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Vodafone India Ltd. and Ors. Vs. Telecom Regulatory Authority of India - (High Court of Delhi) (04 Sep 2017)

A mandamus would be issued to only to enforce a legal right

MANU/DE/2623/2017

Media and Communication

The Petitioners have filed the present petition, praying for issue an appropriate Writ, order and/or direction including an order, direction or writ in the nature of mandamus under Articles 226/227 of the Constitution directing the Respondent TRAI to forthwith provide to/share with the Petitioners the cost model proposed to be used in deciding/determining IUC and particularly Mobile Termination Charges (MTC)/issuance of the IUC Regulation. Further, to direct TRAI not to proceed with the present consultation process and/or issue any Regulation, pursuant to its Consultation Paper dated 5th August, 2016, without first providing/sharing the proposed cost models to the Petitioners and without first considering and examining the Petitioners comments/inputs thereon and further to provide reasons for disagreement thereto,

The Petitioners have been granted Unified Access Services/Unified Licences under Section 4 of the Indian Telegraph Act, 1885 for establishing and maintaining telecommunication services in various service areas. In terms of the unified licence, the Petitioners are obliged to interconnect with other telecom service providers at Point of Interconnection (POI) subject to compliance of prevailing regulations and directions issued by Telecom Regulatory Authority of India (TRAI). The Unified Licence further provides that, the charges for accessing other networks for inter-networks calls would conform to the orders/regulations/guidelines issued by the TRAI/licensor from time to time. Article 27.5 of the Unified Licence, provides that "the charges for accessing other networks for inter-network calls shall be based on mutual agreements between the service providers conforming to the Orders/IUC Regulations/Guidelines issued by the TRAI from time to time.

It is settled law that a mandamus would be issued to only to enforce a legal right. Concededly, the exercise to review the regulations which is being conducted by TRAI is a legislative exercise and not a judicial or an administrative proceeding. Therefore, the right of the Petitioners for information and the models proposed to be adopted by TRAI must be considered in the said context. Concededly, the Petitioners have no statutory right to the information sought by them and their case rests on the provisions of Section 11(4) of the TRAI Act.

It is apparent that, TRAI has held consultations with all stakeholders in a transparent manner. The mandate that, TRAI shall ensure transparency while exercising its powers and discharging its functions has to be read in the context of the functions being performed and/or powers being exercised by TRAI. In terms of Section 11(1) (a) and (b) of TRAI Act, TRAI also performs certain recommendatory and regulatory functions. It is settled that the principles of natural justice (such as affording a hearing to the affected parties) is not a necessary adjunct to legislative functions.

Certain legislations provide for previous publication of rules/byelaws and in terms of Section 23 of the General Clauses Act, 1897, the Authority having power to make rules or byelaws is required to publish a draft of the proposed rules or byelaws. Section 36 of the Act - which empowers the TRAI to make regulations to carry out the purposes of the Act - does not contain any such requirement of previous publication or placing draft regulations in public domain for inviting objections and suggestions. Thus, it is not necessary that TRAI present a set of draft regulations for comments by the stakeholders and hear them before proceeding further.

The expression "transparency" in legislative action must signify an open and transparent legislative exercise, which in present case has been fully complied with. All stakeholders have been informed that, the TRAI had initiated a review of the Inter-connection Usage Charges. TRAI has issued a consultation paper and has invited comments and views from all stakeholders. The views/comments received from all stakeholders have also been put in public domain for counter comments. TRAI is now proceeding further to frame the regulations based on the comments/views received and material gathered. Indisputably, consultation is a necessary facet of transparency (as held by the Supreme Court in Cellular Operators Association of India and Others v. Telecom Regulatory Authority of India and Others), however the extent and the manner of such consultation depends on the function being performed. The requirement and scope of consultation in the context of an administrative action is materially different from that in the context of a legislative action.

The requirement of consultation has been interpreted by the Supreme Court in several decisions in the context of the statute providing for such requirement. In Hindustan Zinc Ltd. v. A.P. State Electricity Board, the Supreme Court considered a challenge to a revision of a tariff for electricity, which was effected without consulting the Consultative Council. The Court held that, the advice Consultative Council was at best only persuasive and thus the revision of tariff without seeking the advice of Consultative Council could not be rendered invalid.

In Ram Tawakya Singh v State of Bihar, the Supreme Court observed that, "The word 'consult' implies a conference of two or more persons or impact of two or more minds in respect of a topic/subject. Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points to evolve a correct or satisfactory solution. Consultation may be between an uninformed person and an expert or between two experts. In either case, the final decision is with the consult or, but he will not be generally ignoring the advice of the consultee except for good reasons."

There can be no fixed formula for the manner in which consultation is required to take place. Administrative acts may require deliberation between the two parties and a higher level of interaction. However, the same would not hold true in case of a legislative exercise. Thus, this Court is of the view, that TRAI has conformed to the requirement of transparency as mandated under Section 11(4) of the Act and did not fall foul of the said provision in declining the Petitioner's request for disclosure of cost model at this stage. The petition is dismissed.

Relevant : Hindustan Zinc Ltd. v. A.P. State Electricity Board : MANU/SC/0340/1991: (1991) 3 SCC 299, Ram Tawakya Singh v State of Bihar, Cellular Operators Association of India and Others v. Telecom Regulatory Authority of India and Others

Tags : COST MODEL   DISCLOSURE   RIGHT  

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