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2018 Supreme(Mad) 1776
IN THE HIGH COURT OF JUDICATURE AT MADRAS
INDIRA BANERJEE, M. SUNDAR, JJ.
Tata Communications Ltd., Through its Assistant Manager (HR), V. Geetha & Another - Appellants
Versus
Telecom Regulatory Authority of India, Mahanagar Door Sanchar Bhawan, New Delhi & Others - Respondents
W.A. Nos. 283 & 285 of 2017 & C.M.P. Nos. 4479 & 4483 of 2017
Decided on : 02-07-2018
For the Appellants :C.S. Vaidyanathan, Upmanyu Hazarika, P. Chidambaram, Senior Counsels, K. Harishankar, Madhan Babu, Advocates.
For the Respondents:P. Wilson, Senior Counsel, Saketh Singh, Dr. M. Devendran, V.T. Gopalan, Senior Counsel, S. Udayakumar, M.S. Krishnan, Senior Counsel for M/s. Fox Mandal & Associates, Dabal Banerjee, Senior Counsel, Shubharanjani Ananth, Advocates.
For the Intervenor :N. Venkataraman, Senior Counsel for M/s. Gupta & Ravi, Advocate.
Headnote:
Constitution of India,1950 - Article 19(1)(a), 14, 32 226 and 245 - Federal Administrative Procedure Act - TRAI Act Section 36 , 11(1)(b) , 13(4) , 33 and 37 - Tamil Nadu Schools (Regulation of Collection of Fees) Act, 2009 - Indian Telegraph Act, 1885 - Telegraph Act - Section 4(1) - Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949 - Section 3 - Parent Act - Telecommunication Interconnection (Charges and Revenue Sharing First Amendment) Regulation, 1991 - Universal Declaration of Human Rights, 1948 - Promote transparency and accountability - Democratic ideal - Sensitive information - It is clear that Parliament enacted said Act keeping in mind rights of an informed citizenry in which transparency of information is vital in curbing corruption and making Government and its instrumentalities accountable - Act is meant to harmonise conflicting interests of Government to preserve confidentiality of sensitive information with right of citizens to know functioning of governmental process in such a way as to preserve paramountcy of democratic ideal - Preamble would obviously show that Act is based on concept of an open society - Therefore, disclosure of information in regard to functioning of Government must be rule and secrecy an exception justified only where strictest requirement of public interest so demands approach of court must be to attenuate area of secrecy as much as possible consistently with requirement of public interest - Held, learned counsel for appellants contended that before raising national and festival holidays from their original number under Parent Act to number of days contemplated by amending Act, industries or their representatives should have been given an opportunity of a hearing - This argument is wholly untenable - Principles of natural justice cannot be imported in matter of legislative action - If legislature in exercise of its plenary power under Article 245 of Constitution, proceeds to enact a law those who would be affected by that law cannot legally raise a grievance that before law was made, they should have been given an opportunity of a hearing - This principle may in limited cases be invoked in case of subordinate legislation specially where main legislation itself lays down that before subordinate legislation is made a public notice shall be given and objections shall be invited as is usually case for example in making of municipal bye-laws - But principle of natural justice, including right of hearing, cannot be invoked in making of law either by Parliament or by State Legislature - Court find that Right to Information Act, 2005 has gone a long way to strengthen democracy by requiring that the Government be transparent in its actions so that an informed citizenry is able then to contain corruption and hold Governments and their instrumentalities accountable to people of India - Preamble to the said Act in ringing terms
M. SUNDAR, J.
1. Instant intra-court appeals (two writ appeals) under Clause 15 of the Letters Patent are directed against a common order made by a learned Single Judge of this Court, being common order dated 11.11.2016 made in W.P.Nos.1875 of 2013 and 3652 of 2013. W.A.No.283 of 2017 is directed against W.P.No.1875 of 2013 and W.A.No.285 of 2017 is directed against W.P.No.3652 of 2013. We propose to dispose of both these intra-court appeals by this common order.
2. Facts that are absolutely essential for understanding and appreciating our order are set out infra under the caption 'Facts in a nutshell'.
3. Facts in a nutshell:
3(a) For the sake of brevity, clarity and convenience, following abbreviations and short forms are used in this order:
(i) 'Tata Communications Ltd.' (appellant in W.A.No.283 of 2017) is referred to as 'TATAs';
(ii) 'Bharti Airtel Ltd.', (appellant in W.A.No.285 of 2017) is referred to as 'Bharti';
(iii) 'Telecom Regulatory Authority of India' (Respondent No.1 in both writ appeals), is referred to as 'TRAI';
(iv) 'Bharat Sanchar Nigam Ltd.' (Respondent No.2 in both writ appeals) is referred to as 'BSNL';
(v) 'Association of Competitive Telecom Operators' is referred to as the 'said Association' (Respondent No.3 in both appeals);
(vi) 'Reliance Communications Ltd.' (Respondent No.4 in both writ appeals) is referred to as 'RCL';
(vii) 'Reliance Jio Info Comm Ltd.,' intervenor in both writ appeals is referred to as RJIL;
(viii) 'The Telecom Regulatory Authority of India Act, 1997' is referred to as 'TRAI Act';
(ix) 'International Telecommunication Access To Essential Facilities At Cable Landing Stations Regulations, 2007 (5 of 2007)' dated 7.6.2007 is referred to as 'CLS Regulation';
(x) 'International Telecommunication Access To Essential Facilities At Cable Landing Stations (Amendment) Regulations, 2012 (No.21 of 2012)' dated 19.10.2012 is referred to as 'CLS Amendment Regulation';
(xi) 'The International Telecommunication Cable Landing Stations Access Facilitation Charges and Co-location Charges Regulations, 2012 (No.27 of 2012)' dated 21.12.2012 is referred to as 'CLS Co-location Charges Regulation';
(xii) 'CLS Regulations', 'CLS Amendment Regulation' and 'CLS Co-location Charges Regulation' are collectively referred to as 'impugned Regulations';
(xiii) 'Cable Landing Station' and 'Cable Landing Stations' are referred to as 'CLS' and 'CLSs' respectively;
(xiv) 'Department of Telecommunications' is referred to as DOT.
(xv) 'Statement of Objects and Reasons' is referred to as SOR'.
3(b) To put it in very simple terms, the entire matter pertains to a very complex technology and technical equipment by which various communication service providers in India are linked to the rest of the world by way of submarine fibre cables, which run beneath the sea.
3(c) The diagrammatic depiction of this complex system as given by Bharti at the hearing is reproduced hereinbelow:
3(d) On the plea that the above diagrammatic depiction may not be completely correct, TRAI has placed before us another diagrammatic depiction and we deem it appropriate to reproduce the same also. The diagrammatic depiction as given by TRAI is as follows:
3(e) What we are concerned with in the instant writ appeals are CLSs and particularly charges payable by the access seekers to owners of CLSs.
3(f) In sum and substance, the impugned Regulations regulate and fix charges payable by access seekers to the owners of CLSs.
3(g) In and by the 2007 CLS Regulations, TRAI brought in a regime of self Regulation with regard to CLS owners. To be noted, under this CLS Regulation, TRAI approved the rates that are to be charged by the CLS owners from the access seekers, but did not fix the rates. However, this CLS Regulation dated 07.06.2007 is pursuant to an amendment to licence agreement of TATAs with DOT dated 05.02.2004. We are informed that this amendment was brought in on 15.01.2007.
3(h)2012 CLS Amendment Regulation, authorized TRAI to prescribe charges for CLSs. In ot
