HC ruling leaves TRAI emaciated

The division bench consisting of Justice Manmohan Sarin and Arun Kumar upheld the earlier ruling given by the single-judge bench under Justice Usha Mehra in July last year. The court dismissed a bunch of appeals filed by private telecom operators against the court’s earlier ruling.

The bench said: “Licensing powers of the Government are statutory powers which cannot be allowed to beinterfered or subjugated to another authority.”

With this judgment, under Section 11 (1) a of the TRAI Act of 1997, seeking TRAI’s recommendations for need and timing before issuing licences or settling their terms and conditions would not be mandatory for the Government. Further, under Section 11 (1) e of the Act, the TRAI would not have any jurisdiction over issues relating to the licensor (the Government -DoT) and licensee.

Reacting to today’s judgment, TRAI chairman Justice S S Sodhi said that “the real issue in the role for the TRAI will have to be finally settled by the Government through a policy and not legal interpretation.” Justice Sodhi put the onus on the Government to decide what it felt the role of a regulator should be vis-a-vis ushering in competition and then decide what the role of the regulator in this was.

The jurisdiction case dates back to March last year when the Department of Telecommunications (DoT) had dragged the TRAI to court when the latter struck down MTNL’s licence forcellular services. DoT had at that stage challenged the TRAI’s right to declare a licence invalid which was granted by the Government in its sovereign capacity. The case was decided in favour of the Government by Justice Usha Mehra in July last year. However, cellular operators then appealed to a division bench which delivered its judgment today.

In the second case heard in the morning, MTNL filed a case in the Delhi High Court yesterday challenging the TRAI’s show-cause notice to MTNL.

MTNL filed the case challenging the jurisdiction of the TRAI in preventing the company from implementing its licence for WLL mobile services given to it by the Government. The Attorney General Soli Sorabjee appeared on behalf of the MTNL.

The MTNL filed the case in response to the show-cause notice issued to it by the TRAI last week against the commercial launch of their mobile service without any clearance from TRAI of the tariffs proposed by MTNL.

MTNL’s contention has been that it had filed its tariffs with theTRAI as per the mandatory requirements five days prior to the launch. However, it was the TRAI which kept raising new issues relating to the tariffs for over a month, thus delaying the launch of the service.