TDSAT: A JURISDICTION PROSPECTIVE

TDSAT: A JURISDICTION PROSPECTIVE

Until 1997 there was no specific system developed for the telecom disputes in India. Telecom disputes were subject to the same legal system as of any other disputes. However due to increasing teledensity and entrance of private players in telecom field in post 1994 periods, need of separate regulatory body arised.   In 1997, a separate regulatory body "Telecom Regulatory Authority of India (TRAI)" was constituted through an Act of Parliament - "Telecommunication Regulatory Authority of India Act 1997". Apart from regulating licenses issued by the central government, TRAI was also vested with certain judicial authority to adjudicate and settle disputes. In 2000, the "Telecom Regulatory Authority of India Act, 1997" was amended by the "Telecom Regulatory Authority of India (Amendment) Act, 2000" wherein the adjudicator role of the TRAI was separated and assigned to separate body "Telecom Disputes Settlement and Appellate Tribunal (TDSAT)".

 To understand the jurisdiction of telecom disputes we must understand the following questions:

Q: What is the Jurisdiction of TDSAT?

Section 14 of TRAI Act as amended in 2000 deals with jurisdiction clause of TDSAT and reads as follows:

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;

(Proviso will be discussed later)

(b)  hear and dispose of appeal against any direction, decision or order of the Authority under this Act.

Important definitions:

Licencee: “Licensee” means any person licensed under subsection (1) of section 4 of Indian Telegraph Act,1885 (13 of 1885) for providing specified public telecommunication services. [Section 2 (1)( e)]

Licensor: “Licensor” means the Central government or the telegraph authority who grants a licence under section 4 of the Indian telegraph act, 1885 (13 of 1885)[ Section 2 (1) (ea)]

Service provider: “Service provider” means the government as a service provider and includes a licensee.[ Section 2 (1) (j)]

This is pertinent to mention here that Indian telegraph act, 1885 and Indian Wireless Telegraphy Act, and 1933 are still two important pieces of legislation in telecom laws.

Hon’ble TDSAT has discussed meaning of “Any” in section 14  (a) of TRAI Act in Hathway Media Vision Private Limited v. M/s. Spider Cables (Petition No. 99(C) of 2005) and observed that: “In the TRAI Act the word ‘any’ in Section 14 has been used in a wider sense extending from one to all and ipso facto must include each and every dispute relating to telecommunication services between service providers.   Of course “any” in the context of this Act cannot be given absurd meaning and one may have to limit its sweep in a given case.”

Hon’ble Supreme court of India in Union of India v. Tata Teleservices (Maharashtra) Limited (2007) 7 SCC 517 observed that The conspectus of the provisions of the Act clearly indicates that disputes between the licensee or licensor, between two or more service providers which takes in the Government and includes a licensee and between a service provider and a group of consumers are within the purview of the TDSAT. A plain reading of the relevant provisions of the Act in the light of the preamble to the Act and the Objects and Reasons for enacting the Act, indicates that disputes between the concerned parties, which would involve significant technical aspects, are to be determined by a specialized tribunal constituted for that purpose. There is also an ouster of jurisdiction of the civil court to entertain any suit or proceeding in respect of any matter which the TDSAT is empowered by or under the Act to determine. The civil court also has no jurisdiction to grant an injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act.

In the same case Hon’ble court has further extended the the jurisdiction by stating that “It will be appropriate to understand the scope of Section 14(a)(i) of the Act and for that matter Section 14(a)(ii) of the Act also, as including those to whom licenses were intended to be issued and as taking in also disputes that commence on the tender or offer of a person being accepted. In other words, a dispute commencing with the acceptance of a tender leading to the possible issue of a licence and disputes arising out of the grant of licence even after the period has expired would all come within the purview of Section 14(a) of the Act. To put it differently, Section 14 takes within its sweep disputes following the issue of a Letter of Intent pre grant of actual licence as also disputes arising out of a licence granted between a quondam licensee and the licensor”.

Conclusively we can say that any dispute between two or more service providers are with in the exclusive jurisdiction of TDSAT. The word “Any” is to be construed in wider sense however it can not have an absurd meaning.

Q: Whether broadcasting and cable services are included in telecommunications services and comes within purview of TDSAT Jurisdiction?

Section 2(1)(k) of TRAI, Act 1997 specifically mentions that telecom service shall not include broadcasting services. However the proviso states that Central Government may notify other service to be telecommunication service including broadcasting service. In the similar language as proviso reads Section 11(1) (d) which deals with functions of TRAI authorizes Central Government to entrust other functions to TRAI. Department of Telecommunications vide Notification no. 39 [S.O. No. 44(E) and 45(E)] dated 9-1-2004 included the broadcasting and cable services in telecommunication services. Central Government under proviso of section 2(1) (k) and section 11(1) (d) made the regulation “The Telecommunication (Broadcasting and Cable Services) interconnection regulations, 2004 which includes broadcasting and cable services within the definition of Telecommunication services.

Thus now it is settled law that Broadcasting and cable services are covered within the meaning of telecommunication services and disputes thereof are subject matter of the TDSAT jurisdiction.

Q: Which department of government of India is authorized to issue license within section 4 of The Indian Telegraph Act, 1885?

The President of India under clause 3 of article 77 of Constitution made “Government of India (Allocation of Business) Rules 1961” to allocate the business of the Government of India. In the point no. 7 of the First schedule to the above said rules department of telecommunication is allocated to Ministry of Communications and Information technology and following subjects are distributed to DoT in point no. 10 of the second schedule to the above said rules:

Administration of laws with respect to any of the matters specified in this list, namely:-

(a)           The Indian Telegraph Act, 1885 (13 of 1885);

(b)           The Indian Wireless Telegraphy Act, 1933 (17 of 1933); and

(c)           The Telecom Regulatory Authority of India Act, 1997 (24 of 1997).

Thus DoT under Ministry of Communications and Information technology is the body authorized  to issue licence under section 4 of  The Indian Telegraph Act, 1885.

Q: Is there any telecom disputes which are outside the purviews of TDSAT?

Proviso to Section 14(1) (a) expressly bars following disputes from the jurisdiction of TDSAT:

(A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the 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 Dispute Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer 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 (13 of 1885);

Sub-section (1) of section 7B of the Indian Telegraph Act, 1885 reads as follows: Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.

Recently on September 1, 2009 Hon’ble Supreme court of India in General Manager, Telecom v. M. Krishnan & Anr observed that “In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred” Thus Proviso (B) of section 14(1) (a) has become redundant in view of this Judgment.

Copyright 2009:Niraj Kumar