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SUPREME COURT OF INDIA
G.S. Singhvi, B.S. Chauhan and Fakkir Mohamed Ibrahim Kalifulla, JJ.
Bharat Sanchar Nigam Limited —Appellant
versus
Telecom Regulatory Authority of India and others —Respondents
Civil Appeal No. 5223 of 2010
With Civil Appeal Nos. 951-952 of 2005, Civil Appeal No. 3298 of 2005, Civil Appeal No. 3299 of 2005, Civil Appeal No. 4529 of 2005¸Civil Appeal Nos. 5834-5836 of 2005 Civil Appeal No. 5837 of 2005, Civil Appeal No. 6049 of 2005, Civil Appeal No. 802 of 2006, Civil Appeal No. 2731 of 2006, Civil Appeal No. 2794 of 2006, Civil Appeal No. 3504 of 2006, Civil Appeal Nos. 4965-4966 of 2007, Civil Appeal No. 177 of 2008¸Civil Appeal Nos. 598-599 of 2008, Civil Appeal No. 5184 of 2010, Civil Appeal No. 5873 of 2010¸Civil Appeal No. 6068 of 2010, Civil Appeal No. 6255 of 2010, Civil Appeal No. D28298 of 2010, T.C. (C) No. 39 of 2010 and Civil Appeal Nos. 271-281 of 2011
Decided on 6.12.2013
IMPORTANT POINT
Telecom Disputes Settlement Appellate Tribunal (TDSAT) cannot entertain challenge to regulations framed by Telecom Regulatory Authority of India.
Headnote:(i) Telecom Regulatory Authority of India Act, 1997—Sections 12(4), 13 and 36(1)— Power to make regulations—Power to make regulations under Section 36 is non-delegable—Regulations framed by Authority can be made ineffective or modified by Parliament and by no other body—In exercise of power under Section 36(1), Authority can make regulations which may empower it to issue directions of general character applicable to service providers and others and it cannot be said that by making regulations under Section 36(1) Authority has encroached upon field occupied by Sections 12(4) and 13 of the Act—Power vested in Authority under Section 36(1) to make regulations is wide and pervasive—There is no other limitation on exercise of power by Authority under Section 36(1)—It is not controlled or limited by Section 36(2) or Sections 11, 12 and 13. (Paras 43 to 45)
(ii) Telecom Regulatory Authority of India Act, 1997—Sections 14(b) and 36—Jurisdiction of Telecom Disputes Settlement Appellate Tribunal—In exercise of power vested in it under Section 14(b) of Act, Telecom Disputes Settlement Appellate Tribunal does not have jurisdiction to entertain challenge to regulations framed by Authority under Section 36 of the Act—Aggrieved person shall be free to challenge validity of regulations framed under Section 36 of the Act by filing appropriate petition before High Court. (Paras 64 and 65)
(iii) Words and Phrases—Regulate and Regulation—Power to regulate does not necessarily include power to prohibit, and ordinarily word “regulate” is not synonymous with word “prohibit”—This is true in a general sense and in the sense that mere regulation is not the same as absolute prohibition—Power to regulate carries with it full power over the thing subject to regulation and in absence of restrictive words, power must be regarded as plenary over entire subject—Term ‘regulate’ is elastic enough to include power to issue directions or to make regulations. (Para 31)
G.S. Singhvi, J.—By anORDER 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 videORDER 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 toORDERs 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 videORDER 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. D28298 of 2010 5.1 The delay in filing and re-filing C.A. No. D28298 of 2010 is condoned.
5.2 These appea
