TELECOM DISPUTES
SETTLEMENT & APPELLATE TRIBUNAL
NEW DELHI
Dated 25th February, 2010
Appeal No.3 of 2006
Cellular Operators Association of India & Ors. … Appellants
Versus
Telecom Regulatory
Authority of India & Ors … Respondents
BEFORE:
HON’BLE MR. JUSTICE S.B.SINHA, CHAIRPERSON
HON’BLE MR. G.D. GAIHA, MEMBER
|
For Appellant |
: |
Mr. C.S. Vaidyanathan, Senior Advocate With Mr.Navin
Chawla,Advocate Mr. Sharath Sampath, Advocate |
|
For Respondent No. 1 For Respondent No. 2 For Respondent No. 3 |
: : : |
Mr. Vikas Singh, Senior
Advocate with Mr. Saket Singh, Advocate Mr. Maninder Singh, Sr
Advocate with Mrs. Prathiba M. Singh, Mr.Yoginder Handoo, Mr.Tejveer Singh
Bhatia, Advocates Mr. Arun Kathpalia,
Advocate Mr. Virender Singh
Thakur, Advocate |
JUDGMENT
S.B.
Sinha
Legality
and / or validity of a direction issued on 29.11.2005 by Telecom Regulatory
Authority of India (TRAI) purported to be in terms of section 36 of the Telecom
Regulatory Authority of India Act 1997 (hereinafter called and referred to for
the sake of brevity as ‘the said Act’) as also a Show Cause Notices dated
06.03.2006 / 08.03.2006 asking the respondents nos. 2 to 8 to show cause as to
why prosecution against them in terms of Section 29,30 and 34 thereof shall not
be launched, is the question involved in this appeal.
The
first appellant is an Association of Cellular Operators. Respondent Nos. 2 to 8
are the companies incorporated and registered under Indian Companies Act, 1956
having their respective offices mentioned in the cause title of the Appeal. They carry on their business in ‘telecom
services’ having been granted licences therefor in terms of the provisions of
the Indian Telegraph Act, 1885 (1885 Act) by the Union of India. TRAI in exercise of its powers conferred upon
it under section 11 of the Act issued general orders known as Quality of
Service (QOS) of Basic and Cellular Mobile Telephone Services, 2005 (11 of
2005) including benchmark for POI congestion at <0.5% i.e. not more than 1
out of every 200 calls transmitted through a POI must fail on ground of
congestion on or about 01.07.2005. In
terms of the said order, TRAI was authorized to review or modify the same.
As the
respondent no. 2 to 8 allegedly did not comply with the said QOS parameters, a
direction was issued by the TRAI on or about 29.11.2005 to the effect that the
same should be strictly met by 31.12.2005.
It is
contended by the appellants that although such a direction was also issued to
the BSNL, but whilst the POI congestion reports show excessive congestion with it,
the same POI was not shown as congested in its own report. According to the appellants, the POI between
the private operators and BSNL being a single pipe carrying both way traffic,
it would be impossible that the same pipe can be shown as 60% congested for the
private operator and nil (<0.5%) congestion for BSNL.
On or
about 06.12.2005, the first appellant made a representation against the said
direction highlighting the constraints faced by the Cellular Mobile Service
Providers in providing the desired quality of service stating that in the
absence of the compliance of pre-requisites by all the players the same cannot
be complied with. It was requested that
said direction be withdrawn till the said issue is adequately addressed.
TRAI
rejected the said representation by an order dated 19.12.2005 asking the Cellular
Mobile Service Providers to ensure speedy and effective interconnection in
terms of the said Regulations.
It is
accepted that BSNL and MTNL preferred Appeals before this Tribunal against TRAI
being Appeal No. 11 of 2002 and 12 of 2002 questioning the validity of the letter
dated 09.10.2002 conveying its approval for issuance of Reference Interconnect
Offer (RIO) by them. The said appeals were filed interalia contending that
after the amendment in the Act in 2000, TRAI had no authority to fix the terms
and conditions of the interconnection under section 11 (1) (b) (ii) of the Act
both for old and new licences irrespective of stipulations contained therein.
This Tribunal restricted the powers of TRAI in the matter relating to interconnect
agreements. It furthermore appears that
the BSNL had filed an appeal being Appeal No. 31 of 2003 before this Tribunal and
by an order dated 03.05.2005, it was held that TRAI had no power to mandate
direct connectivity. Yet again in Appeal
No. 9 of 2005, this Tribunal by an order dated 19.07.2006 directed BSNL to
provide interconnection within 90 days from the date of receiving payment
from the interconnection seeker and in
case, it was not in a position to provide for therewith, it should inform TRAI
about the reasons therefor. This
Tribunal also set aside the order of TRAI dated 21.04.2004 on disconnection of
POIs in Appeal No. 2 of 2004.
The authority
of TRAI, thus, in three of the four aforementioned cases were limited by this
Tribunal. According to the appellant,
however, despite the same, TRAI went on to blame the service providers for not
taking steps in reducing the time period in the matter of obtaining interconnection
agreement through mutual discussions or legal measures.
The
appellants contend that the stand taken by TRAI is wrong in as much as:
1. The
appellants had been writing to TRAI as also the Department of
Telecommunications (DOT) complaining of such delays and seeking such directions
issued in this behalf.
2. The
interconnect agreement entered into by and between the service providers and
the BSNL provides for a period of 12 months for interconnection and thus they could
not have taken any legal action in relation thereto.
3. Negotiations by and between the service
providers themselves would not have been an answer to the problem as was also
accepted by TRAI in its study paper dated 02.11.2005.
4. The
appellant association as a party in the legal proceedings initiated before this
Tribunal in the matters of ‘RIO’ and ‘Direct Connectivity’, support the stand
of the Authority and in view of the fact that the power of TRAI was limited,
the operators could not have achieved any effective interconnection.
5. The appellants could not have taken any
legal measure to reduce the period of interconnection as the period during
which such interconnection could have been provided was twelve months and although
at the relevant point of time when the Show Cause Notice was issued, the
reduced period of 90 days as directed by TRAI was the subject matter of an
order passed by the Tribunal at the instance of BSNL but the same was directed
to be stayed.
6. The
contention of TRAI was that cases of congestion where there was a pending
demand for E1 as also where there was no pending E1 demand as well as the stand
of the TRAI that service providers had not taken any step as per the
interconnection agreement for timely augmentation thereof, for the reasons
noted hereinbefore, were incorrect.
7. The
statement of TRAI that congestion at POI was not the only reason for not
complying with the QOS parameters are not relevant having regard to the fact the
impugned Show Cause Notice had been issued only for POI congestion.
By a
letter dated 29.12.2005 the first appellant asked for further time to respond to
the direction of TRAI. A prayer for
review of the above decision was also made.
TRAI is
said to have made a report for the period Oct and Nov 2005 on or about 17.01.2006
wherein it was noted that 80 POIs have congestion more than 40%, out of which
78 POIs (97.5%) were with BSNL. It was
stated that POI congestion was on account of inadequate junctions between two
networks. It was furthermore, noted that
increased level of congestion was due to delay in augmentation of inter network
junctions. It is stated that the said
congestion report of BSNL did not provide for details of congestion so far as
private operators are concerned.
The
first appellant submitted a detailed representation to TRAI on or about
10.02.2006 in respect of the aforementioned communication dated 19.12.2005
pointing out the initiatives which were said to have been taken by it for
decreasing the congestion levels.
The
impugned show cause notices were issued on 06.03.2006/08.03.2006 in relation to
the POI congestion only, alleging that the appellant had failed to inform TRAI
as regard concrete steps taken for the purpose of negotiating the time period
and / or legal measures taken by petitioners.
A representation against the said show cause notices was filed by the
first appellant before TRAI on or about 14.03.2006 inter alia expressing
concerns that it had made attempts to shift the blame on the cellular service
providers and, thus, accusing the wrong party and blaming the victim for its
desperate condition. It was submitted
that POIs are two way exchange of traffic and if congestion is reported in one
direction, the same degree of congestion would be bound to be present in the
other direction and thus it would not be correct to blame only one party.
The
said representation of the first appellant was rejected by TRAI by its order
dated 16.03.2006 opining that it had no locus standi therefor and reiterating
that operators should have taken steps for negotiations and / or taken legal
measures in relation thereto.
The first
appellant made another representation on or about 17.03.2006 stating that the
functions of laying down QOS norms cannot be discharged in isolation and the
authority has also to ensure the back up infrastructure support system. It was furthermore urged that law does not
impose an impossibility to be performed and for the purpose of approaching this
Tribunal, the operators would have a right that either flows from the contract
or from the statute.
Despite
the fact that the matter was pending, a press release was issued by the then
Chairman of TRAI on or about 18.03.2006 which, according to the appellants,
would show that TRAI had already decided to take action against them.
It on
the aforementioned grounds filed this Appeal inter alia praying for the following
reliefs:
“(a) This Hon’ble Tribunal may be pleased to set
aside and quash directive No. F.No. 303-1/2005-QOS dated 29.11.2005 as also the
show cause notices dated 06.03.2006/08.03.2006 issued by the Respondent.
(b) This Hon’ble Tribunal may be pleased to
restrain the respondent from taking any coercive action against the appellants
on the basis of directive no. F.No.303-1/2005-QOS dated 29.11.2005 as also the
show cause notices dated 06.03.2006/08.03.2006.”
We may,
however, notice that the appellants in sub-para (iv) of para 4 of the appeal
stated as under:
“iv) That the appellants welcomed the above
regulation and made all efforts to achieve the same as it was in their interest
as well to achieve the above parameters as it would lead to customer
satisfaction and in turn larger business for the appellants. However, for achieving the above parameters,
the appellants needed inter alia adequate, timely and effective interconnection
to keep pace with the aggressive growth that was being witnessed in their
networks. Availability of points of
interconnection is determined by the interconnection agreements executed
between the parties. The bulk of the
interconnection facilities are required from the incumbent operators
BSNL/MTNL. As per the interconnection
agreements entered into with them, a time period of 12 months has been
specified for provision of new Points of Interconnection (POIs).”
Presumably, on the basis of said
statement this Tribunal by an order dated 21.11.2006 directed as under:
“During
the course of hearing it has been felt that the BSNL and the MTNL would be
proper parties in this petition. Let
notice be issued to both of them through their respective counsels. Mr. Maninder Singh accepts notice on behalf
of BSNL and Mr.Vivek Malik accepts notice on behalf of MTNL. Let the amended memo of parties be filed
within two weeks. Reply be filed within
two weeks. Rejoinder be filed within one
week thereafter as prayed.
Mr.Meet
Malhotra, appearing for the TRAI submits that he would like to file affidavit
stating the latest position regarding the controversy involving in the present
appeal. Let the same be filed by the
next date of hearing. Counsels should
supply copies of the affidavits to the counsel for appellants before filing
them in the Registry. “
This
Tribunal directed impleadment of the BSNL and MTNL as parties to this appeal;
no reason, however, was assigned in support thereof.
During the pendency of these
proceedings, a statement was made by the appellants that since issuance of show
cause notices, ground realities have changed as a result whereof, the position
with regard to the POI congestion and grant of E1 had improved whereupon the
same was directed to be placed on record, pursuant thereto the appellant on
29.09.2008 filed an additional affidavit interalia stating that so far as
congested POIs were concerned, except for 4 POIs no congestion has been
reported for other POIs. It was
furthermore, stated that so far as the said 4 POIs are concerned, the same was
due to demand for E1 pending with BSNL and congestion level was reduced to 1/3rd
although a number of subscribers have grown four fold. It was reiterated that POIs are for two way
traffic and responsibility for augmentation cannot be put solely on the
appellants.
On 20.03.2009 TRAI issued a fresh
standards of QOS which came into force on 01.07.2009.
In para
4.7.3 thereof it was stipulated:
“As
regards the suggestions to exclude issues that are not control of the service
providers, the authority is of the view that only performance affected due to
force majeure conditions need to be excluded for calculation purpose.”
It has
been urged that if the said condition was implemented retrospectively then the
same would mean that submissions made in the appeal would have to be
reconsidered in view of the fact that the defence raised by the appellant is in
regard to ‘force majeure’ or not only.
By an
order dated 26.03.2009, this Tribunal suggested as to whether TRAI would like
to consider the issue of subsequent developments and the present condition on
POI congestion afresh but TRAI stated that it would like to contest this
appeal.
Mr. C.
S. Vaidyanathan, learned senior counsel appearing on behalf of the appellant would
submit:
1. TRAI
has wrongly relied upon regulations / directions which have been set aside by
this Tribunal in view of the express provisions in the interconnect agreement
providing for 12 months’ period.
2. TRAI
must be held to have committed an error in directing the appellants to take
legal measures if the interconnection was being delayed, in as much as rights
of the appellants were either to flow from a contract or a statute, none being
available to them,
3. Negotiations
in these matters between parties would not have helped as interconnection was
recognized by it in its study paper.
4. As
in the absence of adequate E1 ports POI congestion benchmark was impossible to
be achieved, the impugned notices are vitiated in law as law does not envisage
compliance of an impossibility.
5. As
TRAI had recognized the condition of force majeure in the amended regulation, there
was no reason as to why the said authority should have taken into consideration
the same even for the purpose of issuing the impugned directions.
6. The
appellants cannot be said to have any mens rea in the matter of purported
violation of QOS regulations and thus the impugned show cause notices are
liable to be set aside.
7. TRAI
in any event ought to have taken into consideration the subsequent events
showing improvement in view of grant of E1 ports as thereby the POI congestion
should have also considerably improved. Although TRAI in its reply affidavit stated
that BSNL’s RIO had provided for six months time for interconnection and the
appellant did not choose the same, the blame on appellants must be held to be
erroneous as vide its letter dated 12.11.2005, TRAI informed the appellants that
BSNL’s and MTNL’s RIO did not have its approval.
Mr.
Vikas Singh, learned senior counsel appearing on behalf of the respondent, on
the other hand, would urge:
1. From
a perusal of Sections 11, 12 and 13 of the Act, it would be evident that TRAI
not only has the power to frame regulations but also is required to ensure
compliance thereof and thus in case of non–compliance, it has the power to
issue requisite directions and failure to comply with the same, would automatically
entail penal consequences.
In
that view of the matter, issuance of Show cause notice cannot be said to be
illegal or without jurisdiction warranting interference by this Tribunal at
this stage.
2. The
appellants could have approached this Tribunal even if earlier regulation have
been struck down for the purpose of reconsideration of the time period for
entering into interconnect agreement.
3. An
interim order passed by this Tribunal directing compliance by BSNL to provide
for interconnection within a period of 90 days being continuing, in case of
violation thereof, there was absolutely no reason why the appellant could not
have approached this Tribunal for a direction upon BSNL / MTNL to provide
POI.
4. Reply
affidavit filed on behalf of the BSNL and MTNL would show that Show Cause
notice have been issued only in case where the operators have not been able to
show an improvement in the performance as the respondent no. 2 to 8 has
deteriorated, action is sought to be taken.
5. The
contention of the appellant as to why no action had been taken by the TRAI
against BSNL and MTNL has no merit as it is evident that BSNL and MTNL had shown
sufficient improvement in the matter of meeting quality parameters.
The
questions which, therefore, arise for our consideration in this Appeal,
are:
1.
Whether TRAI acted illegally and without
jurisdiction in issuing the impugned direction?
2.
Whether the impugned show cause notices are
vitiated in law and would amount to an order or decision within meaning of
Section 14 (b) of the Act so as to enable the appellants to invoke the
jurisdiction of this Tribunal?
3.
Whether the TRAI has prejudged the entire issue?
4.
Whether the action taken against the appellants
by TRAI are discriminatory in nature in so far as no action has been taken
against BSNL/MTNL?
5.
Whether non-compliance by the appellants was an impossible
act?
6.
Whether QOS regulations are directory or
mandatory?
7.
Whether Show Cause Notice are otherwise ultra vires
in law?
Before
adverting to the aforementioned contentions, we may notice the provisions of
the statute.
The Act
was enacted inter alia to protect the interest of service providers and
consumers of the telecom sector, to promote and ensure orderly growth of the
telecom sector and for matters connected therewith or incidental thereto.
TRAI
has been constituted under section 3 of the Act. Section 11 occurring in Chapter III provides for
powers and functions of the Authority.
Sub-clause(a) of sub-section (1) of Section 11 empowers TRAI to make
recommendations, whereas clause (b) contemplates discharge of functions by it.
Sub-clause
(iii) thereof provides for ensuring technical compatibility and effective
interconnection between different service providers.
Sub-clause
(v) of the aforementioned provision envisage that the functions of TRAI are also
to lay down the standards of QOS to be provided by the service providers and
ensure the QOS and conduct periodical survey of such service provided by the
service providers so as to protect interest of the consumers of
telecommunications services.
Section
12 of the Act provides for powers of Authority to call for information, conduct
investigations, etc.
Subsection
(4) thereof reads as under:
“(4) The Authority shall have the power to issue
such directions to service providers as it may consider necessary for proper functioning
by service providers”.
Section
13 of the Act empowers TRAI to issue directions in the following terms:
“13. Powers of Authority to
issue directions. The Authority may, for
the discharge of its functions under sub-section (1) of section 11, issue such
directions from time to time to the service providers, as it may consider
necessary.
Provided that no direction under sub-section (4) of section 12 or
under this section shall be issued except on the matter specified in clause (b)
of sub-section (1) of section 11."
Establishment
of this Tribunal is for the purpose inter alia, of adjudication of any dispute
between the parties mentioned in clause (i) to (iii) of Section 14 of the Act, clause (b) whereof provides for hearing and
disposal of appeal against any direction, decision or order of the Authority
under the Act.
Chapter
VI of the Act provides for miscellaneous powers.
Section
29 provides for penalties for contravention of the directions issued by the Authority
making it punishable with fine of Rs. 1 lakh and in case second or subsequent
offence the same may extend to Rupees two lakhs and in case of continuing
contravention with additional fine which may extend to two lakhs rupees for
every day during which the default continues.
Section
30 provides for offences by Companies.
Section
34 restricts the power of any Court to take cognizance of any offence
punishable under the Act or the rules or regulations made thereunder, save on a
complaint made by the Authority.
Section
36 of the Act empowers TRAI to make regulation.
The said Regulation is said to have been made by TRAI in exercise of its
power sub-section (1) of Section 36.
Before
adverting to the rival contentions made by the parties, we intend to place on
record that although pursuant to the order of this Tribunal dated 21.11.2006,
BSNL and MTNL were impleaded as parties pursuant whereto and in furtherance
whereof detailed replies have been filed on their behalf raising a large number
of factual contentions; We are of the
opinion that in the facts and circumstances of this case, the jurisdiction of
this Tribunal being limited, no necessity was felt to hear the counsel for BSNL
and MTNL.
The prayers made in this appeal are
limited. Indisputedly, directions have
been issued to the appellants. Show
Cause Notices have also been issued to the appellants. For one reason or the other, TRAI had not
considered it necessary to issue any direction upon BSNL and MTNL and / or some
other cellular mobile service providers, justifiability whereof may be open to
question.
But we
are firmly of the view that it is not necessary to dwell thereupon in this case
as it will not be proper to widen the scope of this appeal.
Section 14 (b) of the Act reads
as under:-
Section 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)
................
(b) hear and dispose of appeal against any
direction, decision or order of the Authority under this Act.”
The
impugned direction has been issued by TRAI in exercise of its statutory power
conferred on it under Section 13 of the Act.
It is not in dispute that TRAI has the requisite jurisdiction to make
regulations or issue general orders. The
validity and/or legality of the regulations is not in question. What is in question herein is its
implementation.
In
terms of the provisions of the Act, TRAI, as a regulator, while exercising its
functions, is not only required to ensure technical compatibility and effective
interconnection between different service providers, as contained in
sub-section (iii) of the Clause (b) of Section 11 of the Act but is also entitled
to lay down the standards of quality of service to be provided by the service
providers and ensure the quality of service and conduct the periodical survey
of such service provided by the service provider so as to protect interest of consumers of
telecommunication services.
The
term ‘ensure’ would mean to secure, to make sure certain or safe (see Ram Nath
Iyyer’s Dictionary page 392).
There cannot
be any doubt or dispute that ensuring some acts having regard to the provisions
of the General Clauses Act would mean that the said function would be a continuous
one. It is not a case where the
functions performed by a statutory authority were to get exhausted. We are mentioning this only to show that TRAI
will have the requisite authority to continue to ensure compliance with the
regulations made by it from time to time as it is well known that if a
statutory authority has the power to perform a function, the same can be exercised
from time to time. It cannot, therefore,
be said to be a case where the authority has lost its jurisdiction to issue
direction after making the regulations.
In discharge of its functions, thus, it became obligatory on the part of
the Authority to ensure compliance of the regulations made by it.
We have
no doubt in our mind that for the said purpose, the Authority will also have
the requisite jurisdiction to issue direction.
Mr.Vikas
Singh, the learned senior counsel appearing on behalf of the respondent has
brought to our notice the decisions of a three-Judge-Bench of the Supreme Court
of India in TRAI Vs. BSNL Mobile Cellular Ltd, Civil Appeal No. 6743/2003
disposed of on 28.3.2006 wherein it has been held as under:-
“It
appears to us on a reading of all these provisions that the word ‘directions’
had been used in a wide sense to cover orders/regulations which in effect
direct an action to be taken if we were to limit Section 29 only to directions
which were not directory orders or/ directory regulations this would mean that
violation of such orders/regulations would not carry any penal consequence
whatsoever. Consequently, the entire
scheme of the Act would become unworkable.
Besides Section 11(1)(b) in respect of which directions may be issued
has itself also been widely framed.
Indeed the order in question pertains to the provisions of Section
11(1)(b)(i) as we have already stated.
It may be that Section 29 creates an offence and therefore, must be strictly
construed. However, that principle will
not militate with the principle that the interpretation of a word must be made
contextually. We have to ascertain the
meaning of the word ‘directions’ in Section 29.
The word ‘directions’ can take within its fold directory orders and
regulations in the nature of directions as a matter of semantics. Besides in the context of the Act there is no
reason not to include the orders and regulations containing directions within
the word ‘directions.’ This would also
be a logical corollary as such regulations and orders have appended to them a
more serious mandate. In rejecting the
view expressed by the TDSAT we would respectfully adopt the language used by
the Constitution bench of this Court in Bashiruddin Ashraf vs The Bihar Subai Sunni Majlis-Awaqf and
Anr. AIR 1965 SC 1206.
“The
Argument is not only new but is also utterly wrong. Orders and directions express the binding
wish of the Majlis and the two words only differ in degree. An order is more peremptory than a direction
and an argument can never be right which suggests that while disobedience of a
direction should merit the punishment of removal disobedience of an order should
go unpunished.”
Consequently
the appeal must be allowed. Since the
appellant has already withdrawn the complaint filed against the respondent, we
make it clear that our decision will not result in revival of those
proceedings.
Mr.Vaidyanathan would submit that the
regulations do not provide for any consequences and, thus, they are directory
in nature and not mandatory. It is true
that ordinarily a statute which is sought to be made imperative in character
should provide for a consequence clause but the same in our opinion is not
decisive. The question as to whether a
provision shall be directory or mandatory must be considered from the object
and purport of the statute. Public
interest involved in the matter also would have relevance.
Mr.Vaidyanathan
has strongly relied upon a decision of the Supreme Court of India in Shaikh
Salim Haji Abdul Khayumsab Vs Kumar and Ors [2006(1) SCC 46]. In that case, the question which arose for
consideration was whether a Written Statement in a Suit should mandatorily be
filed within a period of 30 days. It is
in the aforementioned situation it was observed:-
“It
is also to be noted that though the power of the court under the proviso
appended to Rule 1 of Order 8 is circumscribed by the words” shall not be later
than ninety days” but the consequences flowing from non-extension of time are
not specifically provided for though they may be read by necessary
implication. Merely, because a provision
of law is couched in a negative language implying mandatory character, the same
is not without exceptions. The courts,
when called upon to interpret the nature of the provision, may, keeping in view
the entire context in which the provision came to be enacted, hold the same to
be directory though worded in the negative form.”
Our attention
has also been drawn to the fact that TRAI in Standards of Quality of Service of
Basic Telephone Service (wireline) and Cellular Mobile Telephone Service
Regulations, 2009 has provided for such a consequence of Clause 9, which is in
the following terms:-
“9. Reporting…….Every service provider shall
submit to the Authority its compliance reports of benchmarks in respect of each
Quality of Service parameter specified under regulation 3 and regulation 5 in
such manner and format, at such periodic intervals and within such time limit
as may be specified by the Authority, from time to time, by an order or
direction.”
A statute, as is well known, depends
on its text and context. In a situation
of this nature, the same would require a purposive construction. The regulations are framed by an independent regulator
for the benefit of public. It is the
public which would be benefitted if the quality control is enforced.
Mr.Vaidyanathan
very fairly stated that the petitioner No. 1 association wanted such a
regulation. If that be so, there is absolutely no reason as to why they should
not be implemented in proper perspective.
Even a directory statute, as is well-known, is required to be
substantially complied with. We cannot
say that no compliance whatsoever is envisaged even in respect of a statute
which is held to be directory. We also
fail to see any reason as to why the regulations would not be held to be
mandatory. It may be that even in
certain situation, a mandatory statute is incapable of compliance.
Lex non cogit ad impossibilia is a
well-known doctrine. Thus, if a person
faced with a penal proceeding is able to show that the same was
impossible/impracticable to be complied with, he may not be punished.
In Dove
Investment Pvt. Ltd. Vs. Gujarat Industrial Investment Corporation [2006(2) SCC 619], the Supreme Court of
India held as under:-
“13. Whether a statute would be directory or
mandatory will depend upon the scheme thereof. Ordinarily a procedural
provision would not be mandatory even if the word “shall” is employed therein
unless a prejudice is caused. (See P.T. Rajan v. T.P.M. Sahir)
14. In Chandrakant
Uttam Chodankar v. Dayanand
Rayu Mandrakar this Court observed: (SCC p. 212, paras 74-75)
“74. In this case it is
not necessary for us to go into the question as to whether Section 83 is
imperative in character or not inasmuch it is settled law that even where the
expression ‘shall’ is used, the same may not be held to be mandatory. Even a
mandatory provision having regard to the text and context of the statute may
not call for strict construction.
75. In U.P.
SEB v. Shiv Mohan Singh
this Court stated the law in the following terms: (SCC p.440, paras 96-97)
‘96. Ordinarily, although the word ‘shall’ is
considered to be imperative in nature but it has to be interpreted as directory
if the context or the intention otherwise demands. (See Sainik Motors v. State
of Rajasthan AIR para 12.)
97. It is important to note that in Crawford
on Statutory Construction at p.539, it is stated:
“271. Miscellaneous implied exceptions
from the requirements of mandatory statutes, in general.—Even where a
statute is clearly mandatory or prohibitory, yet, in many instances, the courts
will regard certain conduct beyond the prohibition of the statute through the
use of various devices or principles. Most, if not all of these devices find
their jurisdiction in considerations of justice. It is a well-known fact that
often to enforce the law to its letter produces manifest injustice, for
frequently equitable and humane considerations, and other considerations of a
closely related nature, would seem to be of a sufficient calibre to excuse or
justify a technical violation of the law.” ’ ”
Having
regard to the fact that the regulations framed were to protect the interest of
the consumers, there cannot be any doubt that they are mandatory in
character. If the Regulations are
mandatory and the Authority had the jurisdiction to issue the direction, we are
of the opinion that it is not necessary to go into any other question(s).
So far
as the show-cause notices are concerned, we are of the opinion that the same is
not a decision or an order, whereagainst an appeal can be filed before this
Tribunal.
It is
true that when the show cause notice suggests that the same had been issued,
with a pre-conceived notion or the authority had prejudged the issues, the person
aggrieved may have the remedy. We,
however, are of the opinion that the same may not be inferred only because a
statement to the press has been issued.
Before us, parties had argued that virtually TRAI has a closed mind in the
matter but we are sure that the Members of the Authority would proceed with an
open mind.
We further
are of the opinion that as all their contentions shall remain open, the petitioners
shall not be prejudiced in any manner whatsoever if they file their show causes
before TRAI. We have deliberately not
entered into the merit of the matter as any observations made by us one way or
the other may prejudice the parties hereto.
Show cause by the petitioners may be filed within two weeks from date.
For the
reasons aforementioned, we dispose of this matter directing TRAI to consider
the show cause filed by the petitioner and take appropriate decision thereon. We have no doubt in our mind that TRAI shall
give a fair opportunity of hearing to the petitioners and shall take into
consideration all their contentions including the subsequent events. Even otherwise, we are of the opinion that
in a case of this nature, where cooperation of all the operators is necessary,
it will be reasonable to opine that TRAI shall issue appropriate directions for
undertaking a consultative process so as to obtain the viewpoints of all the
players in the field. The jurisdiction
of the TRAI is very wide, and, thus, it may seek for the cooperation of all
concerned, including the major players in the field.
With
the above observations, this Appeal is disposed of, with no order as to costs.
………...... J
(S.B. Sinha)
Chairperson
…………….....
(G. D. Gaiha)
Member