1.

Tata Communications Ltd vs Telecom Regulatory Authority Of India (2nd July

2018)

Madras High Court

Held – the court held that regulations made by Trai are legislative and not executive
and thus wide and pervasive an hence cannot be made ineffective or modified by the
parliament and no other body ( unless arbitrary or violative or consti or the parent
act)

99. Before parting with this aspect of the matter, we may notice Sections 33 and 37. A
reading of the plain language of Section 33 makes it clear that TRAI can, by general or
special order, delegate to any member or officer of TRAI or any other person such of its
powers and functions under the TRAI Act except the power to settle disputes under
Chapter IV or make regulations under Section 36. This means that the power to make
regulations under Section 36 is non-delegable. The reason for excluding Section 36 from
the purview of Section 33 is simple. The power under Section 36 is legislative as opposed
to administrative. By virtue of Section 37, the regulations made under the TRAI Act are
placed on a par with the rules which can be framed by the Central Government under
Section 35 and being in the nature of subordinate legislations, the rules and regulations
have to be laid before both the Houses of Parliament which can annul or modify the
same. Thus, the regulations framed by TRAI can be made ineffective or modified by
Parliament and by no other body.

100. In view of the above discussion and the propositions laid down in the judgments
referred to in the preceding paragraphs, we hold that the power vested in TRAI under
Section 36(1) to make regulations is wide and pervasive. The exercise of this power is
only subject to the provisions of the TRAI Act and the Rules framed under Section 35
thereof. There is no other limitation on the exercise of power by TRAI under Section
36(1). It is not controlled or limited by Section 36(2) or Sections 11, 12 and 13.
 In view of the above discussion and the propositions laid down in the judgments
referred to in the preceding paragraphs, we hold that the power vested in TRAI under
Section 36(1) to make regulations is wide and pervasive. The exercise of this power is
only subject to the provisions of the TRAI Act and the rules framed under Section 35
thereof. There is no other limitation on the exercise of power by TRAI under Section
36(1). It is not controlled or limited by Section 36(2) or Sections 11, 12 and 13.”
[paras 89, 98 – 100]

2. Cellular Operators Association of India and ors. vs Telecom Regulatory

Authority Of India and ors – Supreme Court of India
23. It will thus be seen that though the Regulation making power under the said Act is
wide and pervasive, and is not trammeled by the provisions of Section 11, 12(4) and
13, it is a power that is non-delegable and, therefore, legislative in nature. The
exercise of this power is hedged in with the condition that it must be exercised
consistently with the Act and the Rules thereunder in order to carry out the purposes
of the Act. Since the regulation making power has first to be consistent with the Act,
it is necessary that it not be inconsistent with Section 11 of the Act, and in particular
Section 11(1)(b) thereof. This is for the reason that the functions of the Authority are
laid down by this Section, and that the Impugned Regulation itself refers to Section
11(1)(b)(i) and (v) as the source of power under which the Impugned Regulation has
been framed. Since ensuring compliance with the terms and conditions of licence is
the first thing that has been argued on behalf of the respondents, it is important to
advert to the provisions of the licence between the service provider and the consumer.
As has been mentioned above, two very important clauses of this licence refer to (i)
the power to modify the licence conditions which is contained in clause 5 and (ii) the
ensuring by the licensee that the quality of service shall be as prescribed by the
licensor or TRAI by clause 28 thereof. Under clause 5, the licensor reserves the right
to modify the terms and conditions of the licence if in the opinion of the licensor it is
necessary or expedient so to do in public interest or in the interest of security of the
State or for the proper conduct of telegraphs. It may be stated that no modification of
 the licence has in fact been attempted or has taken place in the facts of the present
case. Therefore clause 5 need not detain us further. Clause 28 reads as follows:
3. Competition Commission Of India vs Bharti Airtel Ltd ( 5th December 2018)

Supreme Court of India

81. We are of the opinion that as the TRAI is constituted as an expert regulatory body
which specifically governs the telecom sector, the aforesaid aspects of the disputes are to be
decided by the TRAI in the first instance. These are jurisdictional aspects. Unless the Civil
Appeals arising out of SLP (C) No. 35574 of 2017 & Ors. Page 104 of 122 TRAI finds fault with
the IDOs on the aforesaid aspects, the matter cannot be taken further even if we proceed on the
assumption that the CCI has the jurisdiction to deal with the complaints/information filed before
it. It needs to be reiterated that RJIL has approached the DoT in relation to its alleged grievance
of augmentation of POIs which in turn had informed RJIL vide letter dated September 06, 2016
that the matter related to inter-connectivity between service providers is within the purview of
TRAI. RJIL thereafter approached TRAI; TRAI intervened and issued show-cause notice dated
September 27, 2016; and post issuance of show-cause notice and directions, TRAI issued
recommendations dated October 21, 2016 on the issue of inter-connection and provisioning of
POIs to RJIL. The sectoral authorities are, therefore, seized of the matter. TRAI, being a
specialised sectoral regulator and also armed with sufficient power to ensure fair, non-
discriminatory and competitive market in the telecom sector, is better suited to decide the
aforesaid issues. After all, RJIL’s grievance is that interconnectivity is not provided by the IDOs
in terms of the licenses granted to them. TRAI Act and Regulations framed thereunder make
detailed provisions dealing with intense obligations of the service providers for providing POIS.
These provisions also deal Civil Appeals arising out of SLP (C) No. 35574 of 2017 & Ors. Page
105 of 122 as to when, how and in what manner POIs are to be provisioned. They also stipulate
the charges to be realised for POIs that are to be provided to another service provider. Even the
consequences for breach of such obligations are mentioned.