1. The appellant Bharat Sanchar Nigam Ltd. (BSNL), a service provider, within the meaning of the Telecom Regulatory Authority of India Act, 1997 (for short Act) has challenged the communication dated 31st December, 2003 of the Telecom Regulatory Authority of India (TRAI). Challenge to the communication is on the ground that it is without any jurisdiction and is against the provisions of Act.
2. It will be appropriate at this stage to set out the communication subject matter of challenge:
"TELECOM REGULATORY AUTHORITY OF INDIA
A-2/14, SAFDARJUNG ENCLAVE, NEW DELHI-110 029
No.101-17/2003-MN(Pt.IV) Dated: December 31, 2003
Subject: Direction under Section 13 of the TRAI Act 1997 (as amended by TRAI Amendment Act 2000) regarding disconnection of POIs on account of settlement related disputes.
1. Instances have been brought to the notice of the Authority that some of the operators have resorted to disconnection of the POIs due to the reason of non-settlement of IUC payments and also for some other reasons.
2. Disconnection of POIs is not desirable in view of the inconvenience caused to the subscribers of the networks of both the interconnecting operators. The dispute between two operators in the matter should be resolved through mutual agreement. In case of failure in arriving at mutual agreement, the operator who wishes to disconnect the POIs should give a notice for disconnection of POI with a suitable time period (not less than ten days) and a copy of the same should be given to TRAI. In case TRAI does not intervene within the stipulated time period specified in the show cause notice for disconnection of POI, the operator concerned can go ahead with the disconnection of the POI. Alternatively, the interconnecting operator may approach TRAI with full information about the dispute for determination in the matter.
3. The Authority in exercise of its power conferred upon it under Section 13 read with Section 11(1)(b) of the TRAI Act, in the general consumer interest directs all service providers not to terminate the interconnection arrangements or resort to disconnection of POIS and resolve the dispute through mutual agreement failing which they should adopt the procedure as given in para 2 above.
4. This issues with the approval of the Authority.
3. We are not considering in the present case, adjudication of dispute, if any, arising before the interconnection agreement.
4. The Act was amended by the Telecom Regulatory Authority of India (Amendment) Act 2000 when Telecom Disputes Settlement & Appellate Tribunal (Appellate Tribunal) was created and its jurisdiction defined. At the same time jurisdiction of the TRAI to settle disputes between service providers was taken away. When the Act originally existed i.e. prior to this amendment by Amendment Act of 2000 the position was that TRAI had authority to decide dispute between service providers. The scheme of the constitution of the TRAI at that time itself was different. If we refer to the unamended provisions of the Act and those now existing the following position emerges.
5. Chairperson of the TRAI was to be a Judge of the Supreme Court or Chief Justice of the High Court . It is not so now. The person who has been Secretary to the Government of India for more than three years can be appointed Chairperson of the TRAI. Section 11 in Chapter III dealing with powers and functions of TRAI prescribed its functions and one of such function was in clause (n) of sub section (1) of Section 11 Section 4 as it originally existing before the amendment of 2000:
"4 (a) The Chairperson shall be a person who is or has been a Judge of the Supreme Court or who is or has been Chief Justice of a High Court.
(b) A Member shall be a person who has special knowledge of, any professional experience, in telecommunication, industry, finance, accountancy, law, management and consumer affairs;
Provided that a person who is or has been in the service of Government shall not be appointed as a member unless such person has held the post of Secretary or Additional Secretary, or the post of Additional Secretary and Secretary to the Government of India or any equivalent post in the Central Government or the State Government for a period of three years.
and that was to "settle disputes between service providers". Chapter IV containing Section 14 to 20, provided for settlement of disputes. Here it was the TRAI to settle disputes. What type of dispute TRAI could settle was provided in Section 14 which, in relevant part, is as under:
"14.(1) If a dispute arises, in respect of matters referred to in sub-section (2), among service providers or between service providers and a group of consumers, such disputes shall be adjudicated by a bench constituted by the Chairperson and such bench shall consist of two members;
Provided that if the members of the bench differ on any point or points they shall state the point or points on which they differ and refer the same to a third member for hearing on such point or points and such point or points shall be decided according to the opinion of that member.
(2) The bench constituted under sub-section (1) shall exercise, on and from the appointed day all such jurisdiction, powers and authority as were exerciseable immediately before that date by any civil court on any matter relating to-
i. technical compatibility and inter-connections between service providers;
ii. revenue sharing arrangements between different service providers;
iii. quality of telecommunication services and interest of consumers;
Provided that nothing in sub-section shall apply in respect of matters relating to - ..".
Section 4 after the amendment:
"4. Qualification for appointment of Chairperson and other members.- The Chairperson and other members of the Authority shall be appointed by the Central Government from amongst persons who have special knowledge of, and professional experience in, telecommunication, industry, finance, accountancy, law, management or consumer affairs:
Provided that a person who is, or has been, in the service of Government shall not be appointed as a member unless such person has held the post of Secretary or Additional Secretary, or the post of Additional Secretary and Secretary to the Government of India or any equivalent post in the Central Government or the State Government for a period of not less than three years.
Section 2(1)(f) reads as under:
"(f) 'member' means a member of the Authority appointed under sub-section (3) of section 3 and includes the Chairperson and the Vice-Chairperson;
6. Section 15 provided as to how an aggrieved person was to make application to TRAI and the procedure for disposal of the same. Section 16 prescribed that TRAI shall be guided by principles of natural justice and prescribed its powers with reference to certain provisions of Code of Civil Procedure, 1908. Proceedings before the TRAI were to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code and the TRAI shall be deemed to be a civil court for the purpose of section 196. Section 17 provided for right of appearance before TRAI by legal representatives. Appeal under Section 18 would lie to the High Court against the decision of the TRAI. Section 19 provided that order passed by TRAI or High Court shall be executable as a decree and Section 20 provided for penalty for willful failure to comply with the orders of the TRAI or High Court. All this changed after the amendment of 2000 to the Act and TRAI was bereft of all these powers.
After amendment (Pesent Position):
7. Now Chapter IV of the amended Act relates to the establishment, powers and procedures of the Appellate Tribunal. Presently the Chairperson of the Appellate Tribunal could be one who is or has been a Judge of the Supreme Court or the Chief Justice of a High Court. Section 14 after the amendment reads as under:
"14. Establishment of Appellate Tribunal. - The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to -
(a) adjudicate any dispute -
(i) between a licensor and a licensee;
(ii) between two or more service providers;
(iii) between a service provider and a group of consumers:
Provided that nothing in this clause shall apply in respect of matters relating to -
(A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969);
(B) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986);
(C ) dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885;
(b) hear and dispose of appeal against any direction, decision or order of the Authority under this Act".
8. Section 14A provides for as to how applications for settlement of disputes and appeals are to be made to the Appellate Tribunal. Sections 14B to 14N introduced by the Amending Act of 2000 are not quite relevant for our purpose as these deal with the composition of the Appellate Tribunal and powers of the Chairperson of the Appellate Tribunal. Section 15 provides that no civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which the Appellate Tribunal is empowered under this Act to determine and no injunction shall be granted by any Court or other Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. Section 16 provides for procedure to be followed by the Appellate Tribunal. Section 17 provides for right to represent before the Appellate Tribunal not only by legal practitioner but also by other categories of professionals like Chartered Accountants etc. Appeal lies to the Supreme Court under Section 18 against any order, not being interlocutory order of the Appellate Tribunal on the ground specified in Section 100 of the Code of Civil Procedure. Sections 19 and 20 are similar to those Sections earlier to Amending Act of 2000 except that for the word "Authority" (TRAI) it is now the Appellate Tribunal. Section 14M provides that all applications, pending for adjudication of disputes before TRAI immediately before the establishment of Appellate Tribunal shall stand transferred to the Appellate Tribunal.
9. Difference in the provisions existing before the amendment of the Act and after is quite stark. While earlier Chairperson of TRAI was to be a person who is or has been a Judge of the Supreme Court or Chief Justice of High Court, now it is Secretary or who has been Secretary to the Government of India. TRAI is now ceased to be a judicial authority. Functions of the TRAI and that of the Appellate Tribunal are well defined and well focused. While Chapter-IV prior to amendment gave powers to TRAI for settlement of disputes and now Chapter-IV confers powers on the Appellate Tribunal. In fact, earlier before amendment TRAI could decide 'dispute', but now much wider powers have been conferred on the Appellate Tribunal to adjudicate 'any dispute'. While functions of the TRAI are prescribed under Section 11, the jurisdiction of the Appellate Tribunal is prescribed under Section 14.
10. Dispute in the present case arises out of interconnection agreement between the BSNL and the other service provider. Interconnection in simple terms is the commercial and technical arrangement under which service provider can connect their equipment, network and services to enable customers to have access to the customers, services and networks of other service providers. Interconnection may be described as a procedure by which telecommunication networks and services are linked in such a way that they can function as a coherent system so that a subscriber in any network may have access to any other subscriber in a different network. An interconnection arrangement is a legally binding agreement between interconnecting carriers. It is a contract that stipulates the obligations and responsibilities of each contracting party with regard to interconnect services. An interconnection agreement specifies commercial, technical, operational and dispute settlement terms. Interconnection is important. The need for interconnection results from the very nature of the telecommunication industry being a network industry. In the exercise of its powers conferred upon it by law, license and interconnection agreement, TRAI is to ensure that interconnection regime is fair and efficient. Question that has been raised before us is whether TRAI can enter the field of dispute resolution process when dispute relates to the terms and conditions of the interconnection agreement between the service providers and a service provider (appellant in the present case) resorts to disconnection of POI (Point of Interconnection) due to the reason of non-settlement of IUC (Interconnect Usage Charges) payments and also for some other reasons.
11. It is apparent that under the Act role of TRAI as regulator is to intervene at the time of interconnect arrangement so that the terms of the interconnect arrangement are fair and appropriate. The question that is raised is whether the TRAI can intervene even after the interconnection agreement has been entered into between the service providers when a dispute arises on the terms and conditions of that agreement which are subject to licence and
directions/regulations/determinations of TRAI or any order of the licensor.
12. Mr. Meet Malhotra, learned counsel for the TRAI submitted that TRAI has no intention to usurp the jurisdiction of the Appellate Tribunal and that it was solely guided in issuing the impugned communication by the interest of the consumers if there is sudden disruption of interconnection. We need not reassure him that the Appellate Tribunal is concerned as well. It is the case of TRAI that disconnection is corollary of a dispute and if a dispute arises, one or the other party must approach either TRAI or Appellate Tribunal and not resort to unilateral disconnection as a means of settling such dispute. According to TRAI the word 'dispute' cannot be given meaning which it does not connote in view of the circumstances in which it has been used and that mere use of a word 'any dispute' cannot have general application and it has to be read in the context in which it has been used. Then Mr. Malhotra submits that the impugned direction nowhere bars any service provider from approaching the Appellate Tribunal. It is difficult to appreciate this line of reasoning by TRAI. To support its impugned direction, it is stated that TRAI draws its powers from the provisions as contained in sub clauses (i), (ii), (iii) and (iv) of clause (b) of sub-section (1) of Section 11 which are as under:
"11. Functions of Authority.- (1) Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the functions of the Authority shall be to -
b) discharge the following functions, namely:-
(i) ensure compliance of terms and conditions of licence;
(ii) notwithstanding anything contained in the terms and conditions of the licence granted before the commencement of the Telecom Regulatory Authority of India (Amendment) Act, 2000, fix the terms and conditions of inter-connectivity between the service providers;
(iii) ensure technical compatibility and effective inter-connection between different service providers;
(iv) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services;
(c ) ..............
13. It is then submitted by Mr. Malhotra that BSNL has the following provision in its interconnection agreement with other service providers, which is as under:
"Services provided to a CMTS provider may be disconnected after giving one-month notice. Such disconnection shall be duly intimated to CMTS provider with copy to TRAI. Such disconnection shall be subjected to license/interconnect condition/regulation issued by TRAI and the orders as issued by Licensor from time to time."
14. Then the provisions of the licenses of both BSO (Basic Service Operators) and CMSPs (Cellular Mobile Service Providers) are areferred to which are as under:
The terms and conditions of interconnection including standard interfaces, points of interconnection and technical aspects will be as mutually agreed between the service providers subject to compliance of prevailing regulations, directions and determination issued by TRAI under TRAI Act'.
The Licensee shall be bound by the terms and conditions of this License Agreement as well as by such orders/directions/regulations of TRAI as per provisions of the TRAI Act, 1997 as amended from time to time and instructions as are issued by the Licensor/TRAI."
15. No one disputes the functions of the TRAI under the aforesaid provisions. It is stated that this provision in the interconnection agreements of BSNL is on its own volition subject to TRAI's interconnect conditions/regulation and that TRAI by the impugned direction is merely seeking to introduce a uniform interconnection condition for all interconnection providers prevalent in the Telecom Sector. In the impugned directions instead of one month notice as provided in the interconnection agreement of BSNL, TRAI in its wisdom has now provided that notice should not be less than 10 days' period. Now it is the submission of Mr. Maninder Singh, learned counsel for the BSNL that Section 11(1)(b)(ii) of the Act does not empower TRAI to fix terms and conditions of interconnectivity between the service providers who have been granted license after the amending Act of 2000 and have entered into interconnection agreements with the approval of TRAI. Nevertheless, since he said BSNL has no objection to the fixing of maximum period of 10 days as provided in the impugned direction, we need not deal with his argument on the interpretation of Section 11(1)(b)(ii).
16. Mr. Ramji Srinivasan in his address made the following submissions:
1. Chapter-IV which gave powers to TRAI for settlement of disputes has been amended and that power and much more is now conferred on the Appellate Tribunal. Instead of the word "a dispute" now it is "any dispute". Jurisdiction vested in TRAI for settlement of disputes has been withdrawn after the amendment by the Amending Act of 2000 (Act 2 of 2000) and another statutory body i.e. Appellate Tribunal has been created and empowered to execute those functions. This is the parliamentary intent which is evident on the face of the legislation as it now appears. This legislative intent must be given effect to. TRAI has been divested of its jurisdiction to decide and settle the dispute and instead Appellate Tribunal has been vested with jurisdiction to settle and adjudicate any dispute. This provision vesting the Appellate Tribunal to decide any dispute is far wider than the jurisdiction of the erstwhile TRAI possessed under the unamended Act. It is settled law that legislative intent should always be given effect unless it leads to absurd result. Every statute should be interpreted on the basis of the terms appearing on the face of it. Statement of law on this aspect is quite explicit.
"In all ordinary cases and primarily the language employed is the determining fact of intention" [New Piece Goods Bazar Co. Ltd. v. CIT, Bombay, AIR 1950 SC 165, p.168]. "The first and primary rule of construction, said Gajendragadkar, J. 'is that the intention of the Legislature must be found in the words used by the Legislature itself." [Kannailal Sur v. Paramandhi Sadhukhan, AIR 1957 SC 907, p. 910]/ "When the words of a statute are clear, plain and unambiguous, i.e. they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences" [Nelson Motis v. Union of India, AIR 1992 SC 1981, p. 1984: (1992) 4 SCC 711)]. "When a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself". [ State of Uttar Pradesh v. Vijay Anand Maharaj, AIR 1963 SC 946, p. 950 (SUBBA RAO, J)].
2. There is marked difference in the provision of law prior to the amendment of the Act and after its amendment by the Amending Act of 2000. Section 16(3) recognizes that every proceeding before the Appellate Tribunal shall be deemed to be a "judicial proceeding". Thus, the orders of the Appellate Tribunal would be judicial orders, and would attain finality, if not appealed against. Any unilateral dispute resolution by any other entity not vested with such powers, would be without jurisdiction and cannot be binding or final as against the non-consenting parties.
3. To the extent that the impugned communication dated 31.12.2003 merely states or reproduces the terms agreed to by the parties in their Interconnect Agreements, there can be no grievance raised in the Direction contained therein requiring the BSNL to provide TRAI with a copy of any such show cause notice. While a notice period of 30 days is stipulated in the Interconnect Agreement, TRAI had mandated a minimum period of 10 days. TRAI has introduced a power to intervene within the stipulated time period specified in the "notice". In such a case, the intervention itself may be challenged if it is unreasonable or without any basis and may be open to examination as to when it arises.
4. The direction then mandates that the interconnecting operator may approach the TRAI with full information about the dispute for determination in the matter. This process has been mandated in paragraph 3 to be followed in every case before termination of Interconnection. It is this portion of the Direction that is in controversy. Such a mandate requiring either of the parties to apply to TRAI for determination of any such settlement related dispute, would be wholly without jurisdiction and contrary to the provisions of Section 14 and Section 11(1)(b) of the TRAI Act (as amended). To this extent, such a direction would also not be in consonance with the provisions of Section 13 of the Act. While the intent of the TRAI appears to be to discourage abrupt disconnection of the interconnection facilities so that the subscribers and consumers are not put to any inconvenience of disruption in service, yet, the portion of the Direction that seeks to reserve unto itself the power to resolve disputes would run counter to the Act and the intent of the Parliament and it would thus be ultra vires the Act, as amended w.e.f. 24.01.2000.
5. The intention of creating a separate Tribunal was to strengthen and apply more effectively, the principles of natural justice so as to remove even a shadow of a doubt in the minds of the stakeholders that the TRAI as an entity formulating the rules and regulations, would be acting as a judge in its own cause, while enforcing them against the stakeholders. The establishment of the Appellate Tribunal as a separate entity and vesting in it judicial powers strengthens the rule of law. This does not derogate from the regulation making powers vested in the TRAI, who would be free to continue to frame rules and regulations and issue directions under section 13 of the Act and also under the terms of the licence in connection with Interconnection Agreement between service providers. In the event of disputes arising as to the interpretation of the same or on any other controversy relating to the same, the law itself provides for the dispute resolution mechanism by way of jurisdiction specially vested in the Appellate Tribunal. The Hon'ble Supreme Court in Cellular Operators Association of India vs. Union of India (2003) 3 SCC 186 held at page no.213 that :
"37. There cannot be any doubt whatsoever that when jurisdiction upon a court or a tribunal is conferred by a statute, the same has to be construed in terms thereof and not otherwise...."
17. We would say that by and large the submissions of Mr. Srinivasan are quite adequate in the context of controversy raised before us.
18. The jurisdiction of Appellate Tribunal is quite wide. The word "dispute" is a word of common parlance and we need not refer to any dictionary whether legal or otherwise for the meaning of the word "dispute. Jurisdiction of the Appellate Tribunal is circumscribed only in three instances where disputes can be adjudicated upon by MRTP Commission, Consumer Forums and that falling under Section 7B of the Indian Telegraph Act, 1885. Appellate Tribunal is the final fact finding body and appeal to Supreme Court lies on a substantial question of law. In the case of Cellular Operators Association of India - (2003) 3 SCC 186 the Court was examining the extent and parameters of jurisdiction of Appellate Tribunal under Section 14 of the Act. Controversy in the Supreme Court related to recommendations of TRAI on issues relating to WLL (wireless in local loop) with limited mobility which were accepted by the Central Government. Recommendations of TRAI were made under clause (a) of sub section (1) of Section 14 of the Act. The Court said:
"Suffice it to say, chapter IV containing Section 14 was inserted by amendment of the year 2002 and the very Statement of Objects and Reasons would indicate that to increase the investors' confidence and to create a level playing field between the public and the private operators, suitable amendment in the Telecom Regulatory Authority of India Act, 1997 was brought about and under the amendment, a tribunal was constituted called the Telecom Disputes Settlement and Appellate Tribunal for adjudicating the disputes between a licensor and a licensee, between two or more service providers, between a service provider and a group of consumers and also to hear and dispose of appeal against any direction, decision or order of the Authority. The aforesaid provision was absolutely essential as the organizations of the licensor namely MTNL and the BSNL were laso service providers. That being the object for which an independent tribunal was constituted, the power of that tribunal has to be adjudged from the language conferring that power and it would not be appropriate to restrict the same on the ground that the decision which is the subject matter of challenge before the tribunal was that of an expert body. It is no doubt true, to which we will advert later, that the composition of Telecom Regulatory Authority of India as well as the constitution of GOT-IT in April,2001 consists of large number of eminent impartial experts and it is on their advice, the Prime Minister finally took the decision, but that would not in any way restrict the power of the appellate tribunal under Section 14, even though in the matter of appreciation though the tribunal would give due weight to such expert advice and recommendations. Having regard to the very purpose and object for which the appellate tribunal was constituted and having examined the different provisions contained in Chapter IV, more particularly the provision dealing with ousting the jurisdiction of Civil Court in relation to any matter which the appellate tribunal is empowered by or under the Act, as contained in Section 15, we have no hesitation in coming to the conclusion that the power of Appellate Tribunal is quite wide, as has been indicated in the statute itself and the decisions of this Court dealing with the power of a Court, exercising appellate power or original power, will have no application for limiting the jurisdiction of the appellate tribunal under the Act. Since the tribunal is the original authority to adjudicate any dispute between a licensor and a licensee or between two or more service providers or between a service provider and a group of consumers and since the tribunal has to hear and dispose of appeals against the directions, decisions or order of the TRAI, it is difficult for us to import the self-contained restrictions and limitations of a Court under the Judge made law to which reference has already been made and reliance was placed by the learned Attorney General. By saying so, we may not be understood to mean that the appellate tribunal while exercising power under Section 14 of the Act, will not give due weight to the recommendations or the decisions of the expert body like TRAI or in the case in hand GOT-IT, which was specifically constituted by the Prime Minister for redressing the grievances of the cellular operators. We would, therefore, answer the question of jurisdiction of the appellate tribunal by holding that the said tribunal has the power to adjudicate any dispute between the persons enumerated in clause (a) of Section 14 and if the dispute is in relation to a decision taken by the government, as in the case in hand, due weight has to be attached both to the recommendations of the TRAI which consists of an expert body as well as to the recommendations of the GOT-IT, a committee of eminent experts from different fields of life which had been constituted by the Prime Minister."
19. Presently there is no dispute that terms and conditions of interconnection between the service providers can be superimposed by TRAI in the exercise of its powers under the Act and that is not the issue before us. Under the impugned direction when the operator who wishes to disconnect POIs (Points of Interconnections), has to give notice to TRAI. So far so good. Difficulty arises when direction says (i) in case TRAI does not intervene within the stipulated period specified in the show cause notice for disconnection of POI the operator concerned can go ahead with disconnection of POI and (ii) alternatively the interconnecting operator may approach TRAI with full information about the dispute for determination in the matter. There can be many reasons when an operator wants to resort to disconnection of POI. If the interconnecting operator feels the reasons are outside the terms and conditions of the interconnect agreement or in breach thereof he can approach Appellate Tribunal seeking appropriate relief. Prima facie if Appellate Tribunal finds that the action of the operator seeking to disconnect POI is not valid it can by ad interim ex parte order stay the notice and thereafter hear the parties and decide the dispute. For that the Appellate Tribunal has to consider the terms and conditions of the interconnection agreement under which BSNL, service provider, can resort to disconnection. These terms and conditions are subject to license/interconnect conditions/regulation/directions issued by TRAI and the orders issued by the licensor from time to time and in terms of the license and the interconnection agreements between the parties. There could not be more quicker, effective and speedy remedy for interconnecting operator for decision of the dispute and to safeguard the rights of the consumers as well. This is so, as rightly pointed out by TRAI that :
" The interconnection is the lifeline of the telecom service and any disruption thereof has the effect of bringing the entire system to a grinding halt". Moreover, Appellate Tribunal can impose costs on the party in default.
20. By the impugned direction what TRAI wants to do is to examine the show cause notice of the operator wishing to disconnect POI and then either to keep quiet allowing the POI to be disconnected or otherwise give directions. The other alternative is for the interconnecting operator to approach TRAI for the dispute resolution with full information for the TRAI to give its decision. Both these approaches of TRAI are wrong and against the provisions of the Act. There is no transparency and there is no formal adjudication. Such approach strikes at the very root of the principles of natural justice. TRAI also admits that : "In the event of a dispute between the service providers regarding interconnection, any one of the service providers may approach the Hon'ble TDSAT, for resolution of the same.". It is also stated that there is no question of "dispute" in a literal sense as has been provided in Section 14 of the Act. But then goes to add that merely mention of the word "dispute" does not curtail or take away the mandatory regulatory powers of TRAI specially in matters of interconnection as contained in the statute. Nobody is denying that regulatory power of the TRAI, but dispute resolution mechanism is within the jurisdiction of Appellate Tribunal. TRAI cannot devise its own method of dispute resolution outside the provisions of the Act.
21. Any sudden disconnection is certainly detrimental to the interest of end users i.e. consumers. Department of Telecommunications (DOT) as licensor can put appropriate conditions in the license to see that there is no sudden disruption of the service provided by the service provider and TRAI is statutorily empowered to require service providers to put appropriate stringent conditions in the interconnection agreement between the service providers and at the same time ensure technical compatibility and effective interconnection and also lay down standard of quality of service to be provided by the service providers and other conditions as provided in clause (b) of sub section (1) of Section 11 of the Act. But when dispute arises if there has been any breach of the license agreement or of the terms of the interconnectivity between the service providers, it is Appellate Tribunal (TDSAT) which is the sole judicial authority to decide the dispute on a complaint filed by the service provider, or group of consumers or licensor, to see that the service providers conform to the terms and conditions imposed by the licensor in its license and by the TRAI in the interconnection agreement between the service provides. Functions of TRAI and Appellate Tribunal are in altogether different planes.
22. This appeal is, therefore, allowed and the impugned direction is set aside except the period of notice for disconnection of POI which shall not be less than 10 days.
We record our appreciation of the submissions made by Mr. Meet Malhotra who appeared for TRAI and presented his case with all fairness. We also record our appreciation of the assistance rendered to us by Mr. Ramji Srinivasan who appeared as Amicus Curiae.
23. There will be no order as to costs.