Ministry Of Information And ... vs Association Of Radio Operators Of ...
2015 Latest Caselaw 8855 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Date of decision: November 30, 2015
    +              W.P.(C) 11034/2015, CAV 1220-1222/2015 & CM
                               Nos.28485-28487/2015

MINISTRY OF INFORMATION AND BROADCASTING
                                           .... Petitioner
                  Through: Mr. Sanjeev Narula, CGSC
                           with Ms. Meha Rashmi, Mr.
                           Ajay Kalra & Mr. Anshuman
                           Upadhyay, Advocates
                  Versus
ASSOCIATION OF RADIO OPERATORS OF INDIA AND ORS
                                        ..... Respondent
                  Through: Mr.Amit Sibal, Sr. Advocate
                           with Mr.Abhishek Malhotra,
                           Mr.Angad Dugal,
                           Mr.Kaushik Moitra,
                           Mr.Debashis Mukherjee,
                           Advocates
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

CAV 1220-1222/2015

Learned counsel for the caveators has put in appearance. The caveats stand discharged.

CM No.28485/2015

Exemption allowed subject to all just exceptions. Application stands disposed of.

W.P.(C) 11034/2015

1. This writ petition has been filed by the Ministry of Information and

Broadcasting, challenging the order dated October 28, 2015 on the prayer

of interim relief sought by the respondents herein. Vide the said order, the

Telecom Disputes Settlement and Appellate Tribunal (Tribunal, in short),

has passed the following order:

"On hearing counsel for the parties, it is directed, as an interim measure, that in such of the reference cities where there was no successful bid, for taking the average increase in Phase III bids in that city, the respondent shall take the reserve price as the bid amount for computation of the One Time Non-refundable Migration Fee (OTNMF). The petitioner (the licence holders being represented through it) shall pay the balance amount of OTNMF within three working days from the date of receipt of the intimation based on computation as directed above.

It is, however, made clear that in case the petition fails, the petitioner shall have to pay the remaining balance amount of the OTNMF along with interest and within such time, as may be directed by the Tribunal".

2. It is the submission of Mr. Sanjeev Narula, learned counsel for the

petitioner, that the order of the Tribunal is contrary to the expressed

provisions of notification dated January 21, 2015 and to the Non-

refundable One Time Migration Fee (NOTMF, in short) as prescribed by

the petitioner in its order dated September 24, 2015. According to him,

such an order at the interim stage when the Tribunal was yet to decide the

dispute raised by the respondents in their petition is untenable. He has

drawn my attention to the order dated January 21, 2015 (page 140), more

specifically, para 31, which relates to migration to Phase III, to contend

that it provides for a formula for calculation of NOTMF in clear terms that

"highest bid of the target Group X cities increased by the average increase

in auction prices in Group Z cities" i.e. average increase in auction price

has to be taken into consideration and accordingly, if there is no discovery

of auction price due to auctions being unsuccessful, the increase cannot be

considered as zero, which is the assumption of the respondents, which

assumption is perverse and devoid of merit. He has explained me, the

procedure/manner to workout the NOTMF in terms of the policy. He

would also state the decisions on NOTMF for Phase III, were based on

due deliberations and consultations with TRAI and the TRAI being an

expert body, the Tribunal could not have interfered with the same. That

apart, it is his submission that after the NOTMF was notified on

September 24, 2015, the respondents had requested the petitioner for

extending deadline for submission of NOTMF, which request was

acceded to vide letter dated September 29, 2015 and October 6, 2015. He

would also state, that the comments of the TRAI were also sought for by

the petitioner vide its letter dated October 8, 2015. The TRAI vide its

letter dated October 26, 2015 observed that the methodology adopted by

the petitioner in calculation of NOTMF is correct and in accordance with

its earlier recommendation dated February 21, 2014 and the assumptions

made by the respondents in their representations are not tenable. That

apart, he would state, the order does not give reasons for granting the

interim relief. Further, the balance of convenience lies in favour of the

petitioner herein as the petitioner herein is a Department of Government

of India and, if the NOTMF, as per the order dated January 21, 2015 and

the order dated September 24, 2015 was directed to be paid by the

Tribunal, by the respondents to the petitioner, the money was secured.

The NOTMF would have been subject to the outcome of the petition

before the Tribunal. The concept of prescribing the formula for NOTMF

was for maximisation of revenue and that could not have been interfered

with by the Tribunal at interim stage. He would rely upon the judgments

of the Supreme Court in the case reported as (2009) 10 SCC 388 Zenit

Mataplast P. Ltd. Vs. State of Maharashtra and Ors. and 2015 (6)

SCALE 479 Bharti Airtel Ltd. and Ors. Vs. Union of India (UOI) and

Ors. and the judgment of the Patna High Court in the case reported as

Satyendra Singh and Ors. Vs. Sanjay Kumar and Ors., LPA No. 979 of

2000, decided on October 18, 2000 in support of his contention with

regard to the parameters which weighed with the Court for granting the

interim relief.

3. On the other hand, Mr. Amit Sibal, learned Senior Counsel

appearing for the respondents would submit that the petitioner cannot be

said to be aggrieved by the interim order passed by the Tribunal inasmuch

the order of the Tribunal was dated October 28, 2015, whereas the petition

has been filed four days short of one month from the said date. He states

that Tribunal had granted time to the petitioner herein to file reply by

November 13, 2015 and had fixed the petition at the top of the list on

November 26, 2015. According to him, instead of filing a reply, the

petitioner took time to file writ petition. Otherwise, had they filed a reply

before the Tribunal, within the time granted, the matter could have been

heard on November 26, 2015 itself. He states, on November 26, 2015,

further time was sought for by the petitioner to file reply. He would also

state that the interim order was in the nature of pro-term measure as it is

the case of the respondents that the formula/NOTMF is not correct.

According to him, the Tribunal without even, agreeing with the case of

the respondents, had directed the petitioner to rework the NOTMF in such

of the reference cities, where there was no successful bid for taking

average increase in phase III by taking reserve price as the bid amount. He

would also state, that, no prejudice would be caused to the petitioner as

the Tribunal has protected the interest of the petitioner by observing, that

in case the respondents fails, the respondents shall have to pay the

remaining balance of the NOTMF along with interest and within such

time, as may be, directed by the Tribunal. According to him, the Tribunal

also being an expert Tribunal, can exercise its appellate jurisdiction, both

on facts as well as in law, over a decision or order/direction of the

Authority and its power to examine the correctness, legality and propriety

of the order passed by the Authority, as also in relation to the dispute,

must be held to be a wide one. He states, that, in terms of the interim

order, the proceedings before the Tribunal has crossed interim stage and

are at final stage for hearing and arguments could have been heard by the

Tribunal on November 26, 2015 when the date was fixed. He would also

state that the respondents had never sought extension of time, for

depositing NOTMF, but, had pointed out errors in NOTMF, and instead

of correcting the errors, the respondents had extended the time. He states,

that the issue of NOTMP is still open and would be gone into by the

Tribunal and the order should not be disturbed. He would rely upon the

following judgments in support of his contention:

(i) 146 (2008) Delhi Law Times 230 Star India P. Ltd. Vs. Life Style

Communication P. Ltd.

(ii) (2003) 3 SCC 186 Cellular Operators Association of India and

Ors. Vs. Union of India and Ors.

4. Having heard the learned counsel for the parties, as is noted from

the record, the petition was filed before the Tribunal on October 23, 2015.

The same appears to have been listed for the first time on October 28,

2015 when the Tribunal by admitting the petition and granting time to the

parties to complete their pleadings passed the order by which the

petitioner is aggrieved. The writ petition was filed on November 24, 2015.

It is noted from the impugned order, the petitioner herein was required to

file a reply by November 13, 2015 and the respondents' rejoinder by

November 20, 2015 and the case was to be listed for hearing on top of the

list on November 26, 2015. As conceded by the learned counsel for the

petitioner, reply has not been filed till date. Had the petitioner filed the

reply before the Tribunal on or before the date stipulated, the matter could

have been heard and decided by the Tribunal on November 26, 2015

itself. Surely, the facts as noted above are sufficient to dismiss the

petition which was filed on November 24, 2015, two days before the date

of hearing before the Tribunal.

5. Further, it is not a case of the petitioner that the Tribunal has

decided the issue finally. The parties are yet to file their pleadings. Most

of the submissions made by the learned counsel for the parties are on the

merit of the dispute pending adjudication before the Tribunal. I refrain

from commenting on the same as anything said would have a bearing on

the dispute before the Tribunal. It is also not a case where the Tribunal

has, by granting an interim measure, not protected the interest of the

petitioner. It has protected the interest by observing that if the petition

fails, the respondents would pay the remaining balance amount of the

NOTMF along with the interest and within such time, as may be directed

by the Tribunal.

6. Insofar as the judgments relied upon by the learned counsel for the

petitioner are concerned, in Zenit Mataplast P. Ltd. (supra), the Supreme

Court, by relying upon its own judgment in Colgate Palmolive (India)

Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105 observed that the

considerations which ought to weigh with the Court hearing the

application or petition for the grant of injunctions are as below:

(i)     Extent of damages being an adequate remedy

(ii)    Protect the plaintiff's interest for violation of his rights though

however having regard to the injury that may be suffered by the

defendants by reason therefore;

(iii) The Court while dealing with the matter ought not to ignore the

factum of strength of one party's case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of

injunction but on the facts and circumstances of each case - the relief

being kept flexible;

(v) The issue is to be looked from the point of view as to whether on

refusal of the injunction the plaintiff would suffer irreparable loss and

injury keeping in view the strength of the parties case;

(vi) Balance of convenience or inconvenience ought to be considered as

an important requirement even if there is a serious question or prima facie

case in support of the grant;

(vii) Whether the grant or refusal of injunction will adversely affect the

interest of general public which can or cannot be compensated otherwise.

7. Insofar as the clauses (v) and (vi) cited above, and relied upon by

Mr. Narula are concerned, there is no dispute on the aforesaid

propositions. The plea of Mr. Narula that the Tribunal should have

allowed the respondents to pay the petitioner as per the order dated

January 21, 2015 and order dated September 24, 2015 and should have

made the NOTMF, subject to the outcome of the petition before the

Tribunal, is a plausible view, but, the impugned order also reveals the

right earnest of the Tribunal, to hear the matter. The petitioner should

availed the opportunity and argue the matter before the Tribunal on

November 26, 2015, rather than filing this petition on November 24,

2015.

8. Similarly, the reliance placed by Mr. Narula in the case of Bharti

Airtel Ltd. and Ors. (supra) (in paras 76 and 77 of the judgment),

primarily relates to the recommendations made by the TRAI and their

binding nature and also on the decisions of the Government, which in

fact, results in huge inflow of revenue, such a decision cannot be said to

be totally irrational or irrelevant consideration in the context of spectrum

management. Suffice to state, the petitioner shall be within its right to

argue these aspects before the Tribunal at the time of final hearing to

impress upon the Tribunal about the justification of its decision.

9. Insofar as the judgment in the case of Satyendra Singh and Ors.

(supra), wherein the reliance has been placed by the learned counsel for

the petitioner in para 12, which reads as under, there is no dispute on the

below mentioned proposition. Surely, such a decision would help the

petitioner while arguing the case finally.

"12. Prescribing qualification for a particular post by the competent authority is a policy decision. The Government frames a policy after taking into consideration the number of facts and circumstances, expert opinion and other relevant consideration. The

power of judicial review in such matter is limited. The Court can interfere only when the authorities have acted arbitrarily or in violation of the statutory or constitutional provisions. The Court does not sit as an appellate forum in disguise over the policy matter. It has no power to re- frame the policy matter and in case the policy matter is found suffering from any legal infirmities as indicated above, then the same is to be struck down and the matter is sent to the authority to consider the policy matter in accordance with the law laid down. If the rules have been framed prescribing the qualification for a particular post, the Court has no power to re-frame the rules or supplement the rule by adding additional qualification for the simple reason that is a function of the appointing authority and in the case of any legal lacuna the Court can only direct the appointing authority to consider the matter on the basis of the expert opinion and other relevant consideration. The Court cannot on the basis of the documents appended with the affidavit determine the equivalence or addition of qualification in the recruitment rules".

10. That apart, insofar as the judgments relied upon by Mr. Sibal are

concerned, in Star India P. Ltd. (supra), this Court, has in para 17 held as

under:

"17. The Tribunal is invested with the power to adjudicate disputes, as an exclusive quasi judicial body. It has

gathered some institutional expertise; indeed its membership is also geared to facilitate the specialized dispute adjudication which it has to engage in. Judicial review, under Article 226, has to be understood within the overall structural parameters of its original dispute resolving task. If one keeps in mind the circumstance that the impugned order is an interim one, the jurisdiction of this Court gets even more circumscribed, as it were. Commenting on such restricted jurisdiction, the Supreme Court held, in Surya Dev Rai v. Ram Chander Rai as follows:

(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.

The TDSAT's orders can be interfered with where they disclose manifest errors, which are 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 been occasioned. On an application of these parameters, this Court is unable to discern any such manifest error of law, or ignorance of, or utter disregard of provisions of law. The petitioner has also not been able to disclose any gross failure of justice".

11. In the case of Cellular Operators Association of India and Ors.

(supra), in para 31 and 42, Justice S.B.Sinha, concurring with Hon'ble the

Chief Justice, has stated as under:

"31. The rule as regard deference to expert bodies applies only in respect of a reviewing court and not to an expert tribunal. It may not be the function of a court exercising power of judicial review to act as a super-model as has been stated in Administrative Law by Bernard Schwartz, 3rd edition in para 10.1 at page 625; but the same would not be a case where an expert tribunal has been constituted only with a view to determine the correctness of an order passed by another expert body. The remedy under Section 14 of the Act is not a supervisory one. TDSAT's jurisdiction is not akin to a court issuing a writ of certiorari. The tribunal although is not a court, it has all the trappings of a Court. Its functions are judicial.

XXX XXX XXX

42. Sub-section (7) of Section 14A confers a wide jurisdiction upon the Tribunal. The Tribunal being an

expert body is entitled to exercise its appellate jurisdiction both on fact as also in law over a decision of order/decision/direction of the Authority. Its power to examine the correctness, legality or propriety of the order passed by the Authority as also in relation to the dispute must be held to be a wide one".

12. Noting the impugned order passed is an interim measure, wherein

the Tribunal has protected the interest of the petitioner, this Court is of the

view that it is not a case where this Court in the facts should exercise its

extraordinary jurisdiction under Article 226 of the Constitution of India

and interfere with the same. The writ petition is dismissed.

CM Nos.28486-28487/2015 (for stay and producing additional documents on record respectively)

In view of the order passed in the writ petition, the present

applications are disposed of as infructuous.

(V.KAMESWAR RAO) JUDGE NOVEMBER 30, 2015 akb