Calcutta High Court (Appellete Side)
Reliance Communications Ltd. & Ors vs The Union Of India & Ors on 28 March, 2016
Author: Arijit Banerjee
Bench: Manjula Chellur, Arijit Banerjee
In The High Court at Calcutta
Civil Appellate Jurisdiction
In Appeal From an Order Passed In Its
Constitution Writ Jurisdiction
Appellate Side
MAT 204 of 2016
CAN 1368 of 2016
WP 482 (W) of 2016
Reliance Communications Ltd. & Ors.
-Vs.-
The Union of India & Ors.
Coram : The Hon'ble The Chief Justice Dr. Manjula
Chellur
&
The Hon'ble Justice Arijit Banerjee
For the Petitioner : Mr. S. N. Mookherjee, Adv.
Mr. Jishnu Saha, Adv.
Mr. Sanjib Kr. Mal, Adv.
Mr. Debnath Ghosh, Adv.
Mr. Atanu Roy Chaudhuri, Adv.
Mr. Ravi Kapur, Adv.
Mr. P. Majumdar, Adv.
Mr. Souvik Kanti Chakraborty, Adv.
Ms. Anindita Ghosh, Adv.
For the Respondent : Mr. Kaushik Chanda, Ld. Addl. Solicitor
General
Mr. Subrata Roy, Adv,
Heard On : 15.02.2016 & 19.02.2016
CAV On : 19.02.2016
Judgment On : 28.03.2016
Arijit Banerjee, J.:
(1) This is an appeal against the judgment and order dated 27 January, 2016 passed by the Ld. Trial Judge whereby the Ld. Judge dismissed WP 482 (W) of 2016 (Reliance Communications Ltd. & Ors.- vs.-The Union of India & Ors.) on the ground of maintainability with liberty to the petitioners to approach Telecom Disputes Settlement and Appellate Tribunal (hereinafter referred to as 'TDSAT') in accordance with law, if so advised. By consent of the parties, both the stay application and the appeal have been taken up for hearing together and both are being disposed of by the present judgment and order. Factual background of the case:-
(2) At all material times the appellant no. 1 (in short 'RCL') was and still is engaged in the business of providing telecom services throughout India. It is not disputed that RCL is a 'service provider' within the meaning of Section 2(1)(j) of the Telecom Regulatory Authority of India Act, 1997 (in short the 'TRAI Act'). RCL was administratively allocated spectrum in the 800 MHz band in twenty circles and necessary licences were issued in its favour which are still valid.
(3) A licence agreement dated 14 November, 2003 was entered into by and between the RCL and the Union of India for provision of Unified Access Services after Migration (in short the said 'Licence Agreement').
The said licence agreement contains, inter alia, the following clauses:-
(a) The licence agreement would be valid for a period of twenty years commencing from 20 July, 2001 unless revoked earlier for reasons as specified elsewhere in the document (Clause 3).
(b) The licensor reserves the right to modify, at any time, the terms and conditions of the licence if in the opinion of the licensor, it is necessary or expedient to do so in public interest or in the interest of the security of the State or for the proper conduct of the telegraphs.
Decision of the licensor shall be final and binding in this regard. (Clause 5.1)
(c) One time non-refundable Prescribed Entry Fee of Rs. 170.7 crores has already been paid by the licensee (Clause 18.1)
(d) For Wireless operations in Subscriber access network, the frequencies shall be assigned by WPC wing of the Department of Telecom from the frequency bands earmarked in the applicable National Frequency Allocation Plan and in coordination with various users. Initially a cumulative maximum of upto 4.4 MHz + 4.4 MHz shall be allocated in the case of TDMA based systems @ 200 KHz per carrier or 30 KHz per carrier or a maximum of 2.8 MHz + 2.5 MHz shall be allocated in the case of CDMA based systems @ 1.25 MHz per carrier, on case by case basis subject to availability. While efforts would be made to make available larger chunks to the extent feasible, the frequencies assigned may not be contiguous and may not be the same in all cases or within the whole Service Area. For making available appropriate frequency spectrum for roll out of services under the licence, the type(s) of Systems to be deployed are to be indicated. [Clause 43.5(1)] (4) Prior to 2 February, 2012, spectrum was allocated to service providers administratively by the Union of India. By an order of the Hon'ble Supreme Court, it was made mandatory that the grant of licence and spectrum would be through the process of auction and all auctions were to be based on recommendations of the Telecom Regulatory Authority of India (in short 'TRAI'). (5) On 28 December, 2012 and 15 March 2013, the Union of India passed orders levying One Time Spectrum Charges for GSM (Global Standard Mobile) and CDMA (Code Division Multiple Access) service providers. On 28 March, 2013, the Union of India raised a demand on RCL for payment of one time spectrum charges to the tune of Rs. 1757.89 crores.
(6) RCL filed WP No. 10410 (W) of 2013 and WP No. 2590 (W) of 2013 in this court challenging the orders dated 28 December, 2012 and 15 March, 2013 as also the demand dated 28 March, 2013, primarily on the ground that the same were without jurisdiction, being ultra vires Section 4 of the Telegraph Act and having been issued without the conditions specified in Clause 5.1 of the said licence agreement having been fulfilled. By an order dated 14 February, 2013 passed in WP No. 2590 (W) of 2013, this court unconditionally stayed the operation of the order dated 28 December, 2012 passed by the Union of India holding, prima facie, that such order suffers from jurisdictional error. Subsequently, by an order dated 9 April, 2014 passed in WP 10410 (W) of 2013, this court stayed the aforesaid demand raised by the Union of India on RCL.
(7) On 9 January, 2015 the Union of India issued a Notice Inviting Applications for auction of spectrum in 2100 MHz, 1800 MHz, 900 MHz and 800 MHz band. Clause 3.0 of the notice provided for liberalization of existing spectrum holding in 800 MHz band which did not stipulate payment of One Time Spectrum Charges as a pre-condition for liberalization. Between July and October, 2015, based on the conditions stipulated in the Notice Inviting Applications, RCL applied for liberalization of spectrum in various circles. (8) On 5 November, 2015 the Union of India issued the Guidelines for liberalization of administratively allotted spectrum in 800 MHz and 1800 MHz frequency bands. Clause 10 of the Guidelines provided that the payment of One Time Spectrum Charges by the telecom provider will continue to be governed by the orders dated 28 December, 2012 and 15 March, 2013 passed by the Union of India.
(9) The Union of India also issued letters on 5 November, 2015 for 'amendment of UAS license for liberalizing administratively allotted access spectrum'. By these letters Clause 42.10 was appended to the license agreement. Clause 42.10 provided that the administratively assigned access spectrum may be liberalized as per Guidelines issued by the Government from time to time. Administratively allotted spectrum in 800 and 1800 MHz bands refers to the spectrum allotted prior to auction of right to use spectrum in November, 2012. (10) By letters dated 9 November, 2015 and 18 December, 2015 RCL applied for liberalization of existing holding of administratively allotted spectrum in 800 MHz spectrum band in Andhra Pradesh and Rajasthan licensed service area.
(11) On 22 December, 2015 the Union of India issued a notice demanding payment of One Time Spectrum Charges as a pre-condition for liberalization at a rate which was higher than the earlier demand dated 28 March, 2013. RCL requested the Union of India to revise the rate and bring it in conformity with the 2012-13 rates. By a letter dated 5 January, 2016, the Union of India rejected such request of RCL.
(12) In the aforesaid factual background RCL filed WP No. 482 (W) of 2016 in this Court challenging the demand notice dated 22 December, 2015, the Guidelines of 2015 and the letter dated 5 January, 2016. The case of the petitioner/appellant:
(13) Appearing on behalf of the RCL, Mr. S.N. Mukherjee, Ld. Senior Advocate submitted that the Guidelines of 2015 are based on the order dated 28 December, 2012 and 15 March, 2013 issued by the Union of India, which had been unconditionally stayed by orders dated 14 February, 2013 and 9 April, 2013 respectively passed by this Court.
Accordingly, Clause 10 of the Guidelines of 2015, as it seeks to give effect to the said orders dated 28 December, 2012 and 15 March, 2013, is without authority as the same are contrary to the orders of this court. The said clause, in so far as it stipulates furnishing of bank guarantee to cover One Time Spectrum Charges in matters pending litigation, is also without authority as operation of the orders dated 28 December, 2012 and 15 March, 2013 had been stayed by this court. (14) Mr. Mukherjee then submitted that the said Guidelines of 2015 and the demands made consequent to the same are ultra vires Section 4 of the Telegraph Act, 1885. The said provision only applies at the time of grant of license and not at any subsequent point of time. (15) The third submission of Mr. Mukherjee was that the conditions prescribed in Clause 5.1 of the license agreement had not been fulfilled prior to seeking to introduce the amendments to the license agreement through clause 42.10 and 43.11, i.e. making the Guidelines of 2015 part of the license agreement.
(16) Ld. Sr. Counsel then submitted that One Time Spectrum Charges could not be demanded for spectrum which had already been allotted to RCL. Spectrum up to 5 MHz had been allotted to RCL in each of the twenty circles for which RCL had already paid an entry fee which has been recorded in the license agreement. Hence, RCL could not be charged again for spectrum being used by it which was above 2.5 MHz and up to 5 MHz as the same would amount to charging RCL twice for the same spectrum and would, therefore, be taxation without the authority of law and violative of Article 265 of the Constitution of India.
(17) It was also submitted on behalf of RCL that the Notice Inviting Applications which was the basis for opting for the liberalization of spectrum scheme, did not make any provision for payment of One Time Spectrum Charges.
(18) No hearing was given to RCL by the Union of India before seeking to amend the license agreement by introducing Clauses 42.10 and 43.11 and this amounted to complete violation of the principles of natural justice.
(19) It was finally submitted by Mr. Mukherjee that the impugned action on the part of the Union of India is arbitrary and discriminatory against RCL and falls foul of A. 14 of the Constitution of India. (20) Mr. Mukherjee referred to Section 14 of the TRAI Act and submitted that even if it be contended that the said Section provides for an alternative remedy this is a fit case where discretion of the court should be exercised in hearing the writ petition on merits as the grounds of challenge to the decisions of the respondents are on the issues of lack of jurisdiction, breach of natural justice, and ultra vires of statutory provisions. In this connection he relied on the following decisions:-
(i) Whirlpool Corporation-vs.-Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 paras 14, 15, 20 and 21.
(ii) Nivedita Sharma-vs.-Cellular Operators Association of India, (2011) 14 SCC 337 paras 15 and 16.
(iii) M/s. Baburam Prakash Chandra Maheshwari-vs.-Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, AIR 1969 SC 556 paras 3 and 4.
(iv) Unreported decision of Bombay High Court dated 24 February, 2014 as corrected on 6 March delivered in WP No. 2029 of 2013 (Idea Cellular Ltd.-vs.-Union of India).
Submissions made on behalf of the Union of India:-
(21) Appearing on behalf of the Union of India, Mr. Koushik Chanda, Ld. Addl. Solicitor General drew this court's attention to Clause 10 of the Guidelines issued on 5 November, 2015, which is reproduced hereinunder:-
"10. Payment of One Time Spectrum Charges (OTSC) by the TSPs will continue to be governed by this Ministry's order p- 11014/19/2008-pp (pt.1) dated 28th December, 2012 dated 15th March 2013. In case the spectrum gets liberalized, the OTSC will be charged up to the date for calculation of charges for liberalising the spectrum and the same has to be paid by the licensee. However, if such demand is pending due to judicial intervention barring any coercive action, a bank guarantee equal to this amount shall be submitted pending final outcome of judicial process."
(22) He then drew this Court's attention to RCL's letter dated 9 November, 2015 whereby RCL had applied for liberalization of spectrum for its different circles. In particular, Ld. ASG referred to paragraph 5 of the said letter which is reproduced hereunder:-
"5. We further wish to inform DOT that there is a stay by Kolkata High Court on the OTSC demand. Keeping in view the clause 10 of the Guidelines, we undertake to submit a Bank Guarantee equivalent to the OTSC amount for the period starting from 1st January 2013 up to the date for calculation of charges for liberalizing the spectrum."
(23) Ld. ASG submitted that in view of the RCL being ready, willing and prepared to comply with clause 10 of the Guidelines of 2015, demand note dated 22 December, 2015 was raised on RCL. However, RCL by its letter dated 29 December, 2015 disputed the amount and requested the Union of India to issue a revised demand note towards One Time Spectrum Charges for its different circles. In response, by its letter dated 5 January, 2016, the Union of India intimated RCL that the calculation of OTSC was based on the auction determined price of 2015 and requested RCL to take action as per the demand note issued on 22 December, 2015.
(24) Ld. ASG submitted that since RCL was aggregable to pay and/or secure the OTSC in principle, it is debarred from challenging the Guidelines of 2015, the demand notice dated 22 December, 2015 or the Letter dated 5 January, 2016.
(25) Ld. ASG then submitted that RCL has an alternative efficacious remedy in the form of approaching the TDSAT under Section 14 of the TRAI Act. Hence, the instant writ petition should not be entertained. In this connection he relied on the following decisions:-
(i) Union of India-vs.-Association of Unified Telecom Service Providers of India, (2011) 10 SCC 543 paras 36, 39, 47, 55, 59, 63 & 65.
(ii) Cellular Operators Association of India-vs.-Union of India, (2003) 3 SCC 186 para 11.
(iii) Union of India-vs.-Tata Teleservices (Maharashtra) Ltd., (2007) 7 SCC 517 paras 15 and 16.
(iv) Union of India-vs.-Major General Shri Kant Sharma, (2015) 6 SCC 773 para 36.
(26) The Ld. Addl. Solicitor General summed up his submission as follows:-
(a) The dispute in question relates to a demand made by the respondents. There has been no violation of the principle of natural justice in making the demand and the same does not suffer from any jurisdictional error.
(b) TDSAT having wide and extensive jurisdiction is competent to adjudicate the dispute in question.
(c) Ld. Single Judge rightly refused to exercise the plenary power conferred under Article 226 of the Constitution of India in view of the effective and efficacious alternative remedy available to RCL before the TDSAT.
(d) The judgment of the Ld. Single Judge warrants no interference and the appeal should be dismissed.
Finding of the Ld. Single Judge:-
(27) At paragraph 11 of the his judgment the Ld. Judge observed that whether or not the TDSAT would be empowered to receive a complaint from the petitioner concerning the disputes that have been canvassed in the writ petition and to adjudicate the same would have to be decided first and should it be held that the TDSAT has the jurisdiction to determine the disputes, it would not be necessary to look into the merits of the petitioner's claim.
(28) The Ld. Judge then referred to Section 14 of the TRAI Act which confers jurisdiction on the TDSAT, inter alia, to adjudicate any dispute between a licensor and a licensee. The Ld. Judge referred to the meaning of the word 'any' as given in Black's Law Dictionary as also as interpreted by the Hon'ble Supreme Court in the case of reported in AIR 2007 SC 788 (M/s. Associated Indem Mechanical (P) Ltd. v. State of West Bengal) and held that the word 'any' in the context it has been used in Clause (a) of Section 14 of the TRAI Act indicates that it has been used in a wide sense extending from one to all, admitting no exception.
(29) The Ld. Judge then referred to the decisions of the Hon'ble Supreme Court in the cases of Cellular Operators Association (supra) and Tata Teleservices (supra) and also the decision in the case of Association of Unified Telecom (supra) and came to a conclusion that Section 14 of the TRAI Act is not an alternative to the remedy available under Article 226 of the Constitution. It is the only remedy available to a licensee like RCL, should it perceive to have been subjected to a legal wrong by the licensor. Since the jurisdiction of the TDSAT is wide and expansive, all disputes emanating from the contract between the parties must be raised before the TDSAT at the first instance for its considered decision. TDSAT while hearing a dispute covered by Section 14(a)(i) of the TRAI Act does not exercise judicial review powers but is a fact finding body empowered to decide all questions arising before it pertaining to a dispute between a licensor and a licensee. Hence, RCL must pursue its remedy before the TDSAT. Accordingly, the Ld. Judge dismissed the writ petition with liberty to the petitioners to approach the TDSAT in accordance with law, if so advised. Our View:-
(30) We have considered the rival contentions of the parties and the impugned judgment and order. In our view, two issues arise for determination by this court; (1) whether Section 14 of the TRAI Act has ousted and/or barred the jurisdiction of this court under Article 226 of the Constitution to entertain a writ petition at the instance of an aggrieved party? (2) If the answer to the above question is in the negative, was it right on the part of the Ld. Judge to dismiss the writ petition and relegate the petitioner to TDSAT being the forum available under the TRAI Act?
Re Q.1:-
(31) Sections 14 and 15 of the TRAI Act provide as follows:-
"S.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 lincesee;
(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 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 Disputes 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 1855);
(b) hear and dispose of appeal against any direction, decision or order of the Authority under this Act.
S. 15. Civil Court not to have jurisdiction.- No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Appellate Tribunal is empowered by or 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." (32) The Ld. Addl. Solicitor General contended that RCL is a 'licensee' and the Union of India is a 'licensor' within the meaning of Clauses (e) and (ea) respectively of Section 2(1) of the TRAI Act and in terms of Section 14 of the TRAI Act, the TDSAT has been conferred power, inter alia, to adjudicate any dispute between a licensor and a licensee. It was his submission that Section 14 of the TRAI Act provides a forum for adjudication of the disputes between RCL and the Union of India and in view of existence of such an alternative efficacious remedy, the Ld. Judge rightly refused to entertain the writ petition and rightly relegated RCL to the TDSAT which is capable of determining such disputes. The Ld. Judge, however, went further and held that the remedy provided to an aggrieved licensee by Section 14 of the TRAI Act is not an alternative remedy but the only remedy available to the licensee. In other words, Section 14 of the TRAI Act operates to oust the jurisdiction of all other forum including that of the High Court under Article 226 of the Constitution of India. Whether such finding of the Ld. Judge is correct and sustainable in law is the first issue that falls for determination in this appeal.
(33) In the case of Whirlpool Corporation-vs.-Registrar of Trade Marks (supra), the Hon'ble Supreme Court observed that the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and is not limited by any other provision of the Constitution. Having regard to the facts of a case, the High Court has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its writ jurisdiction. But the alternative remedy has been consistently held not to operate as a bar where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. The Hon'ble Supreme Court referred to some of its earlier decisions in this regard and observed as follows:-
"20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under A. 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the 'Tribunal'."
(34) In the case of Nivedita Sharma-vs.-Cellular Operators Association of India (supra), the Hon'ble Apex Court reiterated its views as expressed in the Whirlpool Corporation's case. The Hon'ble Apex Court observed that so far as the jurisdiction of the High Court under A. 226 or for that matter, the jurisdiction of the Supreme Court under A. 32, is concerned, the provisions of a statute cannot bar or curtail these remedies. However, while exercising the power under A. 226 or under A. 32, the courts would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. (35) In the case of M/s. Baburam Prakash Chandra Maheshwari-vs.- Antarim Zila Parishad (supra) at paragraph 3 of the judgment the Hon'ble Supreme Court observed as follows:-
"3. It is a well-established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed v. The Municipal Board, Kairana, 1950 SCR 566=(AIR 1950 SC 163), "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs" and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self-imposed limitation, a rule of policy, and discretion rather than a rule of law and the court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. In The State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595, 605, S.R. Das, C.J., speaking for the Court, observed:
"In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Ed., Vol. II, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In the King v. Postmaster-
General Ex parte Carmichael [1928 (1) K.B. 291] a certiorari was issued although the aggrieved party had and alternative remedy by way of appeal. It has been held that the superior court will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction. The case of Rex v.
Wandsworth Justices Ex parte Read [1942 (1) K.B. 281] is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction." There are at least two well-recognised exceptions to .the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the High Court under Art. 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course.--(See the decisions of this Court in Carl Still G.m.b.H.v. The State Bihar, AIR 1961 SC 1615 and The Bengal Immunity Co. Ltd. v. The State Bihar, (1955) 2 SCR 603. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice (See 1958 SCR 595, 605=(AIR 1958 SC 86, 93))." (36) In the case of Idea Cellular Ltd.-vs.-Union of India (supra), the Bombay High Court in its judgment and order dated 24 February, 2014 as corrected on 6 March, 2014 in WP No. 2029 of 2013 rejected the preliminary objection of the respondents regarding the maintainability of the writ petition. The writ petition was filed challenging a charge which was levied on an existing license purportedly by exercising the power vested on the respondents under Section 4 of the Indian Telegraph Act, 1885. The respondents challenged the maintainability of the writ application in view of an alternative remedy being available under Section 14 of the TRAI Act. The Bombay High Court held that the disputes raised in the writ petition could not be adjudicated by the TDSAT since the same pertains to the powers which can be exercised by the respondents under Section 4 of the Indian Telegraph Act, 1885. The High Court noted the contention of the petitioner that as per Section 4 of the said Act or under the contract between the parties, the respondent could not impose such a charge in respect of the existing contract. Accordingly, the Bombay High Court admitted the writ petition for hearing on merits.
(37) In the case of Kartar Singh-vs.-State of Punjab reported in (1994) 3 SCC 569, a Constitution Bench of the Hon'ble Supreme Court observed that power given to High Court under A. 226 is an extraordinary power not only to correct manifest errors but also to exercise it for the sake of justice. Under the scheme of the Constitution a High Court is the highest court for the purposes of exercising civil, appellate, criminal or constitutional jurisdiction so far that State is concerned. The jurisdiction possessed by it before coming into force of the Constitution was preserved by A. 225 and by Arts. 226 and 227 and extraordinary jurisdiction was conferred on it to ensure that the subordinate authorities act not only in accordance with law but they also function within the framework of law. That jurisdiction of the High Court cannot be taken away by legislation.
The Supreme Court also observed that under A. 226 of the Constitution of India, the High Court has untrammelled powers and jurisdiction to issue any writ or order or direction to any person or authority within its territorial jurisdiction for enforcement of any of the fundamental rights or for any other purpose. The legislature has no power to divest the Court of the constituent power engrafted under A. 226.
(38) From the aforesaid decisions, the principle of law that clearly emerges is that the jurisdiction of the High Court under Article 226 of the Constitution of India cannot be curtailed or ousted by any statutory provision. An alternative remedy is not a bar to the maintainability of a writ petition. However, when an efficacious alternative remedy is available to an aggrieved party whether under a statute or at common law, the High Courts are normally reluctant to exercise their high prerogative writ jurisdiction. This is only a self-imposed restraint and does not in any way touch the jurisdiction of the High Court under Article 226.
(39) In view of the aforesaid, the finding of the Ld. Judge that the writ court has no jurisdiction to receive a complaint of the nature raised by the writ petitioner, cannot be sustained. The high prerogative writ jurisdiction of the High Courts under Article 226 of the Constitution of India cannot be taken away by legislation. Accordingly, we hold that Section 14 of the TRAI Act does not oust or bar the jurisdiction of this court under Article 226 of the Constitution of India and the finding of the Ld. Judge to the contrary is set aside. The Ld. Judge erred in holding that this court had no jurisdiction to entertain a writ petition filed by the appellant. The first question is answered accordingly.
Re: Q. 2:-
(40) We now come to the question as to whether or not it was right on the part of the Ld. Judge to dismiss the writ petition and relegate the petitioner to TDSAT.
(41) In the case of Union of India-vs.-Association of Unified Tele Service Providers of India (supra), the Hon'ble Apex Court held that the TDSAT has the power to adjudicate upon any dispute between a licensor and a licensee. However, the Tribunal has no jurisdiction to decide upon the validity of the terms and conditions incorporated in the license of a service provider, but it will have the jurisdiction to decide any dispute between the licensor and the licensee on the interpretation of the terms and conditions of the license. One such dispute can be that the computation of adjusted gross revenue made by the licensor and the demand raised on the basis of such computation is not in accordance with the license agreement. This dispute can be raised by the license after the license agreement has been entered into and the appropriate stage when the dispute can be raised is when a particular demand is raised on the licensee by the licensor. When such a dispute is raised against a particular demand, the Tribunal will have to go into the facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with the licence agreement and in particular the definition of adjusted gross revenue in the license agreement and can also interpret the terms and conditions of the licence agreement. (42) In the case of Cellular Operators Association of India-vs.-Union of India (supra), at paragraph 11 of the Judgment the Hon'ble Supreme Court observed that the Tribunal committed an error by holding that it exercises supervisory jurisdiction. The jurisdiction of the Tribunal under Section 14 of the TRAI Act cannot be held to be a supervisory jurisdiction, in view of the language of the statute as well as the fact that it is the only forum for redressing the grievance of an aggrieved party inasmuch as the appellate jurisdiction to the Supreme Court is only on a substantial question of law and the jurisdiction of a civil court for filing a suit is also ousted.
(43) In the case of Union of India-vs.-Tata Teleservices (Maharashtra) Ltd. (supra), at paragraphs 15, 16 and 17 of the judgment the Hon'ble Supreme Court observed as follows:-
"15. 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 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 parties concerned, which would involve significant technical aspects, are to be determined by a specialised 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 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. The constitution of TDSAT itself indicates that it is chaired by a sitting or a retired Judge of the Supreme Court or sitting or a retired Chief Justice of the High Court, one of the highest judicial officers in the hierarchy and the members thereof have to be of the cadre of Secretaries to the Government, obviously well experienced in administration and administrative matters.
16. The Act is seen to be a self-contained code intended to deal with all disputes arising out of telecommunication services provided in this country in the light of the National Telecom Policy, 1994. This is emphasised by the Objects and Reasons also.
17. Normally, when a specialised Tribunal is constituted for dealing with disputes coming under it of a particular nature taking in serious technical aspects, the attempt must be to construe the jurisdiction conferred on it in a manner as not to frustrate the object sought to be achieved by the Act. In this context, the ousting of the jurisdiction of the civil court contained in Section 15 and Section 27 of the Act has also to be kept in mind. The subject to be dealt with under the Act has considerable technical overtones which normally a civil court, at least as of now, is ill equipped to handle and this aspect cannot be ignored while defining the jurisdiction of TDSAT."
(44) In the case of Union of India-vs.-Major General Shri Kant Sharma (supra), at paragraphs 36 to 41 of the judgment the Hon'ble Apex Court held as follows:-
"36. The aforesaid decisions rendered by this Court can be summarised as follows:
(i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India. (Refer: L. Chandra Kumar and S. N. Mukherjee.)
(ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of this Acts and would exercise their jurisdiction consistent with the provisions of the Act. (Refer: Mafatlal Industries Ltd.)
(iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma.)
(iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer:
Nivedita Sharma.)
37. Article 141 of the Constitution of India reads as follows:
'141. Law declared by Supreme Court to be binding on all courts.-The law declared by the Supreme Court shall be binding on all courts within the territory of India.'
38. In Southern Electricity Supply Co. of Orissa Ltd. this court observed that it should be for the specialized Tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case.
39. In Chhabil Dass Agarwal this court held that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
40. In Cicily Kallarackal this Court issued a direction of caution that if will not be a proper exercise of the jurisdiction by the High Court to entertain a writ petition against such orders against which statutory appeal lies before this Court.
41. In view of Article 141 the law as laid down by this Court, as referred to above, is binding on all courts of India including the High Courts."
(45) In the case of State of Kerala-vs.-MK Jose, (2015) 9 SCC 433, the Hon'ble Supreme Court observed that writ petition under A. 226 is not the proper proceeding for adjudication of contractual disputes. When an alternative and equally efficacious remedy is open to the litigant he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. However, the existence of an alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under A. 226. In a petition under A. 226, the High court has jurisdiction to try issues both fact and law. Exercise of the jurisdiction is discretionary and the discretion must be exercised on sound judicial principles. The power to issue prerogative writs under A. 226 is plenary in nature and is not limited by any other provisions of the Constitution. The High Court has imposed upon itself certain restriction in the exercise this power. This plenary right of the High Court to issue a prerogative writ will not normally be exercised by the court to the exclusion of other available remedies unless the impugned action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of A. 14 or for other valid and legitimate reason for which the Court thinks it necessary to exercise the said jurisdiction.
(46) It is thus clear that existence of an alternative remedy, even if the same is an equally efficacious remedy does not in any manner curtail or abrogate the High Court's power under A. 226. It is also equally clear that the High Court will not ordinarily exercise such extraordinary and plenary power if an equally efficacious alternative remedy is available to the aggrieved party whether under a statute or under common law. It has been observed by the Apex Court in the case of Kartar Singh (supra) that though the High Courts have very wide powers under A. 226, the very vastness of the powers imposes on them the responsibility to use them with circumspection and in accordance with the judicial consideration and well-established principles.
(47) Normally, when an efficacious alternative remedy is available, the Writ Court would require the aggrieved party to explore that avenue and exhaust that remedy. Even in cases where the action or order impugned is without jurisdiction or there has been a breach of principles of natural justice, although the High Court may be justified in interfering in the exercise of its writ jurisdiction, yet, it would not necessarily do so in all cases. The High Court will have to consider the facts and circumstance of each case before it decides that its interference is warranted in the exercise of the high prerogative writ jurisdiction. It is not possible nor desirable to lay down any strait jacket formula regarding the circumstances in which the jurisdiction under A. 226 should be exercised.
(48) In the present case, Section 14 of the TRAI Act provides the licensor or the licensee with an alternative statutory remedy. The TDSAT has been constituted by the Central Government under Section 14 of the said Act for adjudication of 'any' disputes between a licensor and a licensee, between two or more service providers or between a service provider and a group of consumers. The Ld. Judge has held that the word 'any' is of the widest amplitude and admits no exception. In other words, in the context of the statute, the word any is synonymous with the word 'every' so long as there exists a licence agreement. Section 2(1)(e) of the TRAI Act defines 'licensee' as meaning any person licensed under Section 4(1) of the Indian Telegraph Act, 1885 for providing specified public telecommunication services. Section 2(1)(ea) of the Act defines 'licensor' as meaning the Central Government or the Telegraph Authority who grants a licence under Section 4 of the Indian Telegraph Act, 1885. (49) There can be no scope for dispute that the writ petitioner is a licensee and the Union of India is a licensor within the meaning of TRAI Act and there is a subsisting license agreement between them. The question then is, whether or not the TDSAT has jurisdiction to adjudicate upon the disputes between the writ petitioner and the Union of India which formed the subject matter of the writ petition. We must remember that the Supreme Court in the case of Association of Unified Tele Services Providers of India (supra) has held that the Tribunal has no jurisdiction to decide upon the validity of the terms and conditions incorporated in the licence of a service provider. However, interpretation of the terms and conditions of the licence is within the power and jurisdiction of the Tribunal. In the instant case, the appellant has challenged the Guidelines of 2015 and the demand notice dated 22 December, 2015 based on the said Guidelines. The grievance of the appellant is that on the basis of the said Guidelines the licensee/Union of India has sought to unilaterally modify the licence agreement by appending clause 42.10 thereto and by incorporating clause 43.11. This, according to the appellant, is impermissible for a plethora of reasons which have been indicated hereinabove. Thus, the moot question is whether or not the licensor/Union of India could legitimately introduce the Guidelines of 2015 thereby modifying the licence agreement and raise a demand on the licensee on the basis of such Guidelines or modify the licence agreement.
(50) We see no reason why the TDSAT cannot consider and decide this issue. Resolution of the dispute between the parties does not require adjudication of validity or otherwise of any term of the licence agreement. In our view, the Tribunal would be fully competent to decide whether or not the licensor could seek to modify the licence agreement on the basis of the Guidelines of 2015 introduced by it and sustain a monetary demand on the basis thereof. In the case of Association of Unified Tele Service Providers of India (supra), the Hon'ble Apex Court observed that it is within the jurisdiction of the Tribunal to decide a dispute regarding a demand raised on the basis of computation of adjusted gross revenue made by the licensor if the licensee contends that the same is not in accordance with the licence agreement.
(51) The object of the legislature in providing for constitution of a Tribunal under Section 14 of the TRAI Act is obviously to encourage resolution of disputes between a licensor and a licensee through adjudication before the Tribunal. The Tribunal is a specialised body and the members thereof have administrative expertise and experience in the field of telecommunication. The Tribunal is presided over by a sitting or retired Judge of the Supreme Court or a sitting or retired Judge of a High Court, one of the highest judicial officers of the country. In consonance with the object of the TRAI Act, in our view, the jurisdiction of the TDSAT should be construed in an expansive rather than in a restricted way.
(52) With respect, we are unable to agree with the decision of the Bombay High Court in the case of Idea Cellular Limited (supra). We are of the firm opinion that the TDSAT has jurisdiction to decide the disputes between the parties which formed the subject matter of the writ petition.
(53) Since, according to us, the Tribunal is fully competent to entertain and decide the disputes between the parties, we are of the view that the writ court should not exercise its high prerogative writ jurisdiction in the matter. The TRAI Act is a self-contained code intended to deal with all disputes arising out of telecommunication services. The disputes to be dealt with under the TRAI Act are highly technical in nature which a writ court is not well-equipped to handle and this aspect cannot be ignored while defining the jurisdiction of the TDSAT. The TRAI Act itself contains a mechanism for redressal of an aggrieved licensee and the High Court should not entertain a petition under A. 226 of the Constitution. The Supreme Court has repeatedly observed that it should be for the specialized Tribunal or the Appellate Authorities to examine the merits of a dispute which fall within their jurisdiction and when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory remedy.
(54) In conclusion, we agree with the decision of the Ld. Judge to relegate the writ petitioner to the TDSAT albeit for a slightly different reason. We disagree with the Ld. Judge's finding that the TDSAT is the only forum available to an aggrieved licensee for redressal of his grievance and the jurisdiction of the Writ Court is ousted by Sections 14 and 15 of the TRAI Act and such finding is set aside. However, we uphold the final decision of the Ld. Judge in referring the writ petitioner/appellant to the TDSAT in view of the availability of an equally efficacious alternative remedy under Section 14 of the TRAI Act.
(55) In the result, this appeal fails and is dismissed, however, without any order as to costs.
(56) Urgent certified photocopy of this judgment, if applied for, be given to the parties upon compliance with necessary formalities. I agree.
(Manjula Chellur, CJ.) (Arijit Banerjee, J.)