The power to regulate and the power to make regulations possessed by the regulator under a statute co-exist and that the regulation making power is in no way limited by the administrative powers.

Ms. G.ROHINI, CHIEF JUSTICE

1. The petitioners are Telecom operators/Associations of telecom operators who offer telecommunication services.

2. This petition is filed challenging the validity of the Telecom Consumer Protection (Ninth Amendment) Regulations, 2015 notified on 16.10.2015 by the Telecom Regulatory Authority of India (for short TRAI‘) in exercise of the powers conferred by Section 36 read with Section 11(1)(b)(v)(i) of Telecom Regulatory Authority of India Act, 1997.

3. By the said Amendment dated 16.10.2015 which has come into force w.e.f. 01.01.2016, every originating service provider providing cellular mobile telephone service is made liable to credit the calling consumer i.e. a consumer who initiates a voice call, by one rupee for each call drop within its network for a maximum of three call drops per day. Further the service provider shall also provide the details of the amount credited to the calling consumer within 4 hours of the occurrence of call drop through SMS/USSD message. In case of post paid consumers such details of amount credited in the account of calling consumer shall be provided in the next bill.

4. Before adverting to the various grounds upon which the impugned amendment is assailed, it may be mentioned that Telecom Regulatory Authority of India, Act 1997 (for short the Act‘) has been enacted to provide for the establishment of TRAI and Telecom Disputes Settlement and Appellate Tribunal (for short the TDSAT‘) to regulate the telecommunication services, adjudicate disputes and dispose of appeals and to protect the interests of service providers and consumers of the telecom sector, to promote and ensure orderly growth of telecom sector and for matters connected therewith or incidental thereto.

5. In terms of Section 3 of the Act, Telecom Regulatory Authority of India (TRAI) has been established and its powers and functions have been enumerated in Chapter III consisting Section 11 to Section 13. Section 36 of the TRAI Act empowers TRAI to make regulations consistent with the Act and the rules made thereunder to carry out the purposes of the Act. In exercise of the powers so conferred, TRAI has made regulations providing for various matters. In the present case, we are concerned with two sets of such regulations, namely, Standards of Quality of Service of Basic Telephone Service (Wire-line) and Cellular Mobile Telephone Service Regulations, 2009 (for short Quality of Service Regulations‘) and Telecom Consumers Protection Regulations, 2012 (for short Consumer Regulations‘).

6. By virtue of the impugned Telecom Consumer Protection (Ninth Amendment) Regulations 2015 (hereinafter referred to as impugned regulations‘), TRAI has amended the Telecom Consumers Protection Regulations, 2012 as under;

“2. In regulation 2 of the Telecom Consumers Protection Regulations, 2012 (hereinafter referred to as the principal regulations), after clause (ba), the following clauses shall be inserted, namely:-

(bb) “call drop means a voice call which, after being successfully established, is interrupted prior to its normal completion; the cause of early termination is within the network of the service provider;

(bc) “calling consumer means a consumer who initiates a voice call;

3. After Chapter IV of the principal regulations, the following Chapter shall be inserted, namely;-

“CHAPTER V

RELIEF TO CONSUMERS FOR CALL DROPS

16. Measures to provide relief to consumers. - Every originating service provider providing Cellular Mobile Telephone Service shall, for each call drop within its network,

(a) credit the account of the calling consumer by one rupee:

Provided that such credit in the account of the calling consumer shall be limited to three dropped calls in a day (00:00:00 hours to 23:59:59 hours);

(b) provide the calling consumer, through SMS/USSD message, within four hours of the occurrence of call drop, the details of amount credited in his account; and

(c) In case of post-paid consumers, provide the details of