IMPORTANT POINT
The court affirmed that binding precedents from the Supreme Court prevent reopening challenges to regulations, while allowing for challenges to Tariff Orders before TDSAT.

JUDGMENT :

(A. Muhamed Mustaque, J.)

The appellants filed a writ petition seeking the following reliefs:

i. Issue a writ of certiorari or any other appropriate writ, order, or direction setting aside Clause 3 of 2024 Tariff Order;

ii. Issue a writ of certiorari or any other appropriate writ, order, or direction setting aside Fifth Proviso to Clause 3(3) of the 2017 Tariff Order;

iii. Issue a writ of certiorari or any other appropriate writ, order, or direction setting aside Clause (a) of Second Proviso to Regulation 6(1) of 2017 Regulations; and

iv. Issue such other appropriate writ, order, or direction which this Hon’ble Court may deem fit and just in the circumstances of this case.

The relief sought above indicates that the appellants challenged clause (a) of the second proviso to Regulation 6 of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017. They also contested the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 (hereinafter referred to as the Tariff Order). This Regulation, formulated by the Telecom Regulatory Authority of India (TRAI) under Section 36 of the TRAI Act, holds statutory colour. The Tariff Order represents a decision by TRAI and, therefore, is subject to judicial review.

2. In Bharat Sanchar Nigam Limited v. Telecom Regulatory Authority of India and Others [(2014) 3 SCC 222], the Hon'ble Supreme Court ruled that the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) lacks jurisdiction to hear challenges against regulations framed by TRAI under Section 36 of the TRAI Act. The learned Single Judge who heard the appellants' challenge ruled that the writ petition was not maintainable, as the same petitioners had previously raised similar challenges before the Madras High Court and, ultimately, the Supreme Court. In Star India Private Limited v. Department of Industrial Policy and Promotion and Others [(2019) 2 SCC 104], the Supreme Court ultimately upheld the validity of the same regulation. Consequently, the learned Single Judge dismissed the writ petition, declaring it not maintainable. However, during the dismissal, the Judge noted that a challenge against the Tariff Order is indeed maintainable before TDSAT. After evaluating the matter, the Judge concluded that the contested provision in the Tariff Order cannot be challenged on the basis that it violates Article 14 of the Indian Constitution.

3. We hold the view that the writ petition was maintainable in as much as there is a specific challenge to the regulation. We are also of the view that the learned Single Judge had erred in going into the merit of the challenge against the Tariff Order after observing that the writ petitioners had an efficacious alternate remedy challenging the provisions before the TDSAT. However, we find that this matter ought not have been entertained by this court for the reasons to be stated hereafter.

4. The challenge to regulation earlier made by the writ petitioners attained finality by the judgment of the Supreme Court reported in Star India’s case (supra). The very same regulation is questioned in the writ petition. This Court cannot entertain a challenge to the same regulation as it would amount to reopening the judgment of the Supreme Court.

5. The learned Senior Counsel for the first appellant, Shri Amit Sibal, cited the Supreme Court judgment in Mathura Prasad Bajoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoy [(1970) 1 SCC 613], arguing that the principle of res judicata does not apply if a specific issue was not raised in prior litigation. According to Shri Sibal, the previous challenge addressed the regulation in the context of the Copyright Act, 1957, rather than on broader grounds. The current challenge, however, contends that regulations are challenged in the light of the Tariff Order. Further submitted that Tariff order infringes on the petitioners' fundamental rights under Article 19(1)(a) of t