This article is written by Rachita Thakur pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.

Introduction

The Telecom Regulatory Authority of India (TRAI) was established on 20th February 1997 by an Act of Parliament called the Telecom Regulatory Authority of India Act, 1997. TRAI was established as an independent regulatory body to regulate telecom services, adjudicate and dispose of appeals, protect interest of consumers and of the service providers, fix and revise tariffs for telecom services which were earlier vested in the Government. The Act marked the entry of private service providers in Indian Telecom Industry. TRAI was established with the objective to provide a fair and transparent policy environment which promotes a level playing field and facilitates fair competition. 

In a time span of over twenty years and more, the functions and aims of the Authority have evolved with the technological advancements. The Telecom sector of India has also evolved with various technological evolvements thereby maintaining the pace with the fast-growing world. 

Key amendments

In about two decades of its existence, the TRAI Act has gone through some major amendments. TRAI, originally, was set up as a quasi-judicial authority to adjudicate upon the telecom disputes among other regulatory and recommendatory functions. However, with the advent of Telecom Regulatory Authority of India (Amendment) Act, 2000, this position has deferred, as in the functions of original TRAI have been divided into two bodies: The Telecom Regulatory Authority of India and The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) that takes care of Recommendatory and Regulatory functions and Dispute Settlement functions respectively.

Functions and powers of the authority

Section 11 of the Telecom Regulatory Authority of India Act, 1997 provides the powers and functions of the Authority. Following are the some functions of the Authority:

1. Make recommendations or determine the need and timing for induction of  new service provider, to determine and insure compliance of the terms and conditions of service providers, revocation of license for non-compliance of terms and conditions of license;
2. Provide measures to facilitate competition and promote efficiency in the operation of telecommunication services and for development of telecommunication industry and any other matter related to the telecommunication industry in general;
3. Lay down standard 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 providers so as to protect interest of the consumers of telecommunication services;
4. Levy fees and charges at such rates and in respect of such services and as may be determined by the regulations;
5. Perform other administrative and financial functions as may be entrusted by the Central Government to carry out the provisions of this Act;
6. Ensure transparency while discharging its functions and exercising its functions.

These recommendations provided by the authority are not binding up on the Government and the same would be considered with respect to the public interest. The Authority must send recommendations with matters related to the issuance of license to service providers within sixty days from the date when the Government sought the recommendations. The Authority, for the purpose of making recommendations, shall ask the Government to furnish necessary documents and the government shall supply the documents required within a period of seven days from the date of receipt of such request. Also, the government can issue a license to the service provider if the Authority sends no recommendation and in case the Government does not accept the recommendations, it can send back the recommendations to the Authority for consideration. 

The authority is vested with the power to call for information or conduct investigations under Section 12 of the Act. The Authority may by order in writing call for information in cases which it considers to be necessary such as call upon the service providers at any time and may ask them to furnish such information, can appoint one or more officers to conduct an inquiry in relation to the affairs of a service provider, direct any of its officers to inspect the books of accounts or any documents of any service provider. Section 13 of the Act provides that the Authority may issue directions to service providers from time to time, as it may consider necessary.

The telecom disputes settlement and appellate tribunal 

Department of Telecom (DoT) challenged the adjudicatory powers of TRAI before the High Court on the ground that TRAI did not possess jurisdiction to issue directions to department of Telecom in its capacity as a licensor. The High Court held that the TRAI not possess such power, the result of which was the formation of The Telecom Disputes Settlement and Appellate Tribunal (TDSAT). TDSAT was set up to adjudicate disputes and dispose of appeals with a view to protect the interest of service providers and consumers and to promote orderly growth of the telecom sector. 

Section 14 of the TRAI Act provides for the establishment of an Appellate Tribunal to adjudicate upon the disputes between a licensor and a licensee, two or more service providers and between a group of service providers and a group of consumers.

Powers and Jurisdiction of the Tribunal

Further, Section 19 of the TRAI Act, provides that Appellate Tribunal has all the powers of a civil court and for that purpose any order passed by the Appellate Tribunal shall be treated as a decree of civil court. In Cellular Operations Association of India and Ors. v. Union of India, the Cellular Operations Association of India approached the Tribunal under Section 14 of the TRAI Act challenging the decisions of the government on permitting the fixed service providers to offer WLL with limited mobility and the recommendations of TRAI in this respect. The Tribunal dismissed the application and the Cellular Operations Association filed an appeal under section 18 of the Act before the Supreme Court.

The Tribunal has power to exercise jurisdiction over Telecom, Broadcasting, IT and Airport Tariff matters under the TRAI Act, 1997, Information Technology Act, 2008 and the Airport Regulatory Authority of India Act, 2008. The Tribunal exercises its original as well as appellate jurisdiction with respect to Telecom, Broadcasting and Airport Tariff matters and can exercise only appellate jurisdiction with regard to Cyber matters. 

Appeal to Supreme Court (section 18)

Section 18 of the Telecom Regulatory Authority of India Act, 1997 reads as:

“Section 18. Appeal to Supreme Court-(1) Notwithstanding anything contained in the Civil Procedure Code, 1908 (5 of 1908), or in any other law, an appeal shall lie against any order, not being an interlocutory order, of the Appellate Tribunal to the Supreme Court on one or more of the grounds specified in Section 100 of that Code.

(2) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties.

(3) Every appeal under this section shall be preferred within a period of ninety days from the date of the decision or order appealed against.

Provided that the Supreme Court may entertain appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.”

Ingredients of Section 18

1. The orders of the Tribunal against which the appeal is to be filed must not be an interlocutory order, that is, an order which is not meant to be final. These orders are issued by the court while the case is still going on. Hence, no appeal can arise from them. 
2. Section 100 of the Civil Procedure Code, 1908 cites the grounds for filing second appeal to the High Court. It states that an appeal filed should involve a substantial question of law that may either be presented by the party in memorandum of appeal or the court may itself formulate such substantial question of; or an appeal may lie from an Appellate decree passed ex parte. Though, what is a substantial question of law is not explained anywhere in the Code, the Supreme Court in a very recent case, Nazir Mohamed v. J. Kamala and Ors, while determining the scope of appeals under section 100 of the Civil Procedure Code, 1908, iterated that a question to be substantial, it must be debatable, not previously settled by the law of land or any binding precedent, and must have a material bearing on the decision of the case and/or the right of the parties before it, if answered either way.
3. An appeal under this section can only lie when either of the parties to the case is aggrieved by the decision of the Tribunal and does not have the consent of each other towards filing the appeal.
4. Under this section, every appeal filed by the aggrieved party must be preferred in the Supreme Court before the expiry of a period of ninety days from the order of the Tribunal. 

Proviso to sub-section (3) of section 18 states that in case the appeal is filed after the expiry of said period of ninety days, the Supreme Court may entertain the appeal only if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal.

How to draft an appeal under section 18 of the Telecom Regulatory Authority of India Act, 1997?

When an appeal is filed, it is important to state acceptable reasons for doing so that the Supreme Court is satisfied by the facts and reasons cited. As already contended that the party filing an appeal in its memorandum of appeal must consider the substantial question of law and fact. In case the party filing the appeal does not formulate the substantial question of law, the Court will. Therefore, the appeal filed must be concrete enough for the court to step in to consider and formulate the substantial question of law and fact. A reference can be made to the Union of India and Anr. v. Association of Unified Telecom Service providers of India and Ors, While filing a civil appeal against the judgment and order of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), the Union of India urged 22 grounds but the appeal was dismissed by the Court. 

Some sample clauses that are to be included in the memorandum of appeal are:

• The clause clearly denies the acceptance of Tribunal’s order that was made against the appellant. It must be borne in mind that the aggrieved party has filed an appeal before the Court, therefore, fact that the tribunal’s order are against the party and are not right due to certain reasons

“The judgement and order passed by TDSAT was wrong, erroneous and contrary to law, thus, deserves to be set aside”

• Clauses that raise objection over the findings and judgment of the Tribunal must be added, such as, points were the Tribunal has not correctly interpreted the material facts of the case:

“Because the Hon’ble TDSAT failed to appreciate that ……………………”

• Where the appellant is aggrieved by the judgement or order of the Tribunal and files a civil appeal against the impugned order of the Tribunal:

“Because it is aggrieved by the conclusion of the Tribunal that the relief granted in the impugned order to the licensee shall apply from the date the licensee approached the Tribunal”.

• Where there is objection regarding the Jurisdiction of the Tribunal, that the Tribunal had no power or jurisdiction over the matter sought to be, then a clause contending the same must be added. Or that the application of any act or a section of an act, whatsoever, was wrongly considered by the Tribunal, then a clause citing the same must be added. 

“XYZ contends that the Tribunal does not have the power to give prospective effect to this judgement”.

After all the grounds that the appellant sought to be reconsidered by the Supreme Court are duly added in the memorandum of appeal, the Appeal under section 18 of the TRAI Act, 1997 may be filed before the Court, subject to the substantial question of law that the Court formulates. As such in the said case (Supra), the Court dismissed that appeal filed by the Union of India after having, at length, a discussion on substantial question of law and contentions raised by the appellant, thereby, upholding the decision of the Tribunal.

Conclusion

Drafting an appeal under Section 18 of the TRAI Act, 1997 (or otherwise in general) may require the appellant to rightly formulate all contentions based on the grounds so specified and consider the substantial question of law, which the Court will refer to. Therefore, the clauses in an appeal must be drafted with utmost care citing reasons that are acceptable by the Supreme Court.  

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