# CELLULAR OPERATORS ASSOCIATION OF INDIA AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [2002] Supp. 5 S.C.R. 222
- **Court:** Supreme Court of India
- **Decided:** 2002-12-17
- **Case number:** Civil Appeal No. 3092 of 2002
- **Bench:** G.B. Pattanaik, H.K. Sema, S.B. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/cellular-operators-association-of-india-and-ors-v-union-of-india-and-ors-18848
- **Pages:** 46

## Headnote

c
Telecom Regulatory Authority of India Act, I997:
Sections I 4 and I 8:
Central Government on consideration of recommendations ofTRAI and
experts body permitting use of Wireless looping System with limited mobility
to service provides-Challenged by appellants-Negatived by Tribunal-On
appeal, Held, introduction of Wll with limited mobility is in consumer interest
D which would also increase the tele-density in the country and as such cannot
be inte1fered with by this Court within the limited power under Section I 8 of
the Act-However, non-consideration of relevant materials on the issue of
level playing field and absence of any finding vitiate the ultimate decision of
the Tribunal-Matter remanded back to Tribunal for reconsideration on the
question of level playing field-Directions issued.
E
Jurisdiction and power of Appellate Tribunal vis-a-vis Supreme CourlHeld, Power of Appellate Tribunal is quite wide and Supreme Court in exercise
of its original or appellate power could not limit the jurisdiction of Tribunal
as provided under the statute-It must give due consideration lo the
recommendations of TRAI ai1d an expert body-Power of Supreme Court is
F circuinscribed by provisions under Section JOO CPC to substantial question of
law arising from judgment of the Tribunal-Though Tribunal has much wider
jurisdiction than Supreme Court such jurisdiction cannot be held lo be
supervisory jurisdiction-Civil Procedure Code, J908; Section JOO.
G
Telecom Regulatory Authority of India, on receipt of the requisition
from the Government, prepared consultation paper and obtained
suggestions from stake holders including appellant, on the question of
permitting WLL with limited mobility and submitted its recommendations
to the Government-Telecom Regulatory Authority of India on
reconsideration of the matter on the issues of use of hand-held status in
H
222
CELLULAR OPERA TORS ASSOCIATION OF INDIA v. U.0.1.
·223
wireless in Local Loop System, limited mobility by use of WLL system, A
level playing field and convergence of fixed and mobile services. TRAI
submitted re-considered recommendations for wireless in Local Loop
which were considered by the Prime Minister and after taking into
consideration the grievances made by the appellant, a Committee of
Experts (GOT-IT) was constituted for an expert opinion on these isspes. B
Its final report was accepted by the Prime Minister. Cellular Operators
Association of India and others challenged the decision of the Government
permitting the Fixed Services Providers-respondents to offer WLL with
limited mobility and also assailed the recommendations of TRAI before
the Telecom Disputes Settlement and Appellate Tribunal, which was
rejected by the Tribunal. Hence the present appeal.
It was contended for the i;ppellants that the Tribunal did not make
c
any reference to highly debatable issues on important questions of law
which required to be interfered with; that in arriving at such decision,
accepting recommendations of TRAI, it was obligatory for the
Government to act in accordance with the provisions of the Act and such D
non-compliance vitiates the ultimate decision; that the Tribunal failed to
answer the question whether WLL with limited mobility is a substitution
of cellular operation; that the Tribunal did not answer the question about
the permissibility of WLL with limited mobility under NTP-1999; that
there was neither appreciation of the material nor any finding has been E
given by the Tribunal on the issue of level playing field and as such the
judgment of the Tribunal was liable to be interfered with; that the
Tribunal assumed several things without any basis in its judgment; that
the Tribunal disposed of the matter on the ground of consumer interest
and not by focusing its attention to several infirmities with the decision of
the Government; that decision of the Government permitting the FSPs to F
have WLL with limited mobility was an arbitrary action and Tribunal
committed error in not examining

## Text

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A
CELLULAR OPERATORS ASSOCIATION OF INDIA AND ORS.
v.
UNION OF INDIA AND ORS.
DECEMBER 17, 2002
B
[G.B. PATTANAIK, CJ., H.K. SEMA AND S.B. SINHA, JJ.]
c
Telecom Regulatory Authority of India Act, I997:
Sections I 4 and I 8:
Central Government on consideration of recommendations ofTRAI and
experts body permitting use of Wireless looping System with limited mobility
to service provides-Challenged by appellants-Negatived by Tribunal-On
appeal, Held, introduction of Wll with limited mobility is in consumer interest
D which would also increase the tele-density in the country and as such cannot
be inte1fered with by this Court within the limited power under Section I 8 of
the Act-However, non-consideration of relevant materials on the issue of
level playing field and absence of any finding vitiate the ultimate decision of
the Tribunal-Matter remanded back to Tribunal for reconsideration on the
question of level playing field-Directions issued.
E
Jurisdiction and power of Appellate Tribunal vis-a-vis Supreme CourlHeld, Power of Appellate Tribunal is quite wide and Supreme Court in exercise
of its original or appellate power could not limit the jurisdiction of Tribunal
as provided under the statute-It must give due consideration lo the
recommendations of TRAI ai1d an expert body-Power of Supreme Court is
F circuinscribed by provisions under Section JOO CPC to substantial question of
law arising from judgment of the Tribunal-Though Tribunal has much wider
jurisdiction than Supreme Court such jurisdiction cannot be held lo be
supervisory jurisdiction-Civil Procedure Code, J908; Section JOO.
G
Telecom Regulatory Authority of India, on receipt of the requisition
from the Government, prepared consultation paper and obtained
suggestions from stake holders including appellant, on the question of
permitting WLL with limited mobility and submitted its recommendations
to the Government-Telecom Regulatory Authority of India on
reconsideration of the matter on the issues of use of hand-held status in
H
222
CELLULAR OPERA TORS ASSOCIATION OF INDIA v. U.0.1.
·223
wireless in Local Loop System, limited mobility by use of WLL system, A
level playing field and convergence of fixed and mobile services. TRAI
submitted re-considered recommendations for wireless in Local Loop
which were considered by the Prime Minister and after taking into
consideration the grievances made by the appellant, a Committee of
Experts (GOT-IT) was constituted for an expert opinion on these isspes. B
Its final report was accepted by the Prime Minister. Cellular Operators
Association of India and others challenged the decision of the Government
permitting the Fixed Services Providers-respondents to offer WLL with
limited mobility and also assailed the recommendations of TRAI before
the Telecom Disputes Settlement and Appellate Tribunal, which was
rejected by the Tribunal. Hence the present appeal.
It was contended for the i;ppellants that the Tribunal did not make
c
any reference to highly debatable issues on important questions of law
which required to be interfered with; that in arriving at such decision,
accepting recommendations of TRAI, it was obligatory for the
Government to act in accordance with the provisions of the Act and such D
non-compliance vitiates the ultimate decision; that the Tribunal failed to
answer the question whether WLL with limited mobility is a substitution
of cellular operation; that the Tribunal did not answer the question about
the permissibility of WLL with limited mobility under NTP-1999; that
there was neither appreciation of the material nor any finding has been E
given by the Tribunal on the issue of level playing field and as such the
judgment of the Tribunal was liable to be interfered with; that the
Tribunal assumed several things without any basis in its judgment; that
the Tribunal disposed of the matter on the ground of consumer interest
and not by focusing its attention to several infirmities with the decision of
the Government; that decision of the Government permitting the FSPs to F
have WLL with limited mobility was an arbitrary action and Tribunal
committed error in not examining that aspect; that in regard to National
Telecom Policy-1999 any changes in the licence agreement tantamount to
viola.tion of recommendations; that the jurisdiction of the Tribunal is wide
enough and not circumscribed by the jurisdiction of a Court under Article G
226; that the Tribunal committed serious error by restricting its
jurisdiction and that object of the amended provision in the Act
strengthening the authority would be frustrated if the dispute regarding
level playing field was not answered by the Tribunal on the ground of
public interest.
H
A
B
224
SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
On behalf of the respondents, it was submitted that Courts generally
grant greater latitude to the decision of expert bodies like TRAl/Tribunal
and judicial scrutiny in such matters would not extend to extending the
decision on the ground that it was unwise or unscientific or inappropriate
'
or a better decision could have been given; that it would not be appropriate
either for the Tribunal or for this Court to interfere with the decision of
the Government arrived at after the recommendations/deliberations of
expert bodies like TRAI and GOT-IT unless any statutory infirmity was
:fbund or .itw asestab.1i<he:i that the de:::is:bn was vrntrrl by malafides; that
appellants have been granted several concessions in the matter of revenue
share percentage which, according to the Tribunal, fully compensated the
C cellular operators and answers the level playing field; that the Tribunal
had answered all the questions in its findings that the jurisdiction of this
Court is restricted to interference only on substantial question of law; that
since Tribunal has found that introduction of WLL with limited mobility
would subserve the consumer interest as well as increased tele-density of
rural and semi-urban areas, this Court should not interfere with such
D conclusions on the facts in exercise of powers under Article 136; that with
the advancement in the technology, the licence terms permitting WLL,
huge compensation granted to the appellants and policy decision of the
Government were four basic reasons for which the Tribunal rightly did
not interfere with the decision of the Government; and that the decision
E ofTRAI as well as that of the Government was a well-considered decision
and the same need not be interfered with either by the Tribunal or by
this Court.
On behalf of the consumers, it was submitted that both the TRAI
and the Government took into consideration consumer interest by
F providing benefits of least expensive services as well as technology
advancement and even the Tribunal in the impugned decision affirmed
the same. Hence, ultimate conclusion of the Tribunal should not be
interfered with.
G
Allowing the appeal, the Court
HELD: (Per Pattanaik, CJ/., for himself and Serna, J.)
1.1. Notwithstanding the fact that the powers of this Court under
Section 18 of Telecom Regulatory Authority of India Act is circumscribed
by the applicability of Section 100 of the Code of Civil Procedure, though
H there has been no formulation of the question, as required under sub-
CELLULAR OPERA TORS ASSOCIATION OF INDIA v. U.0.1.
225
section (4) of Section 100, but at any rate, it is only a substantial question A
of law arising out of the order of the Tribunal, which can be urged in the
appeal. (240-B, C]
1.2. There is no dispute with the general proposition that when an
appeal is provided under a statute against the decision of an expert body,
notwithstanding the absence of any restriction for the exercise of that B
appellate power, the appellate Court would be reluctant to interfere with
the findings and conclusions of the expert body unless it is so warranted
either on the ground that the finding of the expert body is perverse or is
based on no evidence or suffers from any glaring infirmity on account of
which no reasonable man could come to that conclusion. The appellate C
Court indeed would be loath to interfere with the findings arrived at by
an expert body on the basis of re-evaluation of the materials or even if an
alternative conclusion is possible. 1244-B, C, DI
Tata Iron & Steel Co. Ltd. v. Union of India and Anr., 119961 9 SCC
709, referred to.
D
1.3. The Statement of Objects and Reasons would indicate that to
increase the investors' confidence and to create a level playing field
between the public and the private operators, suitable amendment in the
Telecom Regulatory Authority of India Act, 1997 was brought about and
under the amendment, a Tribunal was constituted for adjudicating the E
disputes between a licensor and a licensee, between two or more service
providers, between a service provider and a group of consumers and also
to hear and dispose of appeal against any direction, decision or order of
the Authority. The power of that Tribunal has to be adjudged from the
language conferring that power and it would not be appropriate to restrict F
the same on the ground that the decision which is the subject matter of
challenge before the Tribunal was that of an expert body. It is true that
the Telecom Regulatory Authority of India as well as GOT-IT comprises
of experts, and on their advice Prime Minister finally took the decision,
but that would not in any way restrict the power of the Appellate Tribunal
under Section 14 of the Act, even though in the matter of appreciation G
though. the Tribunal would give due weight to such expert advice and
recommendations. (245-D, E, F, G, H; 246-AI
1.4. Having regard to the very purpose and object for which the
Appellate Tribunal was constituted and having examined the different
provisions contained in Chapter IV, more particularly the provision H
226
SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A dealing with ousting the jurisdiction of Civil Court in relation to any
matter which the Appellate Tribunal is empowered by or under the Act,
as contained in Section 15 of the Act, the power of Appellate Tribunal is
quite wide and the decisions of this Court dealing with the power of a
Court, exercising appellate power or original power, will have no
application for limiting the jurisdiction of the Appellate Tribunal under
B the Act. Since the Tribunal is the original authority to adjudicate any
dispute and since the Tribunal has to hear and dispose of appeals against
the directions, decisions or order of TRAI, it is difficult to import the selfcontained restrictions and limitations of a Court under the Judge-made
law. [246-A, B, C, DI
c
1.5. The jurisdiction of the Tribunal under Section 14 cannot be held
to be a supervisory jurisdiction, in view of the language of the statute as
well as the fact that it is the only forum for redressing the grievance of
an aggrieved party inasmuch as the appellate jurisdiction of this Court is
only on a substantial question of law and the jurisdiction of Civil Court
D for filing a suit is also ousted. The Tribunal has the power to adjudicate
any dispute while answering the dispute, due weight has to be given to
the recommendation ofTRAI, which consists of experts. The Tribunal also
committed yet another error in holding that the jurisdiction of the
Appellate Tribunal cannot be wider than that of the Supreme Court. A
E bare comparison of the provisions of Section 14 of the Act, which confers
jurisdiction on the Triburral and Section 18, which confers jurisdiction on
the Supreme Court, would unequivocally indicate that the Tribunal has
much wider jurisdiction than the jurisdiction of this Court under Section
18 of the Act, as this Court would be entitled to interfere only on a
substantial question of law, which arises from the judgment of the Tribunal
F and not otherwise. [249-A, B, C, DI
1.6. The recommendations made by TRAI on issue relating to WLL
with limited mobility indicate that the entire endeavour of TRAI has been
to ensure that the interest of consumers remains the foremost test of any
option being acceptable or unacceptable, such interests being sustainable
G long-term interests in terms of cost and quality for the individual user and
growth, accessibility and the resultant tele-density for the masses. Ther.e
is no reason to deny a facility as long as the likely adverse impact on level
playing field is kept in view and ways can be found to mitigate the same.
TRAI also observed that with the acceptance of migration to NTP-1999,
H the cellular mobile service operators have accepted that their markets will
CELLULAR OPERA TORS ASSOCIATION OF INDIA''· U.0.1.
227
no more be protected for them by the terms of their licences and NTP- A
1999 as well as recent policy announcements which acknowledge greater
competition as the policy norm in both basic and cellular mobile sectors
a11d increased competition, therefore, cannot be denied. But it will have
to be ensured that such compensation is generated without making the
level playing field uneven. TRAI also recommended that revenue share B
as licence for the mobile operators may be prescribed at 12% of the annual
revenue, which would mitigate the grievance of loss of market, which the
mobile operators have to face as a result of the introduction of WLL
services with limited mobility by basic service operators. The ultimate
recommendation of TRAI was that WLL with limited mobility should be
provided as part of the basic service licence. (247-G-H; 248-A, B, C, D( C
1.7. The Government recognized the advantages of limited mobility
for fixed service operators to achieve quick roll-out of networks and
cheaper service to the customers and it accordingly formulated the points
of•reference to the group on convergence. The formulation also indicates
the anxiety of the Government to ensure faster achievement of the targets D
of tele-density as well as rural and remote area telephony at cheaper and
affordable rates after introduction of limited mobility. It, however,
unequivocally stated that the.same .must.be consistent with the principle
of level playing field among different categories of operators. (248-E, F(
I .8. Notwithstanding the fact that the conclusion of the Tribunal that E
introduction of WLL (M) is in the interest of the consumer and a consumer
would be able to get the services at a much cheaper rate, which will
ultimately increase the tele-density in the country, it being a conclusion
on consideration of materials, cannot be interfered with by this Court
within the limited power under Section 18. But non-consideration of F
relevant materials on the issue regarding level playing field and absence
of any finding by the Tribunal on that score would vitiate the ultimate
decision. The bald conclusion of the Tribunal that the cellular operators
have already been compensated in various ways and the erosion of profits
has also been taken by the entry of the fourth-cellular operator, cannot
be held to be a conclusion on the issue of level playing field. Hence the G
matter is remitted to the Tribunal for re-consideration with special
emphasis on the issue of level playing field. The fixed service operators
will, however, be bound by the ultimate decision to be given by the
Tribunal. (250-C, D, E, F, G, HI
H
228
SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A
Per Sinha, J. (Supplementing) :
I.I. The Tribunal arrived at certain findings without application of
its mind on various vital issues including the issue of its jurisdiction.
Tribunal failed to assign sufficient or cogent reasons in support of its
findings. In relation to some issues, no reason has been assigned. Some
B issues although noticed have not been adverted to. Some issues have even
not been noticed. The impugned order of the TDSAT does not fulfil the
criteria of a judgment. Even as an appellate authority the TDSAT was
required to comply with the principles of or analogous to the provisions
of Order 41 Rule 33 of the Code of Civil Procedure.
c
(251-F, G, H; 252-A-H; 253-A-H; 254-A-F(
Ba/raj Taneja and Anr. v. Sunil Madan and Anr. (1999) 8 SCC 396;
Union of India and Ors. v. Manager, Mis. Jain & Associates, (2001 ( 3 SCC
277 and Rattan Dev v. Pasam Devi, (2002( 7 SCC 441, relied on.
D
1.2. TDSAT was required to exercise its jurisdiction in terms of
Section 14A of the Act. It is an expert body and its jurisdiction is wide
having regard to sub-section (7) of Section 14A. Its jurisdiction extends
to examining the legality, propriety or correctness of a direction/order or
decision of the authority in terms of sub-section (I) thereof. Its approach
being on the premise that its jurisdiction is limited or akin to the power
E of judicial review is wholly unsustainable. It failed to take into
consideration the amplitude of its jurisdiction and thus misdirected itself
in law. If a jurisdictional question or the extent thereof is disputed before
a Tribunal, the Tribunal must necessarily decide it unless the statute
provides otherwise. (254-G, H; 255-A, B, C, DJ
F
Union of India v. Parma Nanda, (1989( 2 SCC 177, referred to.
Judicial review of Administrative Law by H. WR. Wade & C.F. Forsyth,
page No. 260, referred to.
I
1.3. The rule as regards deference to expert bodies applies only in
G respect of a reviewing Court and not to an expert Tribunal. It may not
be the function of a Court exercising power of judicial review to act as a
super-model. (256-C-G)
H
Administrative Law by Bernard Sehwartz, 3rd edition, para 10./ page
625 and 'Jurisdiction and Illegality' by Amnon Rubinstein, referred to.
-
CELLULAR OPERA TORS ASSOCIATION OF INDIA v. U.0.1
229
1.4. Statutory recommendations made by regulatory bodies are A
normally accepttd by the Central Government, as a result of which the
rights and obligations of the parties may seriously be affected. On this
premise the Parliament created an independent expert Tribunal which may
interfere with the finding of fact, finding of law or a mixed question of
law and fact of the Authority. Succinctly stated the jurisdiction of the B
Tribunal is not circumscribed in any manner whatsoever. 1257-A, B, q
Union of India v. Parma Nanda, 119891 2 SCC 177, referred to.
1.5. When jurisdiction upon a Court or a Tribunal is conferred by
a statute, the same has to be construed in terms thereof and not otherwise.
The power of this Court as also the High Court although is of wide C
amplitude, certain restrictions by way of self-discipline are imposed.
Ordinarily the power of judicial review can be exercised only when
illegality, irrationality or impropriety is found in decision making process
of the authority. 1257-F, G; 258-A-HJ
West Bengal Eleclricity Regulatory Commission v. C.£.S.C. Lid., 120021 D
7 SCALE 217, relied on.
Universal Camera Corporation v. Nalional Labour Relations Board,
(340 US 4741, relied on.
1.6. Sub-section (7) of Section 14 of the Act confers a wide E
jurisdiction upon the Tribunal. The Tribunal being an expert body is
entitled to exercise its appellate jurisdiction both on fact as also in law
over a decision of order/decision/direction of the Authority. It should have
borne in mind that its decision on fact and law is final and appeal lies to
this Court in terms of Section 18 of the Act only on substantial questions p
of law. It was obliged to determine the questions of law and facts so as to
enable this Court to consider the matter if any substantial question of law
arises on the face of the judgment. (259-B, C, D[
Union of India v. Tarachand Gupta & Bros., 11971 J I SCC 486 and
Union of India and Anr. v. Paras Laminates (P) Ltd, 1199014 SCC 453, relied G
on.
,,,.
Permian Basin Area Rate Cases, (390 US 747, 20 L Ed. 2d 3121,
referred to.
H
230
SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A
t.7. The power of this Court under Section 18 of the Act cannot be
equated Witlt the power of judicial review. As this Court will be concerned
with a substantial question of law arising in the case, its jurisdiction would
not be restricted to illegality, irrationality or procedural impropriety in
the decision making process. TDSAT, therefore, has posed absolutely a
B wrong question and thus its impugned decision suffers from a misdirection
in law. (261-C-E(
1.8. The Tribunal proceeded to decide the issues only from the angle
of consumers' interest. Consumers' interest is only one of the relevant
'
'
factors. It by itself cannot be decisive. Consumers' interest is required to
C be taken into consideration only when it is found that the actions of the
Central Government as also the recommendation of Authority were within
their respective jurisdiction. (264-D-EI
1.9. TDSA T proceeded on the basis that the Central Government is
entitled to change its own policy decision without taking into consideration
D the fact that according to the Central Government itself it was merely a
'fine tuning of the policy' and not a change of policy. The jurisdiction of
the Central Government to effect change in the policy decisions was also
in question. If a national policy had been adopted by the Cabinet, having
regard to the provisions contained in Section 14 of the General Clauses
Act, although a change in the policy would be permissible, but the
E procedure laid down therefor was required to be followed. This aspect of
the matter has also not been considered by the TDSA T.
1264-E-F-G-H; 265-A-CI
Union of India and Ors. v. Dinesh Engineering Corporation and Anr,.
F 1200118sec491 and Home Secretmy, U.T. of Chandigarh and Anr. v.
Darshjit Singh Grewal and Ors., 119931 4 SCC 25, relied on.
t. IO. As regards the level playing field, TDSAT did not refer to a
large number of materials at all. It took a wrong decision that the
appellants had conceded the power of the Central Government in the
G matter of change of policy and furthermore agreed thereto in the event
its offers are satisfied. Most of the findings recorded by TDSAT are not
supported by any cogent reason. It arrived at some findings without
referring to any material on records. (265-F-GI
1.1 t. Tribunal failed to notice that the requirement of increasing teleH density in rural areas was ilot in question. What was questioned was that
CELLULAR OPERATORS ASSOCIATION OF INDIA v. U.0.1.
231
encroachment by the FSPs in the area which is within th~ exclusive A
privilege of the cellular operators having regard ,to the provision of the
NTP-99 and the terms and conditions of the licences issued to them. It
also failed to arrive at any finding as to whether the concessions given to
the appellants by the Central Government were asked for by them or not
and/or whether only because they received such concessions, they were
estopped or precluded from raising the issues. TDSAT further failed to B
take into consideration as to whether the terms of offer made to the
appellants for providing fixed service were similar to those offered to the
fixed service providers or not. Furthermore, the issue relating to the grant
of concessions to the appellants may be held to be redundant if the
purported decision of the Central Government or the recommendations C
of the Authority were illegal and without jurisdiction. (266-A-D(
2. It would be inappropriate for the Court to substitute itself for the
statutory authorities to decide the matter. Hence there is no need to enter
into the merit of the case. (266-F)
State of West flengal and Ors. v. Nuruddin Mallick and Ors., I 1998) 8
sec 143, relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3092 of
2002.
From the Judgment and Order dated 15.3.2002 of the Telecom Disputes,
Appellate and Settlement Tribunal, New Delhi in P.No. I of 200 I.
WITH
C.A. Nos. 3123, 3214 and 3300 of 2002.
D
E
F
Soli J. Sorabjee, Attornery General, Mukul Rohtagi, Additional Solicitor
General, P. Chidambaram, C.S. Vaidyanathan, Gopal Subramanium, Ram
Jethmalani, Jaideep Gupta, Dr. A.M. Singhvi, Ashok H. Desai, P.N. Mishra,
Manul Bajpai, Ms. lndu Malhotra, Kashi Visheshwar, Praveen Thomas, Gopal
Jain, R.N. Karanjawala, Ms. Ruby Singh Ahuja, Ms. Meghna Mishra, Manik
Karanjawala, Ms. Bina Gupta, Ms. Vanita Bharagava, Ms. Garima Dewan, G
Ms, Divya Roy, Jitendra Acharya, Avinash Modi, S. Mehlwal, N. Mahabir,
Manish Singhvi, Sunil Mathews, Anand Misra, Ashim Sud, Ajay Sharma, P.
Parmeshwaran, Ramji Srinivasan, V. Rajkumar, Yogesh Gupta, Amit Bhandari,
Rajiv Mehta, Milen Sathe, Ramesh Babu M.R., Rudreshwar Singh, Tapesh
Singh, Manish Tiwari, Shishir Pinaki and Sanjay Jain for the appearing parties. H
232
SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A
The Judgments of the Court were delivered by
PATTANAIK, CJ. These appeals are under Section 18 of the Telecom
Regulatory Authority of India Act, 1997 [hereinafter referred to as 'the Act']
against the decision of the Telecom Disputes Settlement and Appellate Tribunal
[hereinafter referred to as 'the tribunal']. The appellants are Cellular Mobile
B Service Providers (CMSPs) and the private respondents are·the Fixed Service
Providers (FSPs). The appellants approached the tribunal under Section 14 of
the Act, challenging the decision of the Government dated 25.1.200 I,
permitting the Fixed Service Providers to offer WLL with limited mobility.
Be it be stated that the appellants had also assailed the recommendations of
C the Telecom Regulatory Authority of India [for short TRAI] dated 8.1.200 I.
D
E
F
G
H
But after the Government decision dated 25.1.2001, the petition was amended
and the subsequent decision of the Government was also challenged. Before
the tribunal; large number of issues on facts and law had been raised, which
can be broadly enumerated as under:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
The decision of the government is vitiated for non-compliance
of Section I l(l)(a}(i) of the Act.
The NTP-1999 never contemplated of WLL with limited mobility
and as such the decision to provide WLL with limited mobility
to the Fixed Service Providers is beyond the policy in question.
The permission to offer WLL with limited mobility is arbitrary,
unreasonable and unjust decision on the part of the Government.
TRAI, while recommending by its letter dated 8.1.200 I had
indicated for compliance of two conditions, but the government
decision ultimately taken is contrary to the said recommendations
and, therefore, is vitiated.
The ultimate decision of the government in fact does not deal
with the question of level playing field between FSPs offering
WLL with limited mobility and CMSPs, as a result of the
discriminatory regulatory regime.
The impugned decision conferring the benefit of WLL with
limited mobility to the Fixed Service Providers is nothing but a
Cellular Mobile Service in SDCA and as such is a substitution
for the same and such a substitution ought not to have been
allowed.
CELLULAR OPERATORS ASSOCIATION OF INDIA v. U.0.1. [PATTANAIK, CJ.] 233
(vii) The Government decision allowing Fixed Service Providers to A
provide WLL with limited mobility without any entry fee and
without any charges for allocation of spectrum and eve~ without
a competitive bidding, amount to violation of the
recommendations made by the TRAI dealing with new CMSPs
licensees.
The stand of the Union Government as well as the Fixed Service
Providers and also the consumers before the tribunal was that there was no
prohibition in the Policy of 1999 (NTP-1999) either for introduction of any
new technology in consumers interest nor is there any bar on the power of
B
the competent authority to accept the recommendations of the TRAI and take C
a final decision regarding permitting inexpensive and advantageous system
for the consumers. It was also urged that both before the TRAI and also
before the Special Committee appointed by the Prime Minister, long
deliberations had been made and the cellular operators were exteQSively heard
and then on the basis of the recommendations of the Special Committee, the
Prime Minister took the decision. When a highly expertised body has D
recommended, which was ultimately accepted by the government, it would
not be for the Court to interfere with the same unless the so-called
recommendations are found to be either arbitrary or contrary to law or in
violation of the principles of natural justice. That being so, it would not be
for the appellate tribunal to interfere with the well considered decision of the E
Government of India in approving the recommendations of the specially
constituted Committee and in permitting the Fixed Service Providers to use
WLL with limited mobility mechanism in the larger interest of the society.
It was also contended before the tribunal that before making any
recommendations, the Committee had duly examined the question of level
playing field and also whether it is a substituted form of mobile service or F
not and such findings of the expertised body are not to be interfered with by
the appellate tribunal in exercise of its limited powers. On behalf of the Fixed
Service Providers as well as the consumers, several instances were also given
before the appellate tribunal as to how the so-called grievance of the cellular
operator is nothing but a shedding of crocodile tears and they have been
benefiting and are not in any way prejudicially affected by the introduction G
of WLL with limited mobility. According to the consumers, the WLLM is
particularly helpful to increase tele-density in rural and semi-urban areas and1
therefore, any attempt to increase the tele-density and to penetrate the areas
which do not have telephone connections, must be welcomed. It was also
contended that the steps taken by the government in providing the facility of H
234
SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A WLL with limited mobility are for providing affordable and cheaper
telecommunication services as well as for increasing the tele-density in tht>
urban, semi-urban and rural areas and that should not be stalled, even if there
has been minor infraction of any provisions of the Act or the Rules, particularly
when it is in the larger interest of the consumers. It was stated before us by
B the counsel appearing for the parties that the hearing before the tribunal
continued for 26 days and large number of contentions on facts as well as
law were urged and quite a number of decisions had been cited. The tribunal
however by the impugned judgment, while dismissing the application filed
before it, came to the conclusion thatc
D
(a) The WLL with limited mobility offers benefits to consumers in
rural and urban areas and it would provide uninterrupied trouble
free service, as the subscriber does not have to wait endlessly for
a mechanic to come and rectify the fault. in the wire liri,e.
(b) A subscriber having WLL with limited mobility can dispense
with the wire-line phone.
(c) The decisions to offer WLL with limited mobility is a policy
decision of the government, which the government was free to
take and as such a policy decision cannot be assailed either by
the cellular operators nor the tribunal can interfere with the same.
E
(d) The jurisdiction of the tribunal is not wider than that of the
F
G
H
Supreme Court and within the parameters of that jurisdiction, the
tribunal cannot interfere with the decision of the government.
(e) The cellular operators unequivocally indicated by their letter dated
25.9.2000 that they had no objection to the introduction of limited
mobility provided level playing field conditions are maintained
and, therefore, they are not entitled to assa11 the decision of
introduction of WLL with limited mobility.
(t)
The so-called decision of the government is not a case of mindless
change of policy in a hurry nor is the decision arbitrary or ma/a
fide and the government is entitled to deviate from a policy
decision and adopt another policy, which cannot be reviewed by
the appellate tribunal.
(g) A new technology has come into existence, which technology is
much more beneficial to the consumers and which technology
would make it possible for increasing the tele-density in the
CELLULAR OPERATORS ASSOCIATION OF INDIA v. U.0.1. IPATTANAIK, CJ.] 235
country, the same should not be interfered with.
A
(h) The charges a consumer will have to pay for WLL with limited
mobility will be much less than the charges levied by the Cell
operators and the CDMA network casts much less to build and
operate than GSM and further CDMA is far superior to GSM.
(i)
The Cellular operators themselves had been allowed to migrate B
and they cannot be heard to complain about, when such migration
is permitted to Fixed Service Providers.
Q)
The fear expressed by the cellular operators is either feigned or
imaginary.
c
(k) The cellular operators can also use latest technology including
WLL with limited mobility and so also the Fixed Service
Providers.
(I)
A reduction of licence fee and entry fee into areas hitherto
unavailable to the cellular operators like PCO is sufficient D
compensation and concession.
(m) There cannot be any legitimate expectation and the theory of
legitimate expectation has no application. But on the other hand,
it will be an illegitimate expectation.
With these conclusions, the tribunal having dismissed the application, the E
cellular operator are in appeals before this Court.
On behalf of the appellants arguments were advanced in this Court by
Mr. P. Chidambaram, Mr. Ram Jethmalani·and Mr. C.S. Vaidyanathan. On
behalf of the respondents, arguments were advanced by the Ld. Attorney F
General, Dr. A.M. Singhvi, Mr. Ashok H. Desai and Mr. P.N. Misra.
The arguments of the appellants can be summarized thus:
(I) Though large number of highly debatable issues had been argued,
the tribunal did not make any reference to those issues and such
non-consideration and non-disposal would be an important G
question of law for which the order has to be interfered with.
(2) In view of the divergence between the recommendation of the
TRAI and the ultimate decision of the government, it was
obligatory for the government to act in accordance with the 5th
proviso to Section 11 (I) and such non-compliance vitiates the H
236
A
B
c
D
E
F
SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
ultimate decision. The tribunal committed error in not answering
the said issue.
(3) Even the tribunal failed to answer the question, whether the WLL
with limited mobility is nothing but a substitution of the cellular
operation and such non-answering vitiates the ultimate decision.
(4) The tribunal also did not positively answer the question whether
introduction ofWLL with limited mobility was permissible under
NTP-1999 and whether the technology itself was known as early
as in 1994-95.
(5) On the question of level playing field, it is contended that there
has been no discussion or appreciation of the materials placed
and in fact, no finding has been given though the tribunal has
used the expression 'that some compensation has been provided
for to the cellular operators'.
(6) The conclusions of the tribunal without appreciating the evidence
and materials adduced and without being backed by any reasons
are unsustainable and the same have to be interfered with.
(7) The tribunal also has assumed several things even though not
borne out by records and such assumption without any reference
to any materials vitiates the ultimate conclusion and as such
cannot be upheld by this Court.
(8) The tribunal disposed of the matter broadly on the ground that
it is in the consumer's interest without focusing its attention to
the several infinnities with the decision of the government and
as such the impugned judgment of the tribunal has to be interfered
with.
(9) The administrative ministry which formulated the NTP, having
itself interpreted NTP-1999, to hold that it does not pennit FSPs
to provide any mobile service, the subsequent decision permitting
the FSPs to have WLL with limited mobility is nothing but an
G
arbitrary action and the tribunal committed error in not examining
th is aspect.
(10) The migration package was accepted both by the FSPs and CMSPs
under the new policy regime ofNTP-1999, and the provisions of
NTP-99 became part of their respective licence agreement and
H
when there has been a change of the same, it tantamounts to
CELLULAR OPERA TORS ASSOCIATION OF INDIA v. U.0.1. [PA TT ANAIK, CJ.) 23 7
violation of guarantees included in the conditions of licence.
A
(I I) It was also urged that the appellate tribunal under the Act,
exercises both the original jurisdiction as well as the appellate
jurisdiction and the same is wide enough and not circumscribed
by the jurisdiction of a court under Article 226 and, therefore,
the tribunal committed serious error by restricting its jurisdiction B
and it amounts to non-exercise of jurisdiction vested in law.
( 12) Lastly, it was urged that the objects and reasons of the amended
provisions were to strengthen the authority, so as to increase
investors' confidence and create a level playing field between
the public and private operators. Such object will be frustrated if C
the dispute regarding the level playing field is not answered and
is brushed aside, as has been done by the tribunal, on the ground
of public interest and as such the impugned decision of the tribunal
cannot be upheld.
The arguments on behalf of the respondents on the other hand can be D
summarized thus:
I.
The level of judicial scrutiny and the extent of judicial intervention
in any particular case, depends.upon the nature of the impugned
decision and its subject matter as well as the composition of the
decision making body.
E
2.
When decision of expert bodies or tribunal dealing with technical,
scientific, academic or economic matters are assailed, courts grant
greater latitude to the decision of such expert bodies and while
exercising original or appellate jurisdiction, greater deference to
such decision is accorded. Judicial intervention is restricted to F
and is available iftliere is a breach of a constitutional or a statutory
provision or the approach adopted is totally illegal or if the
decision is vitiated by niala fides, properly pleaded and proven.
Judicial scrutiny would not extend to questioning the decision on
the ground that it is unwise or unscientific or inappropriate or a
better decision could have been given. The limitation for judicial G
intervention is inherent and that being so, the impugned order of
the tribunal has to be examined from that stand point.
(3) According to the Attorney General, the very composition of TRAI
as well as the composition of GOT-IT constituted by the Prime
Minister, indicates that it consisted of highly qualified technical H
A
B
c
D
E
F
G
H
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SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
experts and it is on their recommendation, the Prime Minister
took the final decision. That being so, it w9uld not be appropriate
either for the tribunal or for this Court to interfere with the same
unless any statutory infirmity is found or it is established that the
decision is vitiated by ma/a fides.
(4) According to the Ld. Attorney General, not only the
recommendations of the TRAI confer several benefits to the
cellular operators as against the basic service operators, but also
GOT-IT granted further concessions in the matter of revenue
share percentage, which in the language of the tribunal, fully
compensated the cellular operators and this answers the level
playing field.
(5) It is urged that no doubt the judgment of the tribunal could have
been better written, but that itself would be no ground for
interference by this Court, when the Court's jurisdiction to
interfere is restricted to interference on a substantial question of
law.