POWER TO CHALLENGE REGULATIONS MADE BY TRAI DOES NOT VEST WITHIN TDSAT
The present analysis has been done to understand whether the power to entertain challenge to Regulations made by the Telecom Regulatory Authority of India (“TRAI”) vests within Telecom Regulatory Authority of India “TDSAT” or the High Court of appropriate jurisdiction?
Background: Appeal filed by Bharat Sanchar Nigam Limited (“BSNL”) & Others against a TDSAT order (in RE: B.S.N.L vs Telecom Regulatory Auth.Of India) before a three judge bench comprising of G.S. Singhvi, B.S. Chauhan, Fakkir Mohamed Kalifulla in the Hon’ble Supreme Court, where the Authority was directed to relook into 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 [Telecommunication Interconnection (Port Charges) Amendment Regulation] and the date of the order.
By an order dated 6.2.2007 passed in Civil Appeal No. 3298 of 2005 Telecom Regulatory Authority of India (Authority) v. Bharat Sanchar Nigam Limited (BSNL) and connected matters, a two Judge Bench made a reference to the larger Bench for determination of some substantial questions of law of public importance one of which was the powers and competency of the Tribunal in order to entertain a challenge to the Regulations framed by the Authority from time to time.
Issue: Whether in exercise of the power vested in it under Section 14(b) of the Act, TDSAT has the jurisdiction to entertain challenge to the regulations framed by the Authority under Section 36 of the Act?
Held: In exercise of the power vested in it under Section 14(b) of the Act, TDSAT does not have the jurisdiction to entertain the challenge to the Regulations framed by the Authority under Section 36 of the Act.
Under 36(1) of the Act, the Authority can make regulations to carry out the purposes specified in various provisions of the Act. Power under section 36 is legislative as opposed to administrative. By virtue of section 37, the regulations made under the Act are placed on par with the rules which can be framed by the central government under section 35, and being in the nature of subordinate legislations, the regulations framed by the authority can be made ineffective or modified by the Parliament and no other body. Exercise of the power under 36(1) is only subject to the exceptions laid down in the Act itself and cannot be limited by any other authority.
Thus, after anlaysing a plethora of judgments on the issue and listening to detailed submissions by Ld. Counsels for both the Appellants and the Respondents, the Hon’ble Supreme Court held the following-
“In exercise of the power vested in it under Section 14(b) of the Act, TDSAT does not have the jurisdiction to entertain the challenge to the regulations framed by the Authority under Section 36 of the Act.
65. As a corollary, we hold that the contrary view taken by TDSAT and the Delhi High Court does not represent correct law. At the same time, we make it clear that the aggrieved person shall be free to challenge the validity of the regulations framed under Section 36 of the Act by filing appropriate petition before the High Court.”
Adv Payal Kakra (Partne, K&T Law Offices)
Adv Sushant Chaturvedi (Associate, K&T Law Offices)
 CIVIL APPEAL NO. 5253 OF 2010