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31. Referring to Sanjeev Coke Manufacturing Company's case (cited supra), it is the contention of the learned Senior Counsel for the petitioners that the above judgment would not lend any support to the case of TRAI and their Explanatory Memorandum to the impugned Regulation, dated 07.06.2007, would reflect that it is only by virtue of amendment to the License Agreement, TRAI seeks to acquire jurisdiction to frame the impugned Regulation.

32. On the contention that TRAI has got jurisdiction to frame the impugned regulation, in accordance with Section 36(1), read with Section 11(1)(b)(i) of the TRAI Act, attention of this Court was also invited by the petitioners to Section 11(1)(b)(i), which reads that, ensure compliance of terms and conditions of license;" and contended that the above provision is the basis for the impugned Regulations, as reflected in the recommendations, dated 16.12.2005, Consultation Paper, dated 13.04.2007 and Impugned Regulation, dated 07.06.2007, on the fallacious premise that amendment of licence will empower it to frame Regulations.

45. On the Telecommunication Interconnection (Reference Interconnect Offer) Regulation, 2002, the petitioners have submitted that this Regulation required publishing of Reference Interconnect Offer (RIO) by service providers holding significant market power and such RIO has to stipulate service providers the terms and conditions on which it will agree to interconnect its network with the network of any other service provider seeking interconnection. Had access to CLS been the case of interconnection, the Respondent TRAI would have in such a case imposed the obligation of issuing the RIO upon the Petitioners as in the year 2002 when the RIO Regulation was issued by Respondent TRAI, the Petitioners was the only owner of the CLSs in the country. Absence of such a prescription or imposition by the Respondent TRAI on the Petitioners clearly establishes the fact that the access to CLS was never construed to be covered under the term interconnection.

52. It is the case of the petitioners that there are no two networks between whom the connectivity is provided as already set out in the Block Diagram above and which has not been controverted by the Respondent TRAI. The respondent never construed access to essential facilities at cable landing system as a case of interconnection. Respondent TRAI never construed access to Cable Landing Station as Interconnection, had it been the case it would have included access to Cable Landing Station by amendment to the above said Regulations as detailed above. The Petitioners have already dealt with hereinabove under the heading "Jurisdiction, Power and Authority to frame the Impugned Regulations", the manner in which Respondent TRAI has derived his power to frame the impugned Regulations, namely by first seeking an amendment to the ILD license Agreement, and then framing the impugned Regulations. Even in the Consultation Papers, leading to the recommendation of 16 December 2005 and the Consultation Paper leading to the first impugned Regulation of 07 June 2007the Respondent has consistently construed access to Cable Landing Station as not being interconnection at all places and at all times the reference has been to "access" with no reference to "Interconnection" and which is the correct position. The relevant paragraphs and their extracts in this regard, are as follows:

84. The petitioners have further submitted that the primary reasons articulated by TRAI for specifying the charges payable by a person seeking access to a cable landing station or for regulating such charges is that there is abuse of dominant position by the owners of cable landing station in India and that they are in the nature of a monopoly and they indulged in practices which deny access to cable landing station on fair and non discriminatory terms. If this is the justification for the impugned regulation then the same is beyond the powers of TRAI in terms of discharging its functions under Chapter III of the TRAI Act relating to Section 11,12 & 13 of the said Act. The Parliament has enacted the Competition Act, 2002 (Act 12 of 2003) with the express object of establishing a commission to prevent practices having adverse effect on competition, to promote and sustain competition in market, to protect the interest of consumers and to ensure freedom of trade carried out by other participants in the markets. Section 3 deals with prohibition of anti-competitive agreement and section 4 deals with prohibition of abuse of dominant position. Section 18 mandates the commission to eliminate such practices and Section 19 to 26 sets out an elaborate procedure for inquiry into such abuse of dominant positions by an enterprise and section 27 empowers the commission to pass orders to restrain such abuse of dominant position, remedy the same, impose penalty, award compensation and direct that agreement shall stand modified as specified in the order of the Commission. The Competition Act has been given an overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force by virtue of Section 60 of that Act. It is therefore apparent that the parliamentary intent is to vest the exclusive power of prohibition of abuse of dominant position in the Competition Commission of India, which necessarily has amongst others a Member with expertise in law. In fact, a retired judge of this Court is a member of the Competition Commission, the procedure prescribed is adjudicatory and quasi judicial, any allegation or complaint of abuse of dominant position will have to be inquired into and investigated by the Director General of the Competition Commission, where after opportunities given to the complainant as well as to the person accused of abusing dominant position. There are valuable safeguards contained in the Competition Act before any such conclusion is arrived at whether any Enterprise is abusing its dominant position. In the present case the TRAI without holding any such inquiry and without discussing the relevant facts and submissions of the petitioners to substantiate that there is no such abuse of dominant position has arrived at conclusion and chosen to exercise the power to make regulation. In fact, Section 21 of the Competition Act obligates the TRAI if they were of the view that the owners of cable landing station were abusing the dominant position to make a reference to Competition Commission. Section 21 is set out herein below: