how mentioning of the provision of Telegraph Act in the non-obstante clause of Section 11(1) can link the power of the Government to grant license with the function and power of the TRAI under Section 11(1) of this Act. The non-obstante clause has not been used in Section 11(1) to confer over-riding effect and empowering the TRAI to perform the Junction of a licensor. The word "recommendation" used in Section 11(1) is very clear. This I say because in the Bill the functions of TRAI as stipulated under Section IIl(l)(a) (b) & (f) were not there. It was the Standing Committee who suggested amendment and to incorporate Clause (a) (b) & (f) and opined that TRAI be given power to advise the Government with regard to the need and liming of the introduction of new service provider. This advise cannot be equated or can be treated at par with the word "dictate" or "determine". thereforee, the non-obstante, clause used in Section 11 (1) cannot go down nor can restrict the scope of the power of the Government as licensor lt appears the non-obstante clause as incorporated in Section 11(1) of the Act was by way of abundant caution. lt was not by way of limiting the ambit and scope of the planary powers of the Government. lt is not within the province of this Court to interpret the intention of the Legislature differently more so when from the report of the Standing Committee the intention of the Legislature can be clearly inferred.

       We must have regard to the language employed for each individual function in various clauses of Section 11(1) to find out its true meaning and contents. By picking up the expression "regulator" it would not amount to nor would lead us to the conclusion that the word "regulator" controls and alters the meaning of every clause of Section 11 irrespective of its language. TRAI has an important role to play in the telecom, development reforms and its establishment. Its regulatory role is crucial to the promotion of competition in telecom service. At the same its advisory role also assumes importance considering its various facets and acts to be performed. TRAI has exposure to the problems faced by the service providers and know about the ground realities, thereforee, it can render valuable and objective advise to the licensor. But that does not mean that such an advise is binding on the licensor. If the advise of UPSC is not binding the TRAIs powers are not different from that of UPSC.

       The Authority fell in error in concluding that the power of the Government to grant or amend the license is subject to the recommendations of the TRAI or that these recommendations are mandatory in nature. Hence the impugned order of the Authority is hereby set aside. It is further made clear that the dispute regarding the grant or to amend the license by the licensor is not a dispute covered under the provisions of Section 14(2). These are not (he disputes which can be adjudicated by the Authority. These disputes are beyond the purview of Section 14 (2).

       Section 12 & 13 — Directions by authority — Scope of — The directions can only be given to service provider and to the Government.

       The directions envisaged under Section 12(4) and Section 13 of the Act can be issued by the TRAI for the discharge of its functions. Tfiese directions can be issued only to a service provider and not to the licensor. Since Government is not a service provider hence these directions are not binding on it as licensor. On the basis of such directions as stipulated under Section 12(4) or for that matter under Section 13 of the Act the scope of Section 11 (1) cannot be extended nor the same can convert a recommendatory or advisory junction into a mandatory function.

       Section 14(2) — Powers of authority — Scope of — Its adjudicatory powers does not extend to quashing an executive decision.

       Grant or revocation of license by the licensor does not fall under the adjudicatory powers of the TRAI as defined under Section 14(2) of TRAI Act. TRAI has not been conferred power or jurisdiction of a Writ Court (under Article 226 of the Constitution) or a Civil Court to grant specific relief nor it has been empowered to declare the action of the licensing Authority invalid, even assuming that there was a failure on the part of the licensor to comply with Clauses (a) (b) & (f) of Section 11(1) of the TRAI Act.

       Words & Phrases - Recommend — Meaning of.

       The expression "recommend" as defined in the Websters Dictionary means "to advise, to counsel, as recommend that something be done, to speak favourably as suited for some use, function, position etc., to make acceptable or pleasing to suggest, to counsel a course of action and leave its acceptance to that person. "Recommend" implies a favourable or favouring report and precludes an unfavourable or opposing report. Thus "to recommend" is to present ones advise or choice or as having ones approval and involves the idea that another has the final decision.