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2. Opening his argument on behalf of Star India (P) Limited [Petition No. 39(C) of 2004] Mr. Anil Divan, learned senior counsel, submitted that arbitration is not permissible in respect of disputes which are subject matter of the jurisdiction of TDSAT. He stated that TDSAT has exclusive jurisdiction to decide any dispute between (i) a licensor and a licensee; (ii) two or more service providers; and (iii) a service provider and a group of consumers and to hear and decide appeal against the order of the Authority (TRAI-Telecom Regulatory Authority of India, constituted under the Act). He stressed the word 'any' in 'adjudicating any dispute' as appearing in Section 14 of the Act. He said exclusion of jurisdiction for TDSAT will only be what the proviso to Clause (a) of Section 14 of the Ad provides and these exceptions are--(1) certain matters under the exclusive jurisdiction of the Monopolies and Restrictive Trade Practices Commission (MRTPC); (2) an individual consumer complaint before the authority established under Consumer Protection Act, 1996; and (3) dispute between Telecom Authority and any other person referred to in Sub-section (1) of Section 7B of the Indian Telegraph Act, 1885. Mr. Divan referred to the long title (Preamble) of the Act and said that as the long title would show, TDSAT was constituted to adjudicate disputes, dispose of appeals and to protect the interests of the service providers and consumers of telecom sector. He said that interest of consumers is paramount under the Act as these are the ultimate beneficiaries of telecom services. Reference was then made to Section 15 of the Act which bars the jurisdiction of the Civil Courts in respect of any matter which Appellate Tribunal is empowered by or under the Act to determine. He then referred to Section 18 of the Act which provides for appeal to the Supreme Court against any order, not being an interlocutory order of the TDSAT on one or more of the grounds specified under Section 100 of the Code of Civil Procedure, 1908. Mr. Divan said that in any dispute between stakeholders, it is the interest of the consumers which has to be kept in view and that arbitrator will not be able to do that as he would be only concerned about the terms of contract between the stake-holders. He said the Act is not only for regulating the telecom services, but also for the protection of large body of consumers. He said, if in a dispute between the broad-caster and MSO (Multi Service Operator), or between service providers in telecom service there is disconnection of the service, it is the consumer who ultimately suffers when as a matter of fact it is he who provides the finances for all these services. Viewer is the key in the whole set-up and yet he cannot participate in the arbitration proceedings being outside the terms of the arbitration agreement. Telecom services which include broadcasting and cable TV services have become part of daily lives of individuals all over the country. Mr. Divan stated that it is because of huge amount of investment in the telecom sector and because of significant public interest involved that exclusive jurisdiction has been conferred on TDSAT. It is necessary also for orderly growth of telecom services that disputes are handled by one expert body. Particularly when an arbitrator is only bound by the terms of the contract, he emphasised, group of consumers cannot come to arbitrator in the course of arbitration proceedings if there is disconnection of services and dispute is pending before the arbitrator. Under the Arbitration Act 1996, it is only the party to the arbitration agreement which can move the court for appointment of arbitrator and even for seeking interim relief. Mr. Divan queried as to what will happen in a case where in an agreement between the stakeholders there is no arbitration clause. In that situation he said, aggrieved party cannot go to a Civil Court as Section 15 of the Act bars the jurisdiction of Civil Court. Even after award is given for its execution or challenge, a party has to go to civil court and again that would not be possible in view of Section 15 of the Act. Mr. Divan said situation cannot be different for settlement of disputes when there is an arbitration clause and when there is none. Further if it is held that arbitration is permissible under the Act that would amount to depriving a party of his statutory right of filing appeal to the Supreme Court under Section 18 of the Act. Group of consumers which are aggrieved by disconnection of services in disputes between the stakeholders cannot go to arbitration as they are not party to arbitration agreements. They cannot be sidelined as dominant interest of public is involved which the arbitrator is incapable of handling. In a dispute between stakeholders arbitrator will not be able to give public notice or notice to the consumers of services. Mr. Divan concluded his arguments by saying that statutory jurisdiction conferred on TDSAT cannot be taken away by an arbitrator. In support of his argument, he relied upon a few decisions of the Supreme Court, which we will refer to hereinafter.

3. Mr. C.S. Vaidyanathan, learned senior counsel appearing for the petitioner in Petition No. 6 of 2003 (Aircel Digilink India Ltd.) referred to the provisions of Section 14 of the Act prior to its amendment and stated that now the law is different and exclusive jurisdiction has been conferred on the TDSAT to the exclusion of any court or authority. Mr. Vaidyanathan pointed out that in the licences issued prior to the amendment of the Act in 2000, there was arbitration clause and now in the licences issued after the amendment, the arbitration clause has been omitted. He stated that under Section 14 of the Act the only dispute which can go to an arbitrator is the one under Section 7B of the Indian Telegraph Act 1885 as provided in proviso (C) of Clause (a) thereunder. Mr. Vaidyanathan also pointed out that Section 38 of the Act provides that provision of the Act shall be in addition only to the provisions of the Indian Telegraph Act 1885, and Indian Wireless Telegraphy Act, 1933 and thus, in addition to no other law. He then said that under Section 14M of the Act, all petitions pending before TRAI before the establishment of the TDSAT shall stand transferred to TDSAT. Section 14N provides that all appeals pending before the High Court shall also similarly stand transferred to the TDSAT. Mr. Vaidyanathan pointed out that though there is no provision for transfer of pending proceedings before a civil court to TDSAT but that he said was not necessary as on the establishment of TDSAT, jurisdiction of civil courts stood barred. He queried, however, would TDSAT have jurisdiction if there is a dispute between two service providers regarding the lease of premises. He said the word 'any dispute' would necessarily have to be a dispute under the Act. Mr. Vaidyanathan also referred to Section 894 of the Code of Civil Procedure, which has been introduced by the Amending Act of 1999 (with effect from 1.7.2002). Mr. Vaidyanathan also submitted that the Act being a special law will prevail over the general law which is the Arbitration Act 1996. He also slated that later law prevails over the earlier one. He submitted that the Act incorporates principles of public policy and it overrides the provisions of general law. He submitted that the TDSAT has been established specifically for adjudicating upon disputes in telecom sector and its adjudicatory powers have been well-defined and specifically mentioned in the Act. He stated that the jurisdiction of TDSAT in matters referred to in Section 14 is exclusive and no other Forum/ Authority has jurisdiction over these matters. In support of his submissions he also referred to certain decisions of the Supreme Court.

19. The Act is a complete code. TDSAT has exclusive jurisdiction to adjudicate any dispute between the parties and also exercises exclusive appellate jurisdiction against any direction, decision or order of the TRAI. Sections 14 to 20 in Chapter IV of the Act deal with the jurisdiction and procedure of the TDSAT. Section 14M and 14N provides for transfer of pending cases before TRAI and appeals in the High Court to TDSAT after its constitution by the amending Act 2 of 2000 which carne into force on 21.2.2002. Jurisdiction of civil courts is barred in respect of any matter which TDSAT is empowered by or under the Act to determine and no injunction shall be granted by any court or any authority which includes arbitrator in respect of any action taken or to be taken in pursuance of the powers conferred by this Act on TDSAT. Orders passed by the TDSAT are executable as a decree and provision also exists for imposition of penalty for wilful failure to comply with the orders of the TDSAT. Under Section 18 of the Act, appeal lies to the Supreme Court against any order not being an interlocutory order of TDSAT on one or more of the grounds specified in the Section 100 of the Civil Procedure Code. The Supreme Court in the case of Cellular Operators Association of India v. Union of India (2003) 1 Comp LJ 1 (SC): (2003) 3 SCC 186 has observed that appeal lies to the Supreme Court against the order of TDSAT only on the substantial question of law. The Preamble of the Act discloses as well the intent and object of the Legislature to confer exclusive jurisdiction to TDSAT to the exclusion of any court or authority.

20. The Arbitration Act, 1996, is a general Act and it will apply to all the arbitration agreements but the Act, i.e., TRAI Act is Special Act and applies to telecom sector and by notification issued on 9 January, 2004, also applies to broadcasting and cable services. The intention of the Legislature in ousting the jurisdiction of all other courts and all other authorities is quite apparent and it is to ensure and enable one single authority, i.e., TDSAT, to uniformly regulate this vital telecom sector which includes broadcasting and cable TV sector. Proper functioning of various stakeholders in this telecom sector is vital to the development and to safeguard interest of the consumers at large who are the beneficiaries of these services. It may also be noticed that telecom sector is subject to various regulations issued by TRAI which even monitors the interconnection between various service providers. In the Cellular Operators Association of India v. Union of India (2003) 1 Comp LJ 1 (SC): (2003) 3 SCC 186, the Supreme Court has held that jurisdiction of TDSAT under Section 14 cannot be held merely to be supervisory jurisdiction and that it is the only forum for addressing the grievances of aggrieved party inasmuch as the appellate jurisdiction to the Supreme Court is only on the substantial question of law and jurisdiction of Civil Courts for filing a suit is ousted. TDSAT has power to adjudicate any dispute. The Supreme Court in the case of West Bengal [Telecom] Regulatory Commission v. CESE Ltd. (2002) 8 SCC 715 has even recommended the establishment of a similar expert Tribunal like TDSAT in telecom sector in other similar regulatory bodies. The question of exclusive jurisdiction of an expert body like TDSAT has recently been discussed in a decision of Supreme Court in the case of Clariant International Ltd. and Anr. v. Securities and Exchange Board of India (2004) 4 Comp LJ 52 (SC): (2004) 8 SCC 524 (paras 64 to 82).