Calcutta High Court
Cesc Limited vs Union Of India And Ors on 18 May, 2023
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
OD-13
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WPO/1168/2023
CESC LIMITED
VS
UNION OF INDIA AND ORS.
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date : 18th May, 2023
Appearance:
Mr. Jaydip Kar, Sr. Adv.
Mr. Debanjan Mukherjee, Adv.
Mr. Shuvajit Bose, Adv.
...for the petitioner
Mr. Dhiraj Trivedi, Ld. Dy. S. G.
Mr. Indrajeet Dasgupta, Adv.
...for the respondents
The Court:- Learned senior counsel appearing for the petitioner raises an arguable question as to whether the respondent authorities are justified in charging royalty, treating the petitioner as a licensee within the contemplation of the Indian Telegraph Act, 1885.
By placing reliance on Section 164 of the Electricity Act, 2003, it is argued that an appropriate Government (in the present case, the State Government) may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communication necessary for the proper coordination of works, confer upon any public officer, licencee etc. subject to such conditions as it may think fit to impose the provisions of the Indian Telegraph Act, 1885 any of the powers which 2 the telegraph authority possesses under the Act with regard to the licence of the telegraph lines and telegraph posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained.
Learned senior counsel also places reliance on Section 2(77) of the 2003 Act, which defines the term "works" to include electric lines etc. Section 42 of the said Act, on the other hand, indicates that it shall be the duty of the distribution licensee to develop and maintain an efficient, coordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in the Act.
Again, citing Section 3(1AA), it is argued that the definition of "telegraph" is very specific in the said provisions. Reading the said provision with Section 4 of the 1885 Act, it is seen that the same contemplates exclusive privilege in respect of telegraph and power to grant licences. Under Section 4(1), the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs and for the said purpose, may grant licence on certain conditions.
It is argued that in the said breath, the petitioner, who is operating as an 'Authority' under the 1885 Act, cannot be charged in the capacity of a 'licencee', which charges are mutually exclusive and contradictory to each other.
It is further contended that under Section 10 of 1885 Act, which falls within part III of the said Act, the telegraph authority has powers to place and maintain telegraphs lines and posts. It is argued that even if the installation of optical fibre technology, for the purpose of distribution of electricity, has a component of telecommunication, the same cannot strictly fall within the 3 purview of the functions of a licencee under the 1885 Act. Since the optical fibre was installed in the first place to discharge the petitioner's functions as an Authority under the 1885 Act in terms of Section 164 of the 2003 Act, it is argued that the said installation is not subject to being charged in the form of a licence.
The learned Deputy Solicitor General, appearing for the Union of India and the respondents, contends at the outset that the present writ petition is not maintainable in view of the operation of Section 14 of the Telecom Regulatory Authority of India (TRAI) Act. Under the said provision, a dispute between two service providers or a service provider and a consumer is required to be resolved before the appropriate authority as designated therein.
That apart, the learned Deputy Solicitor General also controverts the arguments made on law and fact by learned senior counsel for the petitioner.
Since the present hearing is confined only to the consideration of the prayer for interim orders, a detailed consideration of the entire provisions of law is not being gone into at this stage.
However, insofar as the argument of the respondents as regards non- maintainability of the writ petition is concerned, the same is turned down on two scores. First, it is well-settled that matters of first principles of law insofar as charging licence fees under the 1885 Act is concerned fall within the domain of exploration of the interplay between two statutes. Hence, the same cannot be confined to a mere dispute as contemplated in the Telecom Regulatory Authority of India (TRAI) Act, to empower the tribunal exclusively to decide such issues. That apart, the present dispute is not between two service providers or a service 4 provider and a consumer, but between the Central Government and a licencee/Authority under the 1885 Act. As such, it cannot be said that the writ Court's domain of judicial review is precluded by operation of Section 14 of the TRAI Act.
Since an arguable question has been raised by learned counsel, the writ petition is required to be heard on its merits.
Insofar as the stay of further charges being levied by the respondents is concerned, such an order would be an unnecessary interdiction at this premature stage. However, it is made clear that whatever charges are levied from the date of filing of the writ petition on the assumption that the petitioner is a licencee under the 1885 Act in terms of the impugned notice, shall be subject to the result of the present writ petition. All such charges paid by the petitioner will be without prejudice to the rights and contentions of the parties insofar as the present writ petition is concerned.
The respondents shall file their affidavit(s) within June 20, 2023. Reply thereto, if any, shall be filed within June 27, 2023.
The matter shall next be listed for hearing on June 28, 2023.
(SABYASACHI BHATTACHARYYA, J.) S.Bag