Decided on April 06,2005



- (1.)A preliminary objection has been raised by the respondent, Department of Telecommunications (DoT) that TDSAT in exercise of its power and judicial review cannot go into the facts of the case. Various decisions of the Supreme Court have been cited as to the scope of judicial review. We think this objection was raised in mistaken view of the jurisdiction of this Tribunal. In one of the earlier matters before this Tribunal a view was taken that jurisdiction of TDSAT is limited or is akin to the power of judicial review.
(2.)Supreme Court in the case of Cellular Operators Association of India and Ors. v. Union of India and Ors. - (2003) 3 SCC 186, has held that such a view by the TDSAT is wholly unsustainable. DoT is a licensor and the petitioner a service provider. There is a dispute between service provider, the petitioner and the respondent as a licensor. TDSAT has to adjudicate this dispute under Section 14 of the Telecom Regulatory of India Act, 1997 (for short the 'Act'). As to how the dispute was to be settled, procedure is prescribed under Section 14A of the Act. Though, the Tribunal is not bound by the procedure laid down by the Code of Civil Procedure, 1908, but has power to regulate its own procedure. However, TDSAT is to be guided by the principles of natural justice subject, of course, to various provisions of the Act. Under sub-section 2 of the Section 16 of the Act, TDSAT for the purposes of discharging its functions, has the same powers as are vested in a civil court under the Code of Civil Procedure 1908 while trying a dispute in respect of the matters mentioned in sub-section. Following observations of the Supreme Court in the aforesaid case is a complete answer to the objection raised by the DoT. We quote Para 27 of concurring judgment of S.B. Sinha, J:-
"TDSAT was required to exercise its jurisdiction in terms of Section 14-A of the Act. TDSAT itself is an expert body and its jurisdiction is wide having regard to sub-section (7) of Section 14-A thereof. Its jurisdiction extends to examining the legality, propriety or correctness of a direction/order or decision of the authority in terms of sub-section (2) of Section 14 as also the dispute made in an application under sub-section (1) thereof. The approach of the learned TDSAT, being on the premise that its jurisdiction is limited or akin to the power of judicial review is, therefore, wholly unsustainable. The extent of jurisdiction of a court or a tribunal depends upon the relevant statute. TDSAT is a creature of a statute. Its jurisdiction is also conferred by a statute. The purpose of creation of TDSAT has expressly been stated by Parliament in the amending Act of 2000. TDSAT, thus, failed to take into consideration the amplitude of its jurisdiction and thus misdirected itself in law." (Para 27)

Pattanaik, C.J. who delivered the judgment along with H.K. Sema, J observed :-

"At the outset, it may be stated that the Tribunal committed an error by holding that it exercises supervisory jurisdiction. As has been stated earlier, 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 to this Court is only on a substantial question of law and the jurisdiction of a civil court for filing a suit is also ousted. It has already been held by us that the Tribunal has the power to adjudicate any dispute but while answering the dispute, due weight has to be given to the recommendation of TRAI, 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 bare comparison of the provisions of Section 14, which confers jurisdiction on the Tribunal 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, as this Court would be entitled to interfere only on the substantial question of law, which arises from the judgment of the Tribunal and not otherwise." (Para 11)

It is rather unfortunate that in view of clear statement of law as laid by the Supreme Court in the case in which DoT itself was a party, such a preliminary objection should have been raised.

The Petitioner, M/s. HFCL Satellite Communications Limited is a company incorporated under the provisions of the Companies Act, 1956. The Petitioner is a service provider with a subscriber base of approximately 100 clients for the provision of Very Small Aperture Terminal (VSAT)1 services. They were granted a non-exclusive license to establish, maintain and operate for Closed User Group (CUG)2 domestic 64-KBPS3 data network via INSAT satellite system in extended C-Band frequency assigned from time to time using VSAT throughout India.

(3.)IN the present petition, the Petitioner is challenging the impugned order dated 2nd January 2005 of the Department of Telecommunication (DoT), Government of INdia (the Respondent) thereby terminating its license valid up to 30.1.2005 with effect from 30.1.2005. The Petitioner has prayed for the following:-
(i) Direction/Order to the Respondent to forthwith execute and revise the agreement thereby permitting the migration of the Petitioner from the earlier license regime to the Revenue Sharing Regime under the National Telecom Policy, 1999 (NTP 99).

(ii) Refund of the excess license fee paid by the Petitioner till date along with interest.

(iii) Preventing the Respondent from disrupting the existing services which is being provided by the Petitioner to his clients.

(iv) Quashing the impugned orders sent by the Respondent to the bank of the Petitioner for invoking the two Bank Guarantees of Rs. 75 lakh and Rs. 50 lakh respectively.

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