Star India Private Limited v. M/S Noida Software Technology Park Limited & Ors

RAJIV SAHAI ENDLAW, J JANUARY 22, 2016 "pp"

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 22nd January, 2016 + W.P.(C) 70/2016 & CM No.392/2016 (for directions) STAR INDIA PRIVATE LIMITED ..... Petitioner Through: Dr. Abhishek Manu Singhvi, Mr. Aman Lekhi & Mr. Gopal Jain, Sr. Advs. with Mr. Saikrishna Rajagopal, Mr. Gopal Singh, Mr. Sidharth Chopra & Mr. Saurabh Srivastava, Advs. Versus M/S NOIDA SOFTWARE TECHNOLOGY PARK LIMITED & ORS ..... Respondents Through: Mr. Vivek Chib with Ms. Ruchira Goel, Mr. Asif Ahmed & Mr. Joby P. Varghese, Advs. for R-1. Mr. Meet Malhotra, Sr. Adv. with Mr. Tejveer Singh Bhatia, Mr. Upender Thakur, Mr. Viplav Singh Dhillon & Mr. Rohan Swarup, Advs. for R-2. Mr. Kirtiman Singh with Mr. Waize Ali Noor, Ms. Prerna Shah Deo & Mr. Gyanesh Bhardwaj, Advs. for TRAI. Mr. Manjul Bajpai with Mr. Shashwat Bajpai & Ms. Madhur Bharatiya, Advs. for R-9. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The petition impugns the orders dated 7th December, 2015 (in Petition No.295(C)/2014 and Petition No.526(C)/2014) and 18th December, 2015 (in Petition No.314(C)/2015) of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) inter alia on the ground that the procedure adopted by the TDSAT in making the said orders and the jurisdiction exercised in issuing the directions contained therein is / are beyond the powers of TDSAT under the Telecom Regulatory Authority of India (TRAI) Act, 1997. 2. The petition came up before this Court first on 6th January, 2016 when the counsel for the respondent no.1 caveator appeared and the senior counsel for the petitioner, the counsels for the other appearing respondents who are supporting the petition and the counsel for the respondent no.1 caveator were heard in extenso on the aspect of admissibility of the petition, particularly relating to the maintainability of the petition in the light of availability of alternative remedy of appeal under Section 18 of the TRAI Act and orders were reserved. On the contention of the senior counsel for the petitioner and the counsels for the other supporting respondents that TDSAT, notwithstanding having itself in the order dated 7th December, 2015 having suspended the operation of its said order till 31st March, 2016, was proceeding to implement the judgment, TDSAT was also requested to defer the hearing scheduled on 12th January, 2016 to a date after three weeks. 3. The senior counsel for the petitioner arguing on the aspect of TDSAT in passing the impugned orders having exercised powers beyond the jurisdiction vested in it under the Statute establishing TDSAT contended that, (i) though the petitions were relating to inter parties disputes but the scope thereof was expanded and others including the Regulator namely TRAI were impleaded as parties; (ii) issues beyond pleadings in the petitions before TDSAT were framed; (iii) the petitions were proceeded with like a Public Interest Litigation (PIL) and as if TDSAT enjoyed plenary jurisdiction; (iv) directions were issued to TRAI to frame Reference Interconnected Offer (RIO) and it was further directed that if TRAI does not frame the RIO the contracts between the parties to the petitions before the TDSAT shall stand altered in terms of the judgment; (v) jurisdiction as vested by the TRAI Act in TRAI was exercised by TDSAT; (vi) directions in contravention of Regulations framed by TRAI issued; and, (vii) unequals were treated equally; (viii) freedom of contract obliterated. 4. Reliance was placed on Bharat Sanchar Nigam Limited Vs. Telecom Regulatory Authority of India (2014) 3 SCC 222 to contend that the power of TRAI to make Regulations has been held to be a legislative as opposed to an administrative one and it was argued that TDSAT has no jurisdiction to hold the Regulations framed by TRAI to be bad or to direct TRAI to frame new Regulations or to pass any orders in contravention of the Regulations. 5. Reliance was also placed on the orders dated 18th April, 2013 and 14th November, 2011 of the Supreme Court in