Music Broadcast Private Limited ... vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 141 Del

JUDGMENT

S. Ravindra Bhat, J.

1. In these batch of petitions under Article 226 of the Constitution of India, the reliefs claimed are appropriate directions to set aside two orders passed by the Telecom Dispute and Settlement Appellate Tribunal ( TDSAT for short ) dated 17-11-2004 and 14-01-2005 ( hereinafter referred to as "the first order" and "the second order" respectively). Relief has also been sought by way of a direction to the respondent Union of India to take a decision on the recommendation of the Telecom Regulatory Authority of India (TRAI) dated 11.08.2004 and 19.11.2004. The third category of relief sought is quashing of two demand letters dated 19.4.2004 issued by the Central Government. Certain other consequential orders have also been sought.

2. These petitions were initially heard on 28.1.2005. The respondents, appearing through counsel on advance notice, were asked to indicate broadly what could be time frame within which a final decision could be taken by the Central Government in the matter, since many issues hinge upon the grievance made that the Central Government has been dragging its feet in that regard. Mr. Rajiv Mehra appearing for the respondents 1 to 3 in the matter today made a statement that the issues covered by the recommendations of the TRAI are engaging the attention of the Government. He submits that these recommendations would require an overall consideration of various nuances involving participation of five ministries, and that the issues involved also impact upon policies regarding Convergence. He, therefore, declined to make a statement about the time frame within which a final decision would be taken by the Central Government, under the Act. The matter was therefore taken up for disposal.

3. The petitioners are holders of FM Radio Broadcast Licenses. These licenses were issued to them in on different dates in 2000-01. As per conditions of the licenses a fixed fees were payable in respect of the services permitted. It is averred that the petitioners started incurring financial losses sometime in 2001 leading to a demand, on their part, for change in the licensing policy. This resulted in the constitution of a committee known as the Radio Broadcasting Committee. That Committee considered various policy issues with regard to the licensing within the industry and made its recommendation on 20th January 2004.

4. In the meanwhile on 9.1.04 the Radio Broadcasting Industry (hereafter "the Industry") was brought within the umbrella of the regulatory mechanism provided under the Telecom Regulatory Authority of India Act, 1997 (hereinafter called "the Act"). Resultantly, the Industry fell within the purview of the TRAI.

5. The TRAI considered the various issues involved with regard to the licensing within the FM Radio Industry and made its interim recommendations on 06.04.04. The interim report also recommended inter alia, that whenever license fees fell due, the licensees ought to be given the facility of deferred payment till a final decision was taken.

6. By this time, it is averred, the license fee in respect of the existing licenses fell due. The Government of India, accordingly issued demand letters, (commencing on 19.04.04 in some of the petitioners' cases, and on later dates, in the other petitioner's cases, hereafter referred to as the "impugned demand") requiring all the licensees to forthwith deposit amounts payable by each of them. The impugned demands were on the footing the second years license fee (in some cases, and in some cases the third year's license fee) were not recovered at the request of the licenses, even though they were due. The impugned demand therefore, required payment of amounts said to be falling due under the subsisting license arrangements entered into by the petitioners.

7. The petitioners felt aggrieved by the impugned demand of the Government; they approached the TDSAT under Section 14 of the Act. The challenge to the impugned demands were premised upon the fact that since the entire gamut of the licensing policy was engaging the attention of TRAI, (which had in fact made a favorable interim recommendation), the Government ought not to have insisted on payment of the license fee. The other contention raised by the petitioners before the TDSAT was that the direction regarding payment, was not in accordance with the procedure established by law under Section 11 of the Act.

8. In respect of some of the demands the TDSAT, passed a detailed order on 13.05.04. This order was an interim measure and had the effect of staggering payments to be deposited by the licensees. The petitioners were permitted deposit one third of the license fee in the year demanded by the Government through the impugned demands, in those proceedings. The further condition was that the Bank Guarantees already lodged with the Government be kept alive. Some of the petitioners who had approached the TDSAT and in whose applications the interim measures were made on 13.5.04 approached this Court by way of a writ petition. That was disposed off on 18.5.04 recording their stand to the effect that amounts in question would be deposited on or before 10.06.04. The Court also forbade the Government from encashing the existing bank guarantees till 10th June, 2004.

9. The TRAI made its final recommendations on 11.8.2004. It proposed a regime of revenue sharing by which 4% of the gross turnover was to be appropriated by the Government each year. In addition what was termed as a "migration package" was also proposed. These recommendations of TRAI, under Section 11 were sent to the Central Government for its consideration and approval.

10. On 26.8.2004 the proceedings before the TDSAT were taken up. By its order the TDSAT recorded that the TRAI had given its recommendations on 11.8.2004 that the Government should take urgent steps to examine the same. The matter was again considered by TDSAT on 23.9.2004 when it recorded a statement on behalf of the Government that the recommendations of TRAI were still under examination.

11. Apparently the Government considered the recommendations of TRAI and referred them back with its comments, (on 19.10.2004) eliciting the response of the TRAI on several issues. In this background the matter was taken up by the TDSAT only on 17.11.2004. On that day the proceedings read as follows :-

" Both M. Gosain and Mr. Pandey state that the recommendations of TRAI which were received by the DOT have been again sent back to TRAI for reconsideration. In view of this matter, it may take some time for the recommendations to be finally accepted or otherwise by the DOT. We, therefore, adjourn the matter. Petitioners will further deposit one-third of the license fee for the year within two months in terms of our earlier order.

To be listed on 2nd February, 2005 for directions/further proceedings."

12. The TRAI made its final recommendations in answer to the queries posed by the Government on 19.11.2004. The TRAI in its recommendation reiterated introduction of the license sharing arrangement. Its logic, inter alia, was as follows :-

""The objective of recommending a license share of 4% of gros-revenue is to bring down the burden on the industry and naturally this would lead to a decline in the revenues of Government. It needs to be strongly emphasised that the current revenues of more than Rs.100 crores per annum are not sustainable as indicated in the section on license fee structure in paragraph3.4 of the recommendations and the table at Annexure-I to this note. The table attached as Annexure-I to this note indicates the revenue, expenditure and loss figures reported by the various licensees. It may be noted that in the case of ENI Ltd and Music Broadcast Pvt Ltd separate accounts are not available for separate licenses. In the case of Sun TV and Udaya TV, accounts are not available separately for the radio business and therefore the loss on account of the radio operations cannot be determined. The important point to emphasise is that all licnsees have made a loss and that in aggregate this loss is more than the existing license fee. Of even greater significance is the fact that out of the 108 frequencies put on bid only 21 are today operational and of these two have also given notice to close down. This clearly indicates that with the present levels of license fees it is unlikely that existing broadcasters will be in a position to continue their operations for a long time. The notice of closure given by a Private FM Radio Broadcaster has been given with the pre-condition that the notice would be effective if migration to a viable alternate license fee regime is not brought into force by 15th November 2005. Thus, the existing operators have started opting out of the Industry due to unsustainably heavy burden of License Fee."

13. Some time in December 2004 a few applications were filed for deferment of demands pursuant to the impugned demands issued by the Government requiring deposit of license fee. Upon those applications the TDSAT passed an order directing the licensees to deposit one-third of the amount within four weeks and also to keep the bank guarantees alive.

14. On 13.1.2005 all the petitioners moved applications for review/modifications made the TDSAT on 17.11.2004. The pleas taken in those applications were that after the passing of directions on 17.11.2004, there was a significant change in situation, since the TRAI had made its final recommendations. The applications also expressed that the condition required to be fulfillled by them imposed by the TDSAT, namely, depositing of 1/3 cast a heavy financial burden and that it had the effect of rendering the entire venture unviable. The application also relied upon observations of the TRAI to the effect that out of the 108 frequencies bid, only 21 continued to be in operation and of those, two had already given notice to close down. By the second impugned order dated 14.1.2005 the TDSAT rejected the applications so made and declined to extend the time.

15. Mr. Rajiv Nayyar, learned senior counsel and Mr. Gopal Jain, counsel appearing for the petitioners submit that the impugned demand as well as the impugned orders of the TDSAT require interference under Articles 226 and 227 of the Constitution of India. In support of their contentions it is submitted that :-

(a) the TRAI is an expert body under the Act. Its charter and mandate is to evaluate and balance various issues with regard to the matters referred to it and make recommendations to the Government. Being an expert body, empowered under a statute with a specific objective, its recommendations are binding, and have to ordinarily be accepted. Reliance has been placed, in this regard, on the decision of the Supreme Court in the decision reported as Cellular Operators Assn. of India v. Union of India,;

(b) in the present case, the TRAI had repeatedly determined that the existing licensing arrangements within the Industry called for substantial change. These determinations are embodied in the interim recommendations of April, 2004, the final recommendations dated 11.08.2004 and the recommendation returned to the Government after a reference made by the latter on 19.11.2004. Unless these determinations/recommendations are found to be substantially unacceptable, the Government is bound to follow them, by virtue of the fifth proviso to Section 11(1) of the Act. In this regard notice has been brought to certain portions in the interim recommendations dated 6.4.2004 as well as the final recommendations which have been extracted above;

(c) the TDSAT ought not to have, by the first impugned order, insisted upon deposit of further installments of the licensee in view of the final recommendations made by the TRAI;

(d) the impugned order of the TDSAT dated 14.1.2005 has dealt with only the issue of extension of time; it has not taken into consideration the other claims made in the applications for a direction to the Government to take a decision forthwith on the final recommendations of TRAI;

(e) the existing license conditions on the basis of which the petitioners are operating incorporate a stipulation that they would be subject to other laws. With the inclusion of the Industry in the regulatory mechanism of the Act, the licenses were subject to Section 11. Since TRAI expressly recommended that those license conditions ought not be enforced, or their conditions be insisted upon, such stipulations stood annulled/ superseded.

(f) The impugned demands, and the complete inaction of the Central Government betray an arbitrary approach to the matter, since the Government itself was alive to the felt need of the Industry for a change in the policy, which led to the Radio Licensing Committee, the eventual inclusion of the industry within the purview of the Act, and the recommendations of TRAI. The petitioners also submit that the Central Government ought to be directed to decide the matter finally, within a stipulated time frame.

16. Mr. Mehra for the respondents submits that the present petition ought not to be entertained. According to him all the issues concerning the legality, and enforceability of the impugned demands as well as the other disputes, are pending adjudication by the TDSAT, which has exclusive jurisdiction in that regard. He has raised strong objections with regard to the maintainability of the present petitions having regard to the fact that the order of TDSAT was made as on 17.11.2004. He submits that if the petitioners genuinely had any grievance they have ought to have immediately moved the TDSAT. The ought not to have kept quit and moved an application only on 13.1.2005 when they fully knew that the matter was listed on 2.2.2005 for consideration. He submits that nothing prevents the petitioners from approaching the TDSAT with the prayers sought herein in case they are aggrieved as far as deposit of any installment is concerned.

17. Learned Counsel for the respondent also relies upon Section 16(2)(f) of the Act. It is submitted that the application was really by way of review and was belated. He further states that having elected the remedy of review under Section 16, the petitioners cannot now complain against the order passed by TDSAT under Articles 226/227 of the Constitution.

18. It is also submitted that in terms of the Act the final authority in the issue lies with the Government. He submits that though TRAI is an expert body charged with the duty of looking into various technical issues with regard to the fields, services, or activities notified, yet the opinion or determinations of the TRAI are nevertheless recommendatory; the final say lies with the Government. It is also submitted that the petitioners are dis-entitled to reliefs in view of the fact that they are licensees under an existing regime; they bid for such licenses in terms that were acceptable to them. As long as this arrangement continues and is not displaced by another one, such licensees or petitioners cannot claim any rights, based on recommendations.

19. It is lastly submitted by learned counsel for the respondent that even after final recommendations of the TRAI doubts about the feasability of the migration package/arrangement proposed by TRAI can still exist, and that in such eventuality, it would not be appropriate for the court to interdict the Government.

20. The first limb of discussion in the present proceedings has to center round the need, to judicially review the decision of the Central Government to issue the impugned demand letters, and its action (or inaction, as complained of by petitioners) in regard to the TRAI's final recommendations. Here, the judicial review sought is in respect of the administrative action of the Central Government. The ancillary issue is the enforcement of recommendations of TRAI. The jurisdiction under Article 226 therefore, concerns the correctness of the decision making process, rather than the merits of the decision. The administrative or statutory action of the executive government can be interfered with if it is vitiated by mala fides, illegality, Wednesbury unreasonableness, or exercise of power/ refraining from exercise of power, for purposes other than those authorized by law. The scope of such judicial review has been summarized in Tata Cellular -vs-Union of India . Relevant portions of that judgment are extracted as follows:

"(1) The modern trend points to judicial restraint in administrative action.

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible...    ...    ...
 

(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
 

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
 

More recently, in Indian Rly. Construction Co. Ltd. v. Ajay Kumar, it was held that: 

"One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to the broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. (See State of U.P. v. Renusagar Power Co. 1) At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn., at pp. 285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarized as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires."

21. On the second limb, namely the power of the court under Article 226/227 in relation to the orders of TDSAT, it is necessary to recapitulate the law. Authorities abound on the point. While exercising the power of judicial review or superintendence over tribunals/subordinate Courts, under Articles 226 or under Article 227 of the Constitution, the Court has a limited jurisdiction. After considering all major decisions outlining the powers of High Courts, under Articles 226 and 227 of the Constitution of India, (including judgments such as L. Chandra Kumar v. Union of India ; Chandrasekhar Singh v. Siya Ram Singh , Hari Vishnu Kamath v. Ahmad Ishaque and T.C. Basappa v. T. Nagappa, the Supreme Court restated the law, inter alia, as follows, in Surya Dev Rai v. Ram Chander Rai,:

"(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."

22. It is therefore clear, that a tribunal's orders or determinations ought to be interdicted where the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and a grave injustice or gross failure of justice has occasioned.

23. As far as the present controversies are concerned, the relevant provisions, in my opinion are Sections 11,16 and 25 of the Act. The TRAI, is established under Section 3. It is a multi-member authority drawn from experts having special knowledge in the fields of telecommunications, industry, finance, accountancy, management, law, or consumer affairs, as per the mandate of Section 4. Section 11 delineates its functions. Subsection (1) (a) empowers TRAI to either suo motu, or on the request of a licensor, make recommendations in respect of various matters. These include, inter alia, the need and timing for introduction of a new service provider (sub-clause(i)) and the terms and conditions of license to a service provider [sub-clause (ii)]. Subsection (1)(d) and the Provisos to Sub-section (1) are extracted below:

(d) perform such other functions including such administrative and financial functions as may be entrusted to it by the Central Government or as may be necessary to carry out the provisions of this Act;

Provided that the recommendations of the Authority specified in clause (a) of this sub-section shall not be binding upon the Central Government:

Provided further that the Central Government shall seek the recommendations of the Authority in respect of the matters specified in sub-clauses(i)and (ii) of clause (a) of this sub-section in respect of a new license to be issued to a service provider and the Authority shall forward its recommendations within a period of sixty days from the date on which the Government sought the recommendations:

Provided also that the Authority may request the Central Government to furnish such information or documents as may be necessary for the purpose of making recommendations under sub-clauses (i) and (ii) of clause (a) of this sub-section and that Government shall supply such information within a period of seven days from receipt of such request:

Provided also that the Central Government may issue a license to a service provider if no recommendations are received from the Authority within the period specified in the second proviso or within such period as may be mutually agreed upon between the Central Government and the Authority:

Provided also that if the Central Government having considered that recommendation of the Authority, comes to a prima facie conclusion that such recommendation cannot be accepted or needs modifications, it shall refer the recommendations back to the Authority for its reconsideration, and the Authority may within fifteen days from the date of receipt of such reference, forward to the Central Government its recommendation after considering the reference made by that Government. After receipt of further recommendation if any, the Central Government shall take a final decision."

24. The TRAI, is empowered to examine the entire gamut or range of issues with regard to any particular service; for that purpose it can call for information or conduct investigations etc. in terms of Section 12; it can even issue directions to various service providers and exercise other powers. It is to be noted that of the authority of the TRAI and the entire procedure for making recommendations to the Government is contained in Section 11. In terms of proviso to sub section (1) to Section 11, the recommendations are expressed to be not binding upon the Central Government in regard to matters enumerated under clause (a).

25. The fifth proviso to Section 11(1), which has been relied upon by the petitioners, states that the Central Government can refer back a recommendation made by the TRAI, to it. TRAI has to reconsider the reference and send further recommendations to the Government. The receipt of these, further recommendations, puts an end to the process of consultation between the TRAI and the Central Government. The Central Government, then has to take a final decision. One more provision, to my mind, is indicative though not conclusive on the issue of the dispersion of policy making powers, viz Section 25, particularly sub-section (2). The TRAI as per this provision is under a duty to defer to the directions of the Central Government on issues of policy.

26. Section 14 establishes the TDSAT. It is headed by a person who is, (or was) a Supreme Court judge, or Chief Justice of a High Court. Its members are drawn from persons holding, or who had held the rank of Secretary to Government of India, or are experts in the field of technology, telecommunication, industry, commerce or administration. It is a part of the regulatory regime under the Act; it has wide appellate powers, and is entrusted with the task of dispute resolution of diverse nature. Section 16 delineates the powers of the TDSAT. Sub-section (2)(f) of that provision empowers the TRAI to inter alia, exercise the power of review.

27. The Act fills a regulatory space that had hitherto not existed. The creation of TRAI, composed of experts, its evaluation of various materials and issues, the review of such recommendations by the Government and a decision on them can and have led to disputes. Such disputes, have been dealt with under the framework of the Act. Section 14(a)(i) indicates that the TDSAT can adjudicate upon disputes between the licensor or a licensee precisely the kind of dispute which this Court is confronted. The powers of TDSAT have described as appellate, not as those of a superintending body, as per the judgment of the Supreme Court. Such appellate power, extends to a close examination of all the factual aspects in a given matter. In Cellular Operators Assn. of India v. Union of India,, the Supreme Court, while examining the scheme of the Act, and the powers of the TDSAT, held that:

"Having regard to the very purpose and object for which the Appellate Tribunal was constituted and having examined the different provisions contained in Chapter IV, more particularly, the provision dealing with ousting the jurisdiction of the civil court in relation to any matter which the Appellate Tribunal is empowered by or under the Act, as contained in Section 15, we have no hesitation in coming to the conclusion that the power of the Appellate Tribunal is quite wide, as has been indicated in the statute itself and the decisions of this Court dealing with the power of a court, exercising appellate power or original power, will have no application for limiting the jurisdiction of the Appellate Tribunal under the Act. Since the Tribunal is the original authority to adjudicate any dispute between a licensor and a licensee or between two or more service providers or between a service provider and a group of consumers and since the Tribunal has to hear and dispose of appeals against the directions, decisions or order of TRAI, it is difficult for us to import the self-contained restrictions and limitations of a court under the judge-made law to which reference has already been made and reliance was placed by the learned Attorney-General. By saying so, we may not be understood to mean that the Appellate Tribunal while exercising power under Section 14 of the Act, will not give due weight to the recommendations or the decisions of an expert body like TRAI or in the case in hand, GOT-IT, which was specifically constituted by the Prime Minister for redressing the grievances of the cellular operators. We would, therefore, answer the question of jurisdiction of the Appellate Tribunal by holding that the said Tribunal has the power to adjudicate any dispute between the persons enumerated in clause (a) of Section 14 and if the dispute is in relation to a decision taken by the Government, as in the case in hand, due weight has to be attached both to the recommendations of TRAI which consists of an expert body as well as to the recommendations of GOT-IT, a committee of eminent experts from different fields of life, which had been constituted by the Prime Minister."

28. With the above understanding I proceed now to consider the grievance of the petitioner. The recommendations of the TRAI have undoubtedly been made. The first final recommendation was made in August 2004. This was sent back two months later and the final recommendation after considering the queries of the Government were given by the TRAI on 19.11.2004. In this background and also having regard to the fact that various issues highlighted in the proceedings are also concurrently seized of by TDSAT would it be appropriate to entertain the present petition. As stated earlier, the decision making process is still under way. The petitioner no doubt contended that there has been a long and inordinate delay with regard to the consideration of the TRAI. However, the involvement of this Court by way of expressing support one way or the other to the TRAI's recommendations or evaluating the opinions of TRAI would be, in my opinion an unjustified intrusion into the decision making process. The grievance of the petitioner is that the final decision of the Government appears to be put on hold; they would suffer irrevocably and some of them may even shut down the business. In this regard, the submission of the petitioner is that the recommendations/decisions of expert bodies such as TRAI have to be accepted by the Government. In the present case the grievance is that in spite of the various issues having been gone into, and recommendations being made on separate occasions the Government is dragging its feet; that in the absence of any justifiable reason for the withholding approval of such recommendations, the recommendations should be given effect to, or at least, a direction to take a decision in the matter ought to be taken. It is no doubt true that the Courts in exercise of their judicial review defer to the opinion of expert bodies such as TRAI. There is a considerable judicial body to that end. Likewise, the Supreme Court has in the Cellular Operators' decision (supra) indicated that ordinarily the decision of TRAI, an expert body, ought to be given due weight and consideration. However, the position in this regard, in this case to my mind is slightly different. The stage here is not one of a final decision on technical issues; the subject matter of the disputes which are pending in these proceedings are at stage when the decision making process itself is incomplete. In other words, till the recommendations of the TRAI are either accepted in full, modified or turned down as the case may be, there is no final decision in the matter. The Central Government, in other words, at this stage has an entire range of options in regard to the final decision. Such range of options (of the Central Government, the decision maker) imply the fullness of powers to decide one way or the other. In these circumstances, a direction to follow the recommendations of TRAI, or even suspension of the obligation of paying license fee, in exercise of jurisdiction under Article 226, would amount to encroachment on the powers of the Central Government under the fifth proviso to Section 11. Looked at from another angle, such a direction would amount to enforcement of a recommendation, in an ongoing decision making process- something clearly beyond the powers of judicial review. As far as quashing the impugned demands is concerned, that relief is being agitated before the TDSAT. The petitioners cannot, to my mind, claim the same reliefs in two separate proceedings.

29. As regards the issue of indicating a time frame, or requiring the Central Government to decide finally in regard to the policy within a time bound manner, the correct approach, in my opinion, is to see whether the statute itself obliges the authorities to take a decision within a time frame. At least two provisos to Section 11(1) indicate time frames; however, in respect of Proviso to Section 11, no such time frame is indicated. I do not want to delve deeper into this issue, because administrative inaction in some cases can and does lead to grave wrong. For the purpose of this petition, I am satisfied that in the absence of a time frame for taking a final decision on the recommendations of TRAI, the Central Government is bound to decide the issues in question within a time frame having regard to the overall objectives of its policies, and the objectives underlying the Act. Since it has been submitted that the recommendations have the effect of impacting decision on other issues, and involve five ministries, any direction imposing a time limit, at least under Article 226 is not called for. There is yet one more reason to decline an examination of the issues with regard to enforceability of the TRAI recommendations at this stage, apart from the fact that the court would be embroiling itself in the thicket of decision making. This court, under Article 226, lacks expertise. The approach, in such cases, indicated through various judgments, of the Supreme Court, when issues relating to costing, the evaluation economic matters and fixation of tariff etc arose, has been that the power under Section 226 are undoubtedly wide but have to be used sparingly; the rationale for this view the Court lacks the wherewithal and expertise to embark on an enquiry into merits of various technical and financial issues. This is best reflected in the following view of a Constitution Bench in Shri Sitaram Sugar Co. Ltd. v. Union of India, :

"Judicial review is not concerned with matters of economic policy. The court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The court does not supplant the "feel of the expert" by its own views."

However, this does not preclude an examination of the issue by TDSAT.

30. The powers of the Court under Articles 226 & 227 are undoubtedly plenary. In view of various the authorities, this power extends to the exercise of powers, and examination of orders of TDSAT. However, the issue here is whether its impugned orders are contrary to law, or would lead to manifest failure of justice. The petitioners have stated that both the orders do not contain reasons. It has been urged that the TDSAT at least ought to have given a detailed consideration to their grievance, in view of the changed situation arising after the final recommendations of TRAI, which admittedly were given on 19th November, 2004, after the first impugned order. I am not persuaded to take that view. The TDSAT is seized of the issue with regard to the licensing, and the propriety of the impugned demands. In the line of authorities under the Act, it is tribunal empowered to decide on facts and law. When it passed the first order, permitting deposit of only one-third of the license fee, it had the benefit of the interim recommendations of TRAI. When it passed the first impugned order, it had the benefit of the final recommendations dated 11.8.2004. That recommendation is not substantially different from the final recommendation made by the TRAI, on 19th November, 2004. Besides, the first order passed in May, 2004 is a detailed speaking order. I cannot therefore conclude that the impugned orders are vitiated or call for interference. Similarly, the contention that the TDSAT was bound to give directions regarding relief, having regard to the fifth proviso to Section 11, and therefore its orders require interference, is devoid of merit, in these proceedings.

31. The above discussion on whether to interfere with the order declining relief of extension of time or other reliefs sought for in the applications made on 13.01.05 by the petitioners herein to the TDSAT ought to have ordinarily concluded with the above conclusions. However, since counsel for the petitioners had relied upon certain figures to press home the point that grave prejudice would be caused, I feel some an examination of that issue is called for. The final recommendations returned by the TRAI on 19.11.2004 to the Government indicate that in the case of Music Broadcasting accounts were not available for separate licenses. In case of some parties (who are not before this Court) accounts were not available separately and loss of such operations could not be determined. The chart relied upon (at page 337), form part of first recommendation dated 11.10.2004 also does not, to my mind, warrant any inference of such extreme loss or hardship, as is contended. A comparison of the relative position as between 2002-2003 and 2003-2004 shows that the total revenue had increased more that two-fold; the total expenditure undoubtedly had also increased but notably the total figure regarding level of losses had not increased significantly. I am unable, therefore, to conclude on the basis of materials shown that the view taken by the TDSAT would lead to manifest injustice or irrevocable prejudice so as to require interference, under Articles 226/227 of the Constitution of India.

32. In the view of my conclusions in the preceding paragraphs I am of the opinion that the present petition cannot be entertained. However, it is clarified that none of the observations contained in this judgment shall be construed as an expression on merits either as far as the Government or as far the TDSAT is concerned, nor conclude the issues. It is open to the petitioners to move an appropriate petition or application before the TDSAT in regard to any of the issues, including the prayer for a direction to the Government. Any application made by the petitioners would be dealt with in accordance with law on its own merits.

33. In view of the above, the petitions and interlocutory applications are dismissed with no orders as to costs. dusty.