Telecom Disputes Settlement and Appellate Tribunal

Khushboo Asrani

Telecom Disputes Settlement and Appellate Tribunal is also known as TDSAT in short form. TDSAT is established under Telecom Regulatory Authority of India Act, 1997.

This Act established a Telecom Regulatory Authority of India (TRAI), whose Chairperson was to be a sitting or retired Judge of the Supreme Court or a Chief Justice of a High Court and the Members were to be persons having special knowledge of, and personal experience in, telecommunication, industry, finance, accountancy, law, management and consumer affairs.

Apart from regulatory functions, TRAI was also empowered to adjudicate upon disputes among Service Providers or between the Service Providers and a group of Consumers on matters relating to technical compatibility and interconnection between the Service Providers, revenue sharing arrangement between Service Providers and quality of telecommunication services and interests of consumers.

After 1991, the accelerated growth of telecommunications led to many changes in market structure in the sector and saw diverse categories of players enter the market. As discussed previously, these market changes led to the need, and subsequent creation of, a regulatory authority, i.e., the TRAI.

The TRAI was vested with broad and varied powers, including but not limited to regulation. Crucially, besides being a regulatory body, TRAI was also entrusted with the responsibility of adjudicating disputes in the telecom sector (except for certain categories of disputes which were explicitly excluded by the Act), as well as (originally) to arbitrate these disputes.

The TDSAT is a unique institution, specific to the telecom sector for providing settlement of disputes between licensor and licensee, between two or more service providers and a service provider and a group of consumers.

The existence of such an institution not only affords an opportunity to service providers to seek a final settlement of issues involved, but also sanctifies various decisions taken by the regulator which sets the pace and tone for corporate governance and contributes to stability in the market.

Mandate of TDSAT:

The object of setting up the TDSAT was to adjudicate ―any dispute between a,

Licensor and licensee,

Two or more service providers,

Between a service provider and a group of consumers.

Formation:

In order to strengthen the regulatory framework & the disputes settlement mechanism in the telecommunication sector and to bring in functional clarity the TRAI Act of 1997 was amended in the year 2000 and TDSAT was set up to adjudicate disputes and dispose of appeals with a view to protect the interests of consumers and service providers of the telecom sector and to promote and ensure orderly growth of the telecom sector.

The Government included broadcasting and cable services also within the purview of TRAI Act in January 2004. After coming into force of the relevant provisions of the Finance Act 2017, the jurisdiction of TDSAT also stands extended to matters that laid down before the Cyber Appellate Tribunal and the Airport Economic Regulatory Authority Appellate Tribunal.

Composition:

The Tribunal consists of a Chairperson and two Members appointed by the Central Government. The Chairperson should be or should have been a Judge of the Supreme Court or the Chief Justice of a High Court.

A Member should have held the post of Secretary to the Government of India or any equivalent post in the Central Government or the State Government for a period of not less than two years or a person who is well versed in the field of technology, telecommunication, industry, commerce or administration.

Powers and Jurisdiction:

The Tribunal exercises jurisdiction over Telecom, Broadcasting, IT and Airport tariff matters under the TRAI Act, 1997 (as amended), the Information Technology Act, 2008 and the Airport Economic Regulatory Authority of India Act, 2008.

The Tribunal exercises original as well as appellate jurisdiction with respect to Telecom, Broadcasting and Airport tariff matters. With respect to Cyber matters the Tribunal exercises only the appellate jurisdiction.

Procedure:

1. The Tribunal is not bound by the procedure laid down by the Code of Civil Procedure, 1908;
2. It has the power to regulate its own procedure;
3. It is to be guided by the principles of natural justice;

Tribunal has the same powers as are vested in a civil court under the CPC in respect of:

1. summoning and enforcing the attendance of any person and examining him on oath;
2. requiring the discovery and production of documents;
3. receiving evidence on affidavits;
4. subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or a copy of such record or document, from any office;
5. issuing commissions for the examination of witnesses or documents;
6. reviewing its decisions;
7. dismissing an application for default or deciding it ex parte;
8. setting aside any order of dismissal or any application for default or any order passed by it ex parte; and
9. any other matter which may be prescribed.

In addition, the Tribunal can call for the records relevant to disposing of a Petition or appeal, for the purpose of examining the legality or propriety or correctness of any decision or of any order etc of TRAI.

Nature of proceedings:

1. The Tribunal is the Court of first instance except cyber matters.
2. Every proceeding before the Tribunal is deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code (45 of 1860);
3. The Tribunal is deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) Tribunal’s Orders are executable as a decree of civil court.

Appeals:

In respect of Telecom, Broadcasting and Airport tariff matters, the Tribunal’s orders can be appealed to the Supreme Court but only on substantial questions of law.

However, no appeal lies against an interlocutory order or against any decision or order made by the Tribunal with the consent of the parties. In respect to Cyber matters, the Tribunal’s order can be appealed before the High Court.

Case-Based Interpretation:

The Supreme Court has, in various judgments, examined and ruled on the jurisdiction of the TDSAT. As will be seen from the discussion below, the Supreme Court has, over time to time basis, gradually curtailed the jurisdiction of the TDSAT by placing restrictions on its functioning.

In Cellular Operators Assn. of India v. Union of India

In this judgment, the Supreme Court held that the jurisdiction of the TDSAT was wider than that of the Supreme Court, and observed:

“As has been stated earlier, the jurisdiction of the Tribunal under Section 14 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 this Court is only on a substantial question of law and the jurisdiction of a civil court for filing a suit is also ousted.”

In 2011, the Supreme Court, in the judgment of UOI vs. Association of Unified Telecom Service Providers of India, imposed a limitation on the jurisdiction of the TDSAT in holding that the TDSAT did not have the jurisdiction to decide on the validity of the definition of “adjusted gross revenue” in the terms provided for in the license agreement between the parties. The Supreme Court, in doing so, also reiterated its consistent view that once a licensee has accepted the terms and conditions of a license, he cannot question the validity of the terms and conditions of the license before the Court.

In BSNL v. Telecom Regulatory Authority of, The Supreme Court limited the jurisdiction of the TDSAT, holding that it had no authority to rule on the validity of the regulations made by the TRAI.

Acts Covered:

1. TDSAT PROCEDURE, 2005
2. TRAI ACT, 1997
3. RIGHT TO INFORMATION ACT (INDIA)
4. INFORMATION TECHNOLOGY ACT
5. AERA ACT

CURRENT CHAIRPERSON: Hon’ble Mr. Justice Shiva Kirti Singh (From: 21-04-2017)

List of Former Members:

1. Mr. A K Bhargava (From: 19-10-2016 To : 18-10-2019)
2. Mr. Bipin Bihari Srivastava (From: 12-05-2015 To : 11-05-2018)
3. Dr. Kuldip Singh (From: 01-04-2013 To : 31-03-2016)
4. Mr. Pramod Kumar Rastogi (From: 19-02-2010 To : 18-02-2013)
5. Mr.Govind Das Gaiha (From: 28-07-2008 To : 28-07-2011)
6. Dr. J.S. Sarma (From: 28-07-2008 To : 13-05-2009)
7. Lt Gen (Retd.) D.P.Sehgal (From: 15-09-2004 To : 14-09-2007)
8. Mr. Vinod Vaish (From: 01-04-2004 To : 31-03-2007)
9. Mr.P.R. DASGUPTA (From: 03-10-2000 To : 02-10-2003)
10. Mr. R.U.S. PRASAD (From: 29-09-2000 To : 28-09-2003)

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