HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.18168 of 2020
ORDER:
Since the issue of maintainability was raised in the Vacate Stay Petition (I.A.No.4 of 2020) it was taken up for primary determination.
Both the learned counsel agreed to argue on the issue of maintainability of the Writ Petition and accordingly they have argued the matter before the summer vacation. The matter was reserved for orders and the orders are being pronounced now.
The petitioners before this Court are Multi System Operator and Broadband Service Providers. They are aggrieved by certain actions of the 5th respondent, who is a triple play service provider (internet/broadband, distribution of TV channels and Telephone Connections). The petitioners have all entered into tripartite agreements with the 5th respondent, which are filed as material papers. Aggrieved by the action of the 5th respondent in disrupting their services, attempting to remove their subscriptions/customers etc., the present Writ Petition is filed by the petitioners.
The 5th respondent entered appearance and filed a detailed counter affidavit and raised a primary objection about the very maintainability of the Writ itself. I.A.No.4 of 2020 is the Vacate Stay Petition that has been filed, in which the maintainability of the Writ Petition is a fundamental issue that has been raised. As can be seen from the writ affidavit itself that the petitioners 2 are service providers with their own or captive subscriber bases. It is also not in dispute that the 5th respondent is a service provider with whom the petitioners have entered an agreement.
Since Sri A. Tulsi Raj Gokul raised the issue of maintainability he argued the matter at first. He drew the attention of this Court to the Telecom Regulatory Authority of India Act, 1997 (hereinafter called as "TRAI Act") and the citations filed by him viz., Akash Cable T.V.Network Private Limited & Anr. V Telecom Disputes Settlement & Appellate Tribunal, New Delhi & Ors.,; Union of India v Tata Teleservices (Maharashtra) Ltd., and National Highways Authority of India v Ganga Enterprises and Another.
It is the contention of Sri A. Tulsi Raj Gokul that the TRAI Act and its provisions are squarely applicable to the dispute in hand. He points out that the Telecom Disputes Settlement Appellate Tribunal (in short "the TDSAT") alone, which is established as per Section 14 of the TRAI Act has the jurisdiction, authority and power to hear and decide the present dispute. He relies upon Section 14 (a) (ii) of the TRAI Act to submit that the TDSAT has the jurisdiction to entertain the dispute between two or more service providers. Relying upon Sections 14M and 14N of the TRAI Act he argues that the purpose of the Act is to ensure all pending and future disputes should be heard and decided by the TDSAT only. He also draws the attention of this Court to Section 15, which expressly barred all the Civil Courts to entertain any suit or proceedings. They are restrained from granting interim orders also pointed as per 3 him. Basing on all these Sections in particular learned counsel argues that the TDSAT has the necessary power, expertise and jurisdiction to decide this dispute.
Relying upon the judgment of the learned Single Judge reported in Akash Cable T.V. Network case (1 supra) Sri T. Tulsi Raj Gopal points out that in similar circumstances when a telecom service provider approached the Writ Court, learned Single Judge held that the Writ Court does not have the jurisdiction. He relies upon the paragraph Nos.5, 19, 20, 42 to 44 to argue that it is only the TDSAT that has the jurisdiction to decide this dispute. Relying upon Tata Teleservices (Maharashtra) Ltd., case (2 supra) and in particular paragraph Nos.15 to 17 learned counsel argues that it is a self contained Code and this Court should not entertain the Writ at all. Lastly, relying upon National Highways Authority of India case (3 supra) learned counsel argues that the dispute arising out of a contract cannot be adjudicated by a Writ Court.
In reply to this Sri G.Venkateswarlu, learned counsel for the petitioners argues that the existence of an agreement is not in doubt, but he argues that the 5th respondent, which fits within the definition of "STATE " under Article 12 has to behave like a model employer and cannot take unilateral actions. He argues, without prejudice to any of his contentions, even if there is an alternative remedy the Writ Court is not precluded from entertaining a dispute if there is a failure of the principles of natural justice and the writ petitioners' fundamental rights are 4 affected. He points out that the petitioners have a fundamental right to carry on the business without any obstruction or hindrance except as per. The action of the 5th respondent is contrary to law as per him. Apart from that he also points out that it is very clearly averred in the Writ Petition that without giving any notice or hearing, the 5th respondent is acting unilaterally and taking away the captive base of subscribers of the petitioners solely due to political considerations. Therefore, he argues that the failure of the rules of natural justice is very clear and therefore he submits that this Court has the jurisdiction. He relies upon Harbanslal Sahnia and Ors., v Indian Oil Corpn., Ltd., and Ors., to buttress his argument on this matter. Therefore, learned counsel for the writ petitioners submits that this Court has the jurisdiction and the authority to deal with this matter and prays that the preliminary objection of the learned counsel for the 5th respondent should be overruled.
This Court appreciates the manner in which the matter was argued by both the learned counsel.
This Court also notices that there is no strict dispute in the fact that the petitioners are service providers. Similarly, it is not in dispute that the 5 respondent is also a triple play service th provider. This is clear from the reading of the Writ affidavit itself. A reading of the TRAI Act clearly shows that if there is a dispute between two or more service providers the TDSAT has the authority to decide the dispute. As rightly submitted by the learned counsel for the 5th respondent the TRAI Act should be 5 interpreted in a purposive manner to achieve its objective. Sections 14M; 14N and 15 make it clear that all the pending matters should be transferred to the TDSAT; Section 15 makes it clear no Civil Court shall entertain any suit or proceeding in respect of any matter which the Appellate Tribunal is empowered to deal with and no injunction order can also be granted. A reading of these sections and the other aspects or power of the Appellate Tribunal, as can be seen from Sections 16, 17, 18 and 19, make it clear that the petitioners have an effective remedy for reversal of their grievances. The Tribunal has the adequate powers, in the opinion of this Court, to record evidence and decide the dispute. Apart from that there is a right of legal representation (Section 17) given to the petitioners or similarly situated persons and an appeal is provided to the Hon'ble Supreme Court of India. In that view of the matter, this Court holds that there is an effective remedy available to the petitioners.
The tripartite agreement also contains Clause-13 dealing that Governing Law and Dispute Resolution. The first half of Clause 13 (2) states that the parties shall not seek an injunction from any court or tribunal except before the TDSAT. This issue is left open for the present. However, the latter half of the clause very clearly states that - the parties agree that all the disputes between the parties shall be resolved "solely" through proceedings instituted before the TDSAT. Clause 13 (1) also states that the rights and obligations of the parties shall be 6 governed by the laws of India. This Court is, therefore, of the opinion that in view of the Clause 13 (1) and for the purpose of this Interlocutory Application, the later half part of the Clause 13 (2) of the tripartite agreement is clearly applicable and the parties agreed to be bound by the law of the land which includes the TRAI Act (24 of 1997). With or without this clause the parties would be governed by this Act. In addition, they have expressly agreed that their dispute will be "solely resolved by the TDSAT". This naturally excludes all other courts.
While the case laws cited by the learned counsel for the petitioners is not in doubt this Court is of the opinion that the reading of the facts in the case law cited by the learned counsel for the 5th respondent make these cases more applicable to the facts of the present case. A learned single Judge of this Court held that in a dispute between service providers it is only the TDSAT which has the jurisdiction. The Hon'ble Supreme Court of India in the case of Tata Teleservices (Maharashtra) Ltd., case (2 supra) in paragraph No.7 held that Section 14 indicates that the TDSAT has been constituted to adjudicate on any dispute between licensor and the licensee or between two or more service providers. The same is reiterated in paragraphs 15 to 17 also. The Hon'ble Supreme Court of held that this Act 24 of 1997 is a self contained code. Hence, this Court is of the opinion that this Writ Court does not have the power to entertain let alone decide the present dispute. The Writ Petition is, therefore, disposed of on the sole ground that it is not maintainable. It is left open to the petitioners to agitate their 7 claim before the TDSAT. Accordingly, the Writ Petition is disposed of. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________________ D.V.S.S.SOMAYAJULU, J Date :15.06.2021 Ssv