(1.)These appeals are under S. 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 Service Providers (CMSPs) and the private respondents are the Fixed Service Providers (FSPs). The appellants approached the Tribunal under S. 14 of the Act, challenging the decision of the Government dated 25-1-2001, permitting the Fixed Service Providers to offer WLL with limited mobility. Be it be stated that the appellants had also assailed the recommendations of the Telecom Regulatory Authority of India (for short TRAI) dated 8-1-2001. 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) The decision of the Government is vitiated for non-compliance of S. 11(1)(a)(i) of the Act.
(ii) 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.
(iii) The permission to offer WLL with limited mobility is arbitrary, unreasonable and unjust decision on the part of the Government.
(iv) TRAI, while recommending by its letter dated 8-1-2001 had indicated for compliance of two conditions, but the Government decision ultimately taken is contrary to the said recommendations and, therefore, is vitiated.
(v) 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.
(vi) 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.
(vii) The Government decision allowing Fixed Service Providers to provide WLL with limited mobility without any entry fee and without any charges for allocation of spectrum and even without a competitive bidding, amount to violation of the recommendations made by the TRAI dealing with new CMSPs licensees.
(2.)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 the competent authority to accept the recommendations of the TRAI and take 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 extensively 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 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 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 not and such findings of the expertised body is 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 operators is nothing but a shedding of crocodile tears and they have been benefiting and are not in any way prejudicially affected by the introduction of WLL with limited mobility. According to the consumers, the WLLM is particularly helpful to increase tele-density in rural and semi-urban areas and, 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 WLL with limited mobility are for providing affordable and cheaper telecommunication services as well as for increasing the tele-density in the urban, semi-urban and rural areas and that should not be stalled, even if there has been any 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 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 that-
(a) The WLL with limited mobility offers benefits to consumers in rural and urban areas and it would provide uninterrupted trouble free service, as the subscriber does not have to wait endlessly for a mechanic to come and rectify the fault in the wire line.
(b) A subscriber having WLL with limited mobility can dispense with the wire line phone.
(c) The decision 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.
(d) The jurisdiction of the Tribunal is not wider than that of the 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 assail the decision of introduction of WLL with limited mobility.
(f) 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 mala 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 country, the same should not be interfered with.
(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 and they cannot be heard to complain about, when such migration is permitted to Fixed Service Providers.
(j) The fear expressed by the cellular operators is either feigned or imaginary.
(k) The cellular operators can also use latest technology including WLL with limited mobility and so also the Fixed Service Providers.
(l) A reduction of licence fee and entry fee into areas hitherto unavailable to the cellular operators like PCO is sufficient compensation and concession.
(m) There cannot be any legitimate expectation and the theory of legitimate expectation have no application. But on the other hand, it will be an illegitimate expectation.
With these conclusions, the Tribunal having dismissed the application, the cellular operator are in appeals before this Court.
(3.)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 learned Attorney Counsel, Dr. A. M. Singhvi, Mr. Ashok H. Desai and Mr. P. N. Misra.