M.Sundar, J. - (1.) Instant intra-court appeals (two writ appeals) under Clause 15 of the Letters Patent are directed against a common order made by a learned Single Judge of this Court, being common order dated 11.11.2016 made in W.P.Nos.1875 of 2013 and 3652 of 2013. W.A.No.283 of 2017 is directed against W.P.No.1875 of 2013 and W.A.No.285 of 2017 is directed against W.P.No.3652 of 2013. We propose to dispose of both these intra-court appeals by this common order.
(2.) Facts that are absolutely essential for understanding and appreciating our order are set out infra under the caption 'Facts in a nutshell'.
(3.) Facts in a nutshell: 3(a) For the sake of brevity, clarity and convenience, following abbreviations and short forms are used in this order : (i)'Tata Communications Ltd.' (appellant in W.A.No.283 of 2017) is referred to as 'TATAs'; (ii)'Bharti Airtel Ltd.', (appellant in W.A.No.285 of 2017) is referred to as 'Bharti'; (iii)'Telecom Regulatory Authority of India' (Respondent No.1 in both writ appeals), is referred to as 'TRAI'; (iv)'Bharat Sanchar Nigam Ltd.' (Respondent No.2 in both writ appeals) is referred to as 'BSNL'; (v)'Association of Competitive Telecom Operators' is referred to as the 'said Association' (Respondent No.3 in both appeals); (vi)'Reliance Communications Ltd.' (Respondent No.4 in both writ appeals) is referred to as 'RCL'; (vii)'Reliance Jio Info Comm Ltd.,' intervenor in both writ appeals is referred to as 'RJIL'; (viii)'The Telecom Regulatory Authority of India Act, 1997' is referred to as 'TRAI Act'; (ix)'International Telecommunication Access To Essential Facilities At Cable Landing Stations Regulations, 2007 (5 of 2007)' dated 7.6.2007 is referred to as 'CLS Regulation'; (x)'International Telecommunication Access To Essential Facilities At Cable Landing Stations (Amendment) Regulations, 2012 (No.21 of 2012)' dated 19.10.2012 is referred to as 'CLS Amendment Regulation'; (xi)'The International Telecommunication Cable Landing Stations Access Facilitation Charges and Co-location Charges Regulations, 2012 (No.27 of 2012)' dated 21.12.2012 is referred to as 'CLS Co-location Charges Regulation'; (xii)'CLS Regulations', 'CLS Amendment Regulation' and 'CLS Co-location Charges Regulation' are collectively referred to as 'impugned Regulations'; (xiii)'Cable Landing Station' and 'Cable Landing Stations' are referred to as 'CLS' and 'CLSs' respectively; (xiv)'Department of Telecommunications' is referred to as 'DOT'. (xv)'Statement of Objects and Reasons' is referred to as 'SOR'. 3(b) To put it in very simple terms, the entire matter pertains to a very complex technology and technical equipment by which various communication service providers in India are linked to the rest of the world by way of submarine fibre cables, which run beneath the sea. 3(c) The diagrammatic depiction of this complex system as given by Bharti at the hearing is reproduced hereinbelow : 3(d) On the plea that the above diagrammatic depiction may not be completely correct, TRAI has placed before us another diagrammatic depiction and we deem it appropriate to reproduce the same also. The diagrammatic depiction as given by TRAI is as follows: 3(e) What we are concerned with in the instant writ appeals are CLSs and particularly charges payable by the access seekers to owners of CLSs. 3(f) In sum and substance, the impugned Regulations regulate and fix charges payable by access seekers to the owners of CLSs. 3(g) In and by the 2007 CLS Regulations, TRAI brought in a regime of self Regulation with regard to CLS owners. To be noted, under this CLS Regulation, TRAI approved the rates that are to be charged by the CLS owners from the access seekers, but did not fix the rates. However, this CLS Regulation dated 07.06.2007 is pursuant to an amendment to licence agreement of TATAs with DOT dated 05.02.2004. We are informed that this amendment was brought in on 15.01.2007. 3(h)2012 CLS Amendment Regulation, authorized TRAI to prescribe charges for CLSs. In other words, CLS amendment Regulation empowered TRAI to fix charges which the CLS owners can charge from their clients i.e., access seekers. From 'approving' charges, TRAI started moving towards 'fixing' charges. In effect this is the first step in moving away from a self regulatory regime. 3(i) Immediately thereafter and pursuant to the CLS Amendment Regulation, TRAI came up with CLS Co-location charges Regulation wherein and whereby the charges or in other words, the rates which CLSs can charge were fixed. 3(j) We are informed that by this CLS Co-location Charges Regulation, the charges fixed by TRAI has brought down the rates that were approved in 2007 by as much as 79% to 97%. From the submissions made before us, we notice that this is the trigger for this entire litigation. 3(k) Though self Regulation regime qua rates of CLSs were in operation from 2007, writ petitions out of which the instant writ appeals arise were filed only when the 'CLS Co-location Charges Regulation' were brought in on 21.12.2012. 3(l) Though elaborate submissions were made before us, from the submissions made, we are of the view that the entire crux and gravamen of this lis pertains to (i) competence of TRAI to make the impugned Regulations, (ii) whether the impugned Regulations have been made in conformity with obtaining principles which flow from the evolved form of subordinate legislation making and (iii)whether the impugned Regulations are hit by the vice of manifest arbitrariness. To be noted, both (ii) and (iii) are on a demurrer qua (i). This being hypertechnical and TRAI being an expert body, scope of judicial review is also a matter of focus.;