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It has been stated by the appellants that the aforesaid time limit of 90 days would not be applicable in a case where TRAI chooses to make modifications/changes in the proposed RIO, otherwise it would ignore the period of 30 days available for the statutory remedy of appeal provided under section 14(A) of the Act to the aggrieved parties

11. Section 14 (A) of the Act is reproduced as under:

"14A. Application for settlement of disputes and appeals to Appellate Tribunal.
(1) The Central Government or a State Government or a local authority or any person may make an application to the Appellate Tribunal for adjudication of any dispute referred to in clause (a) of Section 14.
"The other question that arises is even if the Regulations are valid piece of subordinate legislation, how can jurisdiction of TDSAT be barred if any dispute arises under the Regulation. For example, in the present case it is the contention of MTNL that its entitlement to ADC has been wrongly reduced by TRAI on various non-existent grounds. Who is going to consider that, if not the TDSAT an expert body? Jurisdiction which the High Court exercises under Article 226 and 227 of the Constitution is not the same as is exercised by an expert appellate body in appeal. As Supreme Court itself has said in West Bengal Electricity Regulatory Commission case (supra) that neither the High Court nor the Supreme Court would in reality be appropriate appellate forums in dealing with "this type of factual and technical matters". Supreme Court also said that "it would be more appropriate and effective if statutory appeal is provided to a similar expert body, so that various questions which are factual and technical that arise in such an appeal get appropriate considerations in the first appellate stage also. These observations made by the highest judicial authority i.e. Supreme Court fully apply to the present case before us which involves consideration of access deficit charge (ADC) a matter of highly complicated and technical nature. Arguments of TRAI is in complete variance with these observations of the Supreme Court. Moreover, Supreme Court has also held that at least one right of appeal be given to the aggrieved party. Arguments advanced by TRAI would deprive the aggrieved party the MTNL of the right to appeal. In the case of the West Bengal Electricity Regulatory Commission we find that Supreme Court has found subordinate legislation to be valid. That is not so in the present case before us as we are also of the view that TRAI cannot frame Regulation under those sub-clauses which do not provide for framing of Regulations. It has certainly power to issue directions.

It is settled law that the same authority/body cannot have legislative as well as adjudicatory functions. Delhi High Court in the aforesaid judgment observed that if the arguments on behalf of the TRAI were to be accepted then it would amount to saying that TRAI would adjudicate upon dispute arising from or as a result of its own regulations/directions which could never have been the intention of the legislature. The High Court held this view prior to the amendment of the Act and now the adjudicatory functions have been conferred upon the TDSAT. We were dismayed with the argument on behalf of the TRAI in the case of MTNL v. TRAI (Appeal No. 3/2005) when we wanted to know that if any dispute arises under the Regulations framed by TRAI, could it be that it would be adjudicated by TRAI and jurisdiction of TDSAT to determine that dispute would be barred. His answer was in the affirmative. That would mean that Regulations which are in the nature of subordinate legislation overtake the provisions of the principal Act. Regulations even if they are a valid piece of subordinate legislation cannot provide that if any dispute arises with regard to interpretation of any of the provisions of the Regulations, the decision of the TRAI shall be final and binding. Such submissions on behalf of TRAI have to be outrightly rejected. Again in the face of the principle enunciated by the Delhi High Court that the same authority/body cannot have both legislative as well as adjudicatory functions and that the Act itself had to be amended establishing TDSAT to hear and dispose of appeal against any direction, decision or order of the TRAI under the Act, for TRAI to say that it has still the power to adjudicate upon a dispute has no meaning. In this context observation of the Delhi High Court that "further, sub-clauses (l), (m), and (p) specifically provide for framing of regulations whilst other do not" becomes relevant. The Court was considering non-recommendatory functions of TRAI as given in Section 11 (1) (c), (d), (e), (g), (h), (i), (j), (m), (n), (p) and (q). The Court said:

(4) Caller Line Identification (Reference - clauses 2.3, 4.2.4 of draft RIO): BSNL and TRAI have agreed to the wording "the Calling Line Identification without being tampered shall be mandatorily provided by the Interconnection seeker at the POI". However, BSNL wants that in case CLI is found to be tampered with or missing, it would reserve the right to reject such calls or charge them at the highest applicable rates for carriage and termination of international calls at the originating/terminating POI as the case may be. TRAI has stipulated the following words in this regard "cases where CLI is found to be tampered with or missing shall be dealt with by BSNL in accordance with the instructions issued by the Licensor or TRAI from time to time".