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TMI Blog2013 (12) TMI 1637X X X X Extracts X X X X X X X X Extracts X X X X ..... r conferred upon the Authority to issue an order fixing the rates at which the telecommunication services are to be provided within and outside India including the rates at which messages are required to be transmitted to any country outside India and the power vested in the authority under Section 12(4) and 13 to issue directions to the service providers cannot be controlled by making regulations under Section 36(1). Power to Regulate versus Power to prohibit - HELD THAT:- The question essentially is one of degree and it is impossible to fix any definite point at which regulation ends and prohibition begins. - the term regulate is elastic enough to include the power to issue directions or to make regulations and the mere fact that the expression as may be provided in the regulations appearing in clauses (vii) and (viii) of Section 11(1)(b) has not been used in other clauses of that sub-section does not mean that the regulations cannot be framed under Section 36(1) on the subjects specified in clauses (i) to (vi) of Section 11(1)(b). Power of the Authority / TRAI - Section 36 - HELD THAT:- there is nothing in the language of Section 36(2) from which it can be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterconnection (Port Charges) Amendment Regulation (1 of 2007) was allowed and the Authority was directed to give fresh look at the regulations and BSNL was directed not to claim any amount from any operator during the interregnum, i.e., from the date of coming into force of the regulations and the date of the order. 5.3 A perusal of the record shows that port charges came to be prescribed in Schedule 3 of the Telecommunication Interconnection (Charges and Revenue Sharing) Regulations, 1999, which came into force on 28.5.1999. By virtue of Clause 8, the regulations were given overriding effect qua the interconnection agreements. MTNL challenged the 1999 regulations before the Delhi High Court in Civil Writ Petition No. 6543/1999, which was allowed by the Division Bench of the High Court vide order dated 17.1.2000 [MTNL v. TRAI, AIR 2000 (Delhi) 208] and it was held that the Regulations framed under Section 36 of the Act could not be given overriding effect. Thereafter, the Authority framed the Telecommunication Interconnection (Port Charges) Amendment Regulations (6/2001). The port charges were specified in the schedule to the amended regulations. The amended regulations were ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain dispute between the service providers. TDSAT noted that the words dispute and determination have been used in the direction issued by the Authority, referred to the judgment of this Court in Cellular Operators Association of India v. Union of India (2003) 3 SCC 186 and held that the jurisdiction of TDSAT is quite wide and is circumscribed only by the three instances, i.e., disputes before the MRTP Commission, Consumer Forums and those under Section 7B of the Telegraph Act. 6.4 The Authority filed Review Petition No. 2/2004 and argued that while the Authority can be faulted for the use of words dispute and determination , its power to intervene cannot be questioned. Another plea taken by the Authority was that the regulations framed under Section 36 are in the nature of subordinate legislation and validity thereof cannot be questioned before TDSAT. The review petition was dismissed by TDSAT vide order dated 10.8.2004 reiterating that it had jurisdiction to entertain dispute relating to validity of regulations. Civil Appeal Nos. 3298 and 4529 of 2005 7.1 These appeals are directed against order dated 27.4.2005 passed by TDSAT in Appeal Nos. 11 and 12 of 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TRAI) and Appeal No.3/2005 as also the order passed by the Delhi High Court wherein it was held that TDSAT is empowered to hear appeals involving challenge to the validity of the regulations framed under Section 36. TDSAT then held that even after amendment of the Act, the Authority does not have the power to amend or override the terms and conditions of the interconnect agreements executed by the service providers. Civil Appeal Nos. 3299, 6049 of 2005 and 802 of 2006 8.1 These appeals have been filed against order dated 3.5.2005 of TDSAT whereby it allowed Appeal No.31/2003 and partly allowed Petition No.20/2004 and quashed direction dated 22.7.2003 issued by the Authority on the premise that it did not have the power to override and make direct interconnectivity mandatory. 8.2 Direct connectivity between different service providers was introduced in light of NTP 1999 and the same was provided for in the license agreements of existing licensees through an amendment on 29.1.2001 as per DoT letter dated 9.8.2000 which stated that direct connectivity was permitted for the purpose of terminating traffic on the basis of mutual agreements. In the meanwhile, on 29.9.2000 BSN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20/2004 and quashed direction dated 22.7.2003 on the ground that the Authority cannot issue direction resulting in modification of the licence issued after 2000 amendment. TDSAT held that fixation of the terms and conditions of interconnectivity and ensuring effective interconnectivity is part of the legislative mandate of the Authority under Section 11(1)(b)(ii) and (iii). TDSAT referred to its earlier order dated 27.4.2005 passed in Appeal Nos. 11 and 12/2002 and held that the amendment of the Act does not override the law laid down by the Delhi High Court in MTNL v. TRAI (supra). TDSAT further held that the power vested in the Authority could be exercised in harmony with the terms of interconnectivity of licenses issued after the 2000 amendment and the principles laid down in the High Court judgment. With regard to the claim of COAI, TDSAT held that though BSNL was justified in collecting ₹ 0.19 transit charges from Level I TAX to termination of calls in PSTN network or for providing interconnectivity to networks of other service providers, it was not justified in charging transit charges to the extent of ₹ 0.19 for transit calls from, Level I TAX to Cellone s Gatewa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess charges. That clause was struck down by Delhi High Court in MTNL v. TRAI (supra). 9.5 After its creation on 1.10.2000, BSNL issued communications dated 28.4.2001 and 31.5.2001 requesting an increase in the access charges, making the regime of payment dependent on actual work done by the concerned operator. The BSOs made a representation to the Authority objecting to this increase. 9.6 AUSPI filed Petition No. 9/2001 before TDSAT challenging communications dated 28.4.2001 and 31.5.2001. Vide interim order dated 10.7.2001, AUSPI was directed to continue paying the admitted amounts. AUSPI paid the port charges and access charges under Interconnect Regulations, 1999 and hence BSNL issued circulars dated 2.11.2001 and 21.11.2001 for recovery of the amounts calculated on the basis of the interconnect agreements stating that in light of the Delhi High Court judgement, letter dated 12.10.1999 issued by DoT on the basis of Interconnection Regulations 1999 had become null and void. As per this circular, BSNL revised retrospectively w.e.f. 1.5.1999 port charges to be levied from CMSPs at rates prevailing prior to 1.5.1999. Thereupon, AUSPI amended Petition No. 9/2001 and challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not exceed ₹ 0.20 per minute. BSNL issued Circular dated 28.1.2004 levying charge of ₹ 0.4 per minute for a call from cellular mobile network to another cellular network transited by BSNL. This charge includes ₹ 0.30 towards call termination and ₹ 0.19 towards transit. 10.4 BSNL issued Circular dated 2.7.2004 to its telecom circles informing them of its decision to permit direct connectivity with the BSNL Cellular Network. Reliance Infocom was one of the UASL operators who had sought such connectivity. NLD and ILD operators were permitted to establish direct connectivity with CellOne network vide BSNL Circular dated 4.8.2004. Vide Circular dated 23.8.2004, Reliance was given direct interconnect as NLDO/ILDO on the same terms and conditions as Bharti Televentures Ltd. 10.5 COAI filed Petition No. 20/2004 seeking a direction against BSNL CellOne to directly connect to the Cellular Service Providers and to strike down the BSNL Circular requiring payment of ₹ 0.19 as transit charges which BSNL Basic Services Division was demanding and collecting. 10.6 Vide order dated 3.5.2005, TDSAT allowed Appeal No. 31/2003 and quashed direction dated 22.7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity directive dated 16.11.2005 applying this judgment to all service providers although the petitioners had been only cellular operators, Reliance filed another representation dated 12.12.2005 but did not get any response from the Authority. 10.11 Bharti Televentures Limited filed Appeal No. 8/2005 seeking extension of the benefit of order dated 3.5.2005 and also for modification of the regulations and for extension of the benefit to similarly situated UAS Licensees. 10.12 By an order dated 10.2.2006, TDSAT dismissed the appeal and held that the transit charges would be determined by the interconnect agreement voluntarily entered into between Bharti and BSNL post judgment dated 3.5.2005. However, TDSAT did not go into the issue of whether basic service providers can be construed as similarly situated to cellular operators. 10.13 Bharti Televentures Limited challenged the aforesaid order in Review Application No. 1/2006, which was dismissed vide order dated 3.5.2006. 10.14 Tata Teleservices Limited filed Petition No. 132/2005 praying for extending the benefit of order dated 3.5.2005, setting aside the demands of BSNL for ₹ 0.19 as transit charges and modification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided for higher termination charges for roaming calls. Thereupon, COAI filed complaints before BSNL and also before the Authority regarding higher termination charges for roaming calls. The Authority issued letter dated 20.4.2006 to BSNL along with complaints filed by COAI and M/s BPL. Complaint of Bharti was also forwarded vide letter dated 24.4.2006. Despite agreeing to discuss the matter with the private operators, BSNL started raising bills as per the circular. COAI and others made representations dated 24.5.2006 and 12.6.2006 against thee demands. BSNL replied to the Authority s letter vide letter dated 28.4.2006 stating that the license agreements provide for revenue share and the circular was strictly in accordance with the same. 11.4 Vide decision dated 11.9.2006, the Authority rejected the claim of BSNL for revenue sharing in respect of roaming calls and directed BSNL to charge ₹ 0.30 per minute for termination of national and international roaming calls as prescribed in IUC Regulations. 11.5 BSNL filed Appeal No. 14/2006 challenging the Authority s decision dated 11.9.2006 on the ground of lack of jurisdiction. COAI also filed Appeal No.16/2006 challenging th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 per minute (metro) and ₹ 0.40 (circle). The concept of Access Deficit Charge (ADC) was also introduced at 30% of the total sectoral revenue - fee paid by private operators to cross subsidise BSNL for deploying its fixed network in non-lucrative areas. 12.3 On receipt of representation dated 4.2.2003 by COAI about the anomalies in the 2003 IUC Regulations, the Authority undertook a review on 29.10.2003 and reduced the termination charges to a uniform rate, i.e., ₹ 0.30 per minute for all types of calls and the ADC was made 10%. The representation made by COAI for further reduction in the amount of termination charges was, however, rejected by the Authority. 12.4 Between 2005 and 2008, 5 amendments were made and in the matter of payment of ADC on 9.3.2009, the Authority notified IUC (Amendment Regulations, 2009) fixing termination charge at ₹ 0.20 per minute for local and national long distance calls and mobile telephone services. These regulations were challenged by BSNL and various private operators by filing separate appeals, the details of which are given below: Appeal No. Appellant Details of Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cellular Ltd. Ors. Similar to M/s Bharati Airtel Appeal No. 7/2009 M/s Aircel Ltd. Ors. Similar to Vodafone. Appeal No. 8/2009 Etisalat D.B. Telecom (P) Ltd. Seeking setting aside of Regulation dt. 9.3.2009. Direction to TRAI to: re-introduce termination charges based on whether operator is a new entrant and had fulfilled roll out obligation; determine MTC at not more then 09 paise per minute and FTC at not more than 10 paise per minute; fix TAX transit charge at not more than 02 paise; reduce long distance carriage charge to not more than 11 paise per minute; fix nil charge for receipt of interconnect SMS traffic on the receiving telecom network. 12.5 By an order dated 12.5.2009, TDSAT dismissed Appeal Nos. 6/2006, 5/2007 and 5/2008. However, by the impugned order some of the appeals were disposed of and the matter was remanded to the Authority with a direction to consider the matter afresh and complete the consultation process in a time bound manner so that the new IUC charges could be made effective/implemented by 1.1.2011. Tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was the establishment of a modern telecommunication manufacturing facility at Bangalore under the public sector, in the name of Indian Telephone Industries Ltd . 1984 represents an important milestone in the development of telecommunication sector. In that year, the Centre for Development of Telematics ( C-DoT ) was set up for developing indigenous technologies and licences were given to the private sector to manufacture subscriber-equipment. In 1986, Mahanagar Telephone Nigam Ltd. and Videsh Sanchar Nigam Ltd. ( VSNL ) were set up. In July 1992 a decision was taken to allow private investment for the services like electronic mail, voicemail, data services, audio text services, video text services, video conferencing, radio paging and cellular mobile telephone. 16. In February 1993, the Finance Minister in his Budget speech announced Government s intention to encourage private sector involvement and participation in Telecom to supplement efforts of Department of Telecommunications especially in creation of internationally competitive industry. On 13.5.1994, National Telecom policy was announced which was placed in Parliament saying that the aim of the policy was to supplement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to behave like sleeping trustees, but have to function as active trustees for the public good. (emphasis supplied) 18. The 1996 Ordinance was replaced by the Act. The main purpose of establishing the Authority as a statutory body was to ensure that the interest of consumers are protected and, at the same time, to create a climate for growth of telecommunications, broadcasting and cable services in such a manner which could enable India to play leading role in the emerging global information society. The goals and objectives of the Authority are as follows: i. Increasing tele-density and access to telecommunication services in the country at affordable prices. ii. Making available telecommunication services which in terms of range, price and quality are comparable to the best in the world. iii. Providing a fair and transparent policy environment which promotes a level playing field and facilitates fair competition. iv. Establishing an interconnection regime that allows fair, transparent, prompt and equitable interconnection. v. Re-balancing tariffs so that the objectives of affordability and operator viability are met in a consistent manner. vi. Protecting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviding telecommunication services; ensure compliance of terms and conditions of licence; f. recommend revocation of licence for non-compliance of terms and conditions of licence; g. laydown and ensure the time period for providing local and long distance circuits of telecommunication between different service providers; h. facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services; i. protect the interest of the consumers of telecommunication service; j. monitor the quality of service and conduct the periodical survey of such provided by the service providers; k. inspect the equipment used in the network and recommend the type of equipment to be used by the service providers; l. maintain register of interconnect agreements and of all such other matters as may be provided in the regulations; m. keep register maintained under clause (I) open for inspection to any member of public on payment of such fee and compliance of such other requirements as may be provided in the regulations; n. settle disputes between service providers; o. render advice to the Central Government in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtner, manager, secretary or other officer, if such service provider is a firm; or (d) every other person or body of persons who has had dealings in the course of business with any of the persons mentioned in clauses (b) and (c), shall be bound to produce before the Authority making the inquiry, all such books of account or other documents in his custody or power relating to, or having a bearing on the subject-matter of such inquiry and also to furnish to the Authority with any such statement or information relating thereto, as the case may be, required of him, within such time as may be specified. (3) Every service provider shall maintain such books of account or other documents as may be prescribed. (4) The Authority shall have the power to issue such directions to service providers as it may consider necessary for proper functioning by service providers. 13. Powers of Authority to issue directions- The Authority may, for the discharge of its functions under sub-section (1) of section 11, issue such directions from time to time to the service providers, as it may consider necessary. 14. Authority to settle disputes-(1) If a dispute arises, in respect of matters ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to settle dispute under Chapter IV and to make regulation under section 36) as it may deem necessary. 35.Power to make rules.- (1) The Central government may, by notification, make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely;- (a) the salary and allowances payable to and the other conditions of service of the Chairperson and members under sub-section (5) of section 5; (b) the powers and functions of the Chairperson under subsection (1) of section 6; (c) the procedure for conducting an inquiry made under subsection (2) of section 7; (d) the category of books of accounts or other documents which are required to be maintained under sub-section (3) of section 12; (e) the period within which an application is to be made under sub-section (1) of section 15; (f) the manner in which the accounts of the Authority shall be maintained under sub-section (1) of section 23; (g) the time within wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ementation of the Act, the Central Government constituted a Group on Telecom and IT Convergence under the Chairmanship of the Finance Minister. The recommendations made by the Group led to the issuance of the Telecom Regulatory Authority of India (Amendment) Ordinance, 2000, which was replaced by the Telecom Regulatory Authority of India (Amendment) Act, 2000. One of the important features of the Amendment Act was the establishment of a Tribunal known as the Telecom Disputes Settlement and Appellate Tribunal for adjudicating disputes between a licensor and a licencee, between two or more service providers, between a service provider and a group of consumers, and also to hear and dispose of any appeals from the direction, decision or order of the Authority. 21. The provisions of the amended Act, which have bearing on the decision of the question framed in the opening paragraph of this judgment are as under: 2. Definitions. (1) xxx xxx xxx (aa) Appellate Tribunal means the Telecom Disputes Settlement and Appellate Tribunal established under section 14; (b) Authority means the Telecom Regulatory Authority of India established under sub- section (1) of section 3; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority of India (Amendment) Act, 2000, fix the terms and conditions of interconnectivity between the service providers; (iii) ensure technical compatibility and effective interconnection between different service providers; (iv) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services; (v) lay down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of such service provided by the service providers so as to protect interest of the consumers of telecommunication service; (vi) lay down and ensure the time period for providing local and long distance circuits of telecommunication between different service providers; (vii) maintain register of interconnect agreements and of all such other matters as may be provided in the regulations; (viii) keep register maintained under clause (vii) open for inspection to any member of public on payment of such fee and compliance of such other requirement as may be provided in the regulations; (ix) ensure effective compliance of universal service obligations; (c) levy fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be transmitted to any country outside India: Provided that the Authority may notify different rates for different persons or class of persons for similar telecommunication services and where different rates are fixed as aforesaid the Authority shall record the reasons therefor. (3) While discharging its functions under sub-section (1), or sub-section (2) the Authority shall not act against the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality. (4) The Authority shall ensure transparency while exercising its powers and discharging its functions. 12. Powers of Authority to call for information, conduct investigations, etc. (1) Where the Authority considers it expedient so to do, it may, by order in writing,- (a) call upon any service provider at any time to furnish in writing such information or explanation relating to its affairs as the authority may require; or (b) appoint one or more persons to make an inquiry in relation to the affairs of any service provider; and (c) direct any of its officers or employees to inspect the books of account or othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and Restrictive Trade Practices Act, 1969 (54 of 1969); (B) the complaint of an individual consumer maintainable before a consumer Disputes Redressal forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986); (C) dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act 1885 (13 of 1885); (b) hear and dispose of appeal against any direction, decision or order of the Authority under this Act. 14A. Application for settlement of disputes and appeals to Appellate Tribunal.- (7) The Appellate Tribunal may, for the purpose of examining the legality or propriety or correctness of any dispute made in any application under sub-section (1), or of any direction or order or decision of the Authority referred to in the appeal preferred under sub-section (2), on its own motion or otherwise, call for the records relevant to disposing of such applications or appeal and make such orders as it thinks fit. 14M. Transfer of pending cases .--All applications, pending for adjudication of dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, officer of the Authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to settle dispute under Chapter IV and to make regulation under section 36) as it may deem necessary. 35. Power to make rules.-( 1) The Central Government may, by notification, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters namely:- (a) the salary and allowances payable to and the other conditions of service of the Chairperson and members under sub-section (5) of section 5; (aa) the allowance payable to the part-time members under sub-section (6A) of section 5; (b) the powers and functions of the Chairperson under subsection (1) of section 6; (c) the procedure for conducting an inquiry made under subsection (2) of section 7; (ca) the salary and allowances and other conditions of service of officers and other employees of the Authority under sub-section (2) of section 10; (d) the category of books of account or other documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulations or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation. 22. A comparative statement of the relevant provisions of the unamended and amended Acts is given below: UNAMENDED ACT AMENDED ACT PREAMBLE An Act to provide for the establishment of the Telecom Regulatory Authority of India to regulate the telecommunication services, and for matters connected therewith or incidental thereto. PREAMBLE An Act to provide for the establishment of the Telecom Regulatory Authority of India and the Telecom Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d effective inter-connection between different service providers; (d) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services; (e) ensure compliance of terms and conditions of licence; (f) recommend revocation of licence for noncompliance of terms and conditions of licence; (g) lay down and ensure the time period for providing local and long distance circuits of telecommunication between different service providers; (h) facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services; (i) protect the interest of the consumers of telecommunication service; (j) monitor the quality of service and conduct the periodical survey of such provided by the service providers; (k) inspect the equipment used in the network and recommend the type of equipment to be used by the service providers; (l) maintain register of interconnect agreements and of all such other matters as may be provided in the regulations; (m) keep register maintained under clause (l) open for inspection to any member of public o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such services; (v) technological improvements in the services provided by the service providers; (vi) type of equipment to be used by the service providers after inspection of equipment used in the network; (vii) measures for the development of telecommunication technology and any other matter relatable to telecommunication industry in general; (viii) efficient management of available spectrum; (b) discharge the following functions, namely:- (i) ensure compliance of terms and conditions of licence; (ii) notwithstanding anything contained in the terms and conditions of the licence granted before the commencement of the Telecom Regulatory Authority of India (Amendment) Act, 2000, fix the terms and conditions of inter-connectivity between the service providers; (iii) ensure technical compatibility and effective inter-connection between different service providers; (iv) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services; (v) lay-down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modifications, it shall, refer the recommendation back to the Authority for its reconsideration, and the Authority may within fifteen days from the date of receipt of such reference, forward to the Central Government its recommendation after considering the reference made by that Government. After receipt of further recommendation if any, the Central Government shall take a final decision. (2) Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the Authority may, from time to time, by order, notify in the Official Gazette the rates at which the telecommunication services within India and outside India shall be provided under this Act including the rates at which messages shall be transmitted to any country outside India: Provided that the Authority may notify different rates for different persons or class of persons for similar telecommunication services and where different rates are fixed as aforesaid the Authority shall record the reasons therefor. (3) While discharging its functions under sub-section (1) or sub-section (2) the Authority shall not act against the interest of the sovereignty and integrity of India, the security of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder subsection (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969); (b) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Disputes? Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986); (c) dispute between telegraph authority and any other person referred to in sub-section (1) of section 7-B of the Indian Telegraph Act, 1885 (13 of 1885). APPELLATE TRIBUNAL Section 14. Establishment of Appellate Tribunal . The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to- (a) adjudicate any dispute- (i) between a licensor and a licensee; (ii) between two or more service providers; (iii) between a service provider and a group of consumers: Provided that nothing in this clause shall apply in respect of matters relating to- (A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application or appeal finally within ninety days from the date of receipt of application or appeal, as the case may be: Provided that where any such application or appeal could not be disposed of within the said period of ninety days, the Appellate Tribunal shall record its reasons in writing for not disposing of the application or appeal within that period. (7) The Appellate Tribunal may, for the purpose of examining the legality or propriety or correctness, of any dispute made in any application under sub-section (1), or of any direction or order or decision of the Authority referred to in the appeal preferred under subsection (2), on its own motion or otherwise, call for the records relevant to deposing of such application or appeal and make such orders as it thinks fit . Section 14M - Transfer of pending cases All applications, pending for adjudication of disputes before the Authority immediately before the date of establishment of the Appellate Tribunal under this Act, shall stand transferred on that date to such Tribunal: Provided that all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Sections 193 and 228, and for the purpose of Section 196 of the Indian Penal Code, 1860 (45 of 1860) and the Authority shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure 1973 (2 of 1974) Section 16 Procedure and powers of Appellate Tribunal.- (1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Appellate Tribunal shall have powers to regulate its own procedure. (2) The Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of sections 123 and 124 of the Indian Evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with additional fine which may extend to two lakh rupees for every day during which the default continues. Section 20 Penalty for wilful failure to comply with orders of Appellate Tribunal .- If any person wilfully fails to comply with the order of the Appellate Tribunal, he shall be punishable with fine which may extend to one lakh rupees and in case of a second or subsequent offence with fine which may extend to two lakh rupees and in the case of continuing contravention with additional fine which may extend to two lakh rupees for every day during which such default continues.] Section 36 Power to make regulations .- (1) The Authority may, by notification, make regulations consistent with this Act and the rules made thereunder to carry out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:- (a) the times and places of meetings of the Authority and the procedure to be followed at such meetings under sub-section (1) of Section 8, including quorum necessary for the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the particularization of the topics is merely illustrative and does not limit the scope of the general power. Learned Solicitor General further argued that for carrying out the purposes of the Act, the Authority can make regulations on various matters specified in other sections including Sections 8(1), 8(4), 11(1)(b), 12(4) and 13. He submitted that the regulations made under Section 36(1) and (2) are in the nature of subordinate legislation and are required to be laid before each House of Parliament in terms of Section 37 and Parliament can approve, modify or annul the same. He further submitted that a restrictive interpretation of Section 36(1) with reference to Clauses (a), (b) and (d) of Section 36(2) will make the provision otiose and the Court should not adopt that course. 25. Shri A.S. Chandhiok, learned senior counsel appearing for BSNL argued that sub-section (1) of Section 36 should not be construed as conferring unbridled power upon the Authority to make regulations, else other provisions like Sections 12(4) and 13, which empower the Authority to issue directions on certain matters would become redundant. Shri C.S. Vaidyanathan, learned senior counsel appearing for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with other provisions of the Act including Sections 11(2), (4), 12(4) and 13. Shri Ramji Srinivasan, learned counsel appearing in some of the appeals, argued that the regulation making power under Section 36(1) cannot be used for nullifying the power of the Authority to issue directions on the topics specified in Sections 11(1)(b), 11(2), 12(4) and 13. 26. We have considered the respective arguments. Under the unamended Act, the Authority had the following three types of functions: RECOMMENDATORY FUNCTIONS Under Section 11 (1) (a) of the TRAI Act 1997, the Authority is required to make recommendations either suo moto or on a request from the licensor, i.e., Department of Telecommunications or Ministry of Information Broadcasting in the case of Broadcasting and Cable Services. TRAI has powers to make recommendations either suo motu or on request from the licensor on the following matters as per Section 11(1)(a): (i) need and timing for introduction of new service provider; (ii) terms and conditions of licence to a service provider; (iii) revocation of licence for non-compliance of terms and conditions of licence; (iv)measures to facilitate competition and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term ensure implies that the Authority can issue directions on the particular subject. For effective discharge of functions under various clauses of Section 11(1) (b), the authority can frame appropriate regulations. The term regulate contained in sub-clause (iv) shows that for facilitating arrangement amongst service providers for sharing their revenue derived from providing telecommunication services, the Authority can either issue directions or make regulations. 28. The terms regulate and regulation have been interpreted in large number of judgments. We may notice few of them. In V.S. Rice Oil Mills v. State of A.P. AIR 1964 SC 1781, agreements for a period of ten years had been executed for supply of electricity and the same did not contain any provision authorising the Government to increase the rates during their operation. However, in exercise of power under Section 3(1) of the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949, the State Government issued order enhancing the agreed rates. The same was challenged on the ground that any increase in agreed tariff was out of the purview of Section 3(1). Chief Justice Gajendragadkar, spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what was stated therein - that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic consideration and that it could not be laid down that in no circumstances could the exclusion of competition so as to create a monopoly, either in a State or Commonwealth agency, be justified. Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic activities and at some stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation. The statute with which we are concerned, the Mines and Minerals (Regulation and Development) Act, is aimed, as we have already said more than once, at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies the power to check and may imply the power to prohibit under certain circumstances, as where the best or only efficacious regulation consists of suppression. It would therefore appear that the word regulation cannot have any inflexible meaning as to exclude prohibition . It has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the legislation, and the Court must necessarily keep in view the mischief which the legislature seeks to remedy. The question essentially is one of degree and it is impossible to fix any definite point at which regulation ends and prohibition begins. We may illustrate how different minds have differently reacted as to the meaning of the word regulate depending on the context in which it is used and the purpose and object of the legislation. In Slattery v. Nalyor LR (1888) 13 AC 446 the question arose before the Judicial Committee of the Privy Council whether a Bye-law by reason of its prohibiting internment altogether in a particular cemetery, was ultra vires because the Municipal Council had only power of regulating internments whereas the Bye-law totally prohi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , ecological and environmental factors including States contribution in developing, manning and controlling such activities, including parting with its wealth, viz., the minerals, the fixation of the rate of royalties would also be included within its meaning. 34. Reference in this connection can also be made to the judgment in U.P. Coop. Cane Unions Federation v. West U.P. Sugar Mills Association (2004) 5 SCC 430. In that case, the Court interpreted the word regulation appearing in U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and observed: Regulate means to control or to adjust by rule or to subject to governing principles. It is a word of broad impact having wide meaning comprehending all facets not only specifically enumerated in the Act, but also embraces within its fold the powers incidental to the regulation envisaged in good faith and its meaning has to be ascertained in the context in which it has been used and the purpose of the statute. 35. It is thus evident that the term regulate is elastic enough to include the power to issue directions or to make regulations and the mere fact that the expression as may be provided in the regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the judgment of the Federal Court, the Privy Council observed: In the opinion of their Lordships, the function of subsection (2) is merely an illustrative one; the rule-making power is conferred by sub-section (1), and the rules which are referred to in the opening sentence of Subsection (2) are the . Rules which are authorized by, and made under, sub-section (1); the provisions of sub-section (2) are not restrictive of Sub-section (1), as, indeed is expressly stated by the words without prejudice to the generality of the powers conferred by sub-section (l). 38. The proposition laid down in Sibnath Banerji s case was followed by this Court in large number of cases. In Afzal Ullah v. State of Uttar Pradesh 1964 (4) SCR 991, the Constitution Bench considered challenge to the validity of bye-law No.3 framed by Municipal Board, Tanda. The appellant had questioned the bye-law on the ground that the same was ultra vires the provisions of Section 241 of the United Provinces Municipalities Act, 1916. The facts of that case were that the appellant had established a market for selling foodgrains, vegetables, fruits, fish etc. The Chairman of the Municipal Board issued a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right in coming to the conclusion that the impugned Bye-laws are valid. (emphasis supplied) 39. In Rohtak Hissar District Electricity Supply Company Ltd. v. State of Uttar Pradesh and others AIR 1966 SC 1471, this Court dealt with the rule making power of the State Government under the Uttar Pradesh Industrial Disputes Act, 1947 and observed: Section 15(1) confers wide powers on the appropriate Government to make rules to carry out the purposes of the Act; and Section 15(2) specifies some of the matters enumerated by clauses (a) to (e), in respect of which rules may be framed. It is well-settled that the enumeration of the particular matters by sub-section (2) will not control or limit the width of the power conferred on the appropriate Government by sub-section (1) of Section 15 ; and so, if it appears that the item added by the appropriate Government has relation to conditions of employment, its addition cannot be challenged as being invalid in law. (emphasis supplied) 40. In K. Ramanathan v. State of Tamil Nadu (supra), a three-Judge Bench of this Court considered the scope of Section 3(1), (2) and Section 5 of the Essential Commodities Act, 1955. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 15 of the Mines and Minerals (Regulation and Development) Act, 1957, the power of the State Governments to make rules under Section 15 to enable them to charge dead rent and royalty in respect of leases of mines and minerals granted to them and to enhance the rates of dead rent and royalty. While repelling the argument that the 1957 Act does not contain guidelines for exercise of power by the State Government under Section 15(1), this Court observed: 32. There is no substance in the contention that no guidelines are provided in the 1957 Act for the exercise of the rule-making power of the State Governments under Section 15(1). As mentioned earlier, Section 15(1) is in pari materia with Section 13(1). Section 13, however, contains sub-section (2) which sets out the particular matters with respect to which the Central Government may make rules In particular, and without prejudice to the generality of the foregoing power , that is, the rulemaking power conferred by sub-section (1). It is well settled that where a statute confers particular powers without prejudice to the generality of a general power already conferred, the particular powers are only illustrative of the gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em. The particular matters in respect of which the Central Government can make rules under subsection (2) of Section 13 are, therefore, also matters with respect to which under sub-section (1) of Section 15 the State Governments can make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith . When Section 14 directs that The provisions of Sections 4 to 13 (inclusive) shall not apply to quarry leases, mining leases or other mineral concessions in respect of minor minerals , what is intended is that the matters contained in those sections, so far as they concern minor minerals, will not be controlled by the Central Government but by the concerned State Government by exercising its rule-making power as a delegate of the Central Government. Sections 4 to 12 form a group of sections under the heading General restrictions on undertaking prospecting and mining operations . The exclusion of the application of these sections to minor minerals means that these restrictions will not apply to minor minerals but that it is left to the State Governments to prescribe such restrictions as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it will be apposite to mention that Section 11(1)(b)(iv) specifically postulates making of regulations for discharging the functions specified in those clauses. Section 11(2), which contains non-obstante clause vis- -vis the Indian Telegraph Act, 1885, lays down that the Authority may, from time to time, by order notify the rates at which the telecommunication services within or outside India shall be provided under the Act subject to the limitation specified in Section 11(3). Under Section 12(1), the Authority is empowered to issue order and call upon any service provider to furnish such information or explanation relating to its affair or appoint one or more persons to make an inquiry in relation to the affairs of any service provider and direct inspection of the books of account or other documents of any service provider. Sections 12(4) and 13 of the Act on which reliance has been placed by the learned counsel for the respondents in support of their argument that the Authority cannot frame regulations on the subjects mentioned in these two sections are only enabling provisions. This is evinced from the expressions shall have the power used in Section 12(4) and The Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the above discussion and the propositions laid down in the judgments referred to in the preceding paragraphs, we hold that the power vested in the Authority under Section 36(1) to make regulations is wide and pervasive. The exercise of this power is only subject to the provisions of the Act and the Rules framed under Section 35 thereof. There is no other limitation on the exercise of power by the Authority under Section 36(1). It is not controlled or limited by Section 36(2) or Sections 11, 12 and 13. 46. The second and more important facet of the question framed by the Court is whether TDSAT has the jurisdiction to entertain challenge to the regulations framed by the Authority. 47. The learned Solicitor General referred to Articles 323A and 323B of the Constitution, Section 14 of the Administrative Tribunals Act, 1985, the judgment of the larger Bench in L. Chandra Kumar v. Union of India (1997) 3 SCC 261 and argued that whenever Parliament wishes to confer power of judicial review on an adjudicatory body other than the regular Courts, it has enacted a provision like Section 14 of the 1985 Act. He submitted that the language of Section 14 of the Act, which was enacte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of judicial review on the Appellate Tribunal. 48. S/Shri A.S. Chandhiok, C.S. Vaidyanathan, Dr. A.M. Singhvi, Ramji Shrinivashan and Mukul Rohatgi, learned senior counsel relied upon the judgment of the larger Bench in L. Chandra Kumar vs. Union of India (supra) and argued that every Tribunal constituted under an Act of Parliament or State Legislature is empowered to exercise power of judicial review qua the rules and regulations. They also relied upon the judgments of this Court in Cellular Operators Assn. of India v. Union of India (2003) 3 SCC 186, Hotel Restaurant Association v. Star India (P) Ltd. (2006) 13 SCC 753, Union of India v. TATA Teleservices (Maharashtra) Ltd. (2007) 7 SCC 517, Union of India v. Association of Unified Telecom Service Providers of India (2011) 10 SCC 543 and argued that the validity of the regulations framed under Section 36 can be examined by TDSAT and in appropriate cases the same can be struck down. They further argued that the regulations framed under Section 36 are essentially in the nature of a decision taken by the Authority and the same can always be subjected to challenge under Section 14(b). Learned senior counsel also referred to order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he jurisdiction of Monopolies and Restrictive Trade Practices Commission, the complaint of an individual consumer which could be maintained under the consumer forums established under the Consumer Protection Act, 1986 and dispute between Telegraph Authority and any other person referred to in Section 7B(1) of the Indian Telegraph Act, 1885. In terms of clause (b) of Section 14 (amended), TDSAT is empowered to hear and dispose of appeal against any direction, decision or order of the Authority. Section 14A(1) provides for making of an application to TDSAT for adjudication of any dispute referred to in Section 14(a). Section 14A(2) and (3) provides for filing an appeal against any direction, decision or order made by the Authority and also prescribes the period of limitation. Sub-sections (4) to (7) of Section 14 are, by and large, procedural. Section 14B relates to composition of Appellate Tribunal. Section 14C prescribes qualifications for Chairperson and Members. Section 14D speaks of tenure of the Chairperson and every other Member of TDSAT. Section 14E speaks of terms and conditions of service. Section 14F provides for filling up the vacancies. Section 14G deals with removal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 14-N provides for transfer to all appeals pending before the High Court to TDSAT and in terms of Clause (b) of sub-Section (2), TDSAT was required to proceed to deal with the appeal from the stage which was reached before such transfer or from any earlier stage or de novo as considered appropriate by it. Since High Court while hearing appeal did not have the power of judicial review of subordinate legislation, the transferee adjudicatory forum, i.e., TDSAT cannot exercise that power under Section 14(b). 53. In Cellular Operators Assn. of India v. Union of India (supra), Pattanaik, C.J., who authored main judgment of the three Judge Bench, referred to Section 14 and observed: Suffice it to say, Chapter IV containing Section 14 was inserted by an amendment of the year 2002 and the very 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 called the Telecom Disputes Settlement and Appellate Tribunal for adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has already been made and reliance was placed by the learned Attorney-General. (emphasis supplied) 54. In Union of India v. TATA Teleservices (Maharashtra) Ltd. (supra), the two Judge Bench of this Court referred to the scheme of the Act and observed: The conspectus of the provisions of the Act clearly indicates that disputes between the licensee or licensor, between two or more service providers which takes in the Government and includes a licensee and between a service provider and a group of consumers are within the purview of TDSAT. A plain reading of the relevant provisions of the Act in the light of the Preamble to the Act and the Objects and Reasons for enacting the Act, indicates that disputes between the parties concerned, which would involve significant technical aspects, are to be determined by a specialised tribunal constituted for that purpose. There is also an ouster of jurisdiction of the civil court to entertain any suit or proceeding in respect of any matter which TDSAT is empowered by or under the Act to determine. The civil court also has no jurisdiction to grant an injunction in respect of any action taken or to be taken in pursuance of any power con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order and directed the appellant to submit a report in that connection. No report having been submitted, by a subsequent order dated 24.9.2002, the High Court directed the appellant to take steps after hearing the parties and submit a report of compliance within a period of three months from the date of the order. Pursuant to this directive the appellant passed an order on 23.12.2002 holding, inter alia, that respondent No.1 had violated the provisions of the Telecommunication Tariff Order, 1999 insofar as it had failed to inform the appellant either as to the introduction of the scheme or subsequent withdrawal hereof. It was found that the action of respondent No.l had adversely affected the interest of the subscribers. Finally the appellant opined that the violation was of serious nature and to be dealt with in accordance with Section 29 read with Section 34 of the Act. Thereafter, a complaint was lodged before the jurisdictional Magistrate. Respondent No.1 filed an appeal against order dated 23.12.2002. TDSAT allowed the appeal and held that Section 29 could not be invoked for any violation of an order issued by the appellant. This Court referred to Sections 29 and 34 and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise become unworkable, but the same cannot be read as laying down a proposition of law that the words direction , decision or order used in Section 14(b) would include regulation framed under Section 36, which are in the nature of subordinate legislation. 58. In PTC India Ltd. v. Central Electricity Regulatory Commission (surpa), the Constitution Bench framed the following questions: (i) Whether the Appellate Tribunal constituted under the Electricity Act, 2003 (the 2003 Act) has jurisdiction under Section 111 to examine the validity of the Central Electricity Regulatory Commission (Fixation of Trading Margin) Regulations, 2006 framed in exercise of power conferred under Section 178 of the 2003 Act? (ii) Whether Parliament has conferred power of judicial review on the Appellate Tribunal for Electricity under Section 121 of the 2003 Act? (iii) Whether capping of trading margins could be done by CERC (the Central Commission) by making a regulation in that regard under Section 178 of the 2003 Act? 59. The Constitution Bench extensively referred to the provisions of the Electricity Act, 2003 including Sections 73, 75, 79, 86, 111, 177, 178, 179, 181 and 182, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has to fix the tariff. This basic scheme equally applies to the subject-matter trading margin in a different statutory context as will be demonstrated by discussion hereinbelow. The Bench then referred to the judgments in Narinder Chand Hem Raj v. Lt. Governor, H.P. (1971) 2 SCC 747 and Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641 and held: 53. Applying the abovementioned tests to the scheme of the 2003 Act, we find that under the Act, the Central Commission is a decision-making as well as regulationmaking authority, simultaneously. Section 79 delineates the functions of the Central Commission broadly into two categories-mandatory functions and advisory functions. Tariff regulation, licensing (including inter-State trading licensing), adjudication upon disputes involving generating companies or transmission licensees fall under the head mandatory functions whereas advising the Central Government on formulation of National Electricity Policy and tariff policy would fall under the head advisory functions . In this sense, the Central Commission is the decision-making authority. Such decision-making under Section 79(1) is not dependent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -matter of challenge before the appellate authority under Section 111 as the levy is imposed by an order/decision-making process. Making of a regulation under Section 178 is not a precondition to passing of an order levying a regulatory fee under Section 79(1)(g). However, if there is a regulation under Section 178 in that regard then the order levying fees under Section 79(1)(g) has to be in consonance with such regulation. The Constitution Bench then considered the question whether Section 121 of the Electricity Act, 2003 can be read as conferring power of judicial review upon the Appellate Tribunal. The Bench referred to the judgment in Raman and Raman Ltd. v. State of Madras AIR 1959 SC 694 and observed: 83. Applying the tests laid down in the above judgment to the present case, we are of the view that, the words orders , instructions or directions in Section 121 do not confer power of judicial review in the Tribunal. It is not possible to lay down any exhaustive list of cases in which there is failure in performance of statutory functions by the appropriate Commission. However, by way of illustrations, we may state that, under Section 79(1)(h) CERC is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate Tribunal for Electricity under Section 111 of the said Act. (iv) Section 121 of the 2003 Act does not confer power of judicial review on the Appellate Tribunal. The words orders , instructions or directions in Section 121 do not confer power of judicial review in the Appellate Tribunal for Electricity. In this judgment, we do not wish to analyse the English authorities as we find from those authorities that in certain cases in England the power of judicial review is expressly conferred on the tribunals constituted under the Act. In the present 2003 Act, the power of judicial review of the validity of the regulations made under Section 178 is not conferred on the Appellate Tribunal for Electricity. (v) If a dispute arises in adjudication on interpretation of a regulation made under Section 178, an appeal would certainly lie before the Appellate Tribunal under Section 111, however, no appeal to the Appellate Tribunal shall lie on the validity of a regulation made under Section 178. (vi) Applying the principle of generality versus enumeration , it would be open to the Central Commission to make a regulation on any residuary item under Section 178(1) read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation or society or other body, at the disposal of the Central Government for such appointment. Explanation.- For the removal of doubts, it is hereby declared that references to Union in this sub-section shall be construed as including references also to a Union territory. (2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations or societies owned or controlled by Government, not being a local or other authority or corporation or society controlled or owned by a State Government: Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub- section in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. 63. In Union of India v. Madras Bar Association (supra) and State of Gujarat v. Gujarat Revenue Tribunal Bar Association (2012) 10 SCC 353 : 2012 (10) SCALE 285, this Court applied the principles laid down in L. Chandra Kumar s case and reiterated the importance of Tribunals created for resolution of disputes but these judgments too have no bearing on the decision of the question formulated before us. 64. In the result, the question framed by the Court is answered in the following terms: In exercise of the power vested in it under Section 14(b) of the Act, TDSAT does not have th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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