Delhi High Court
Syniverse Technologies (India) ... vs Telecom Regulatory Authority Of ... on 3 May, 2019
$~28 & 1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 3rd May, 2019
+ W.P.(C) 1507/2018
SYNIVERSE TECHNOLOGIES (INDIA) PVT. LTD. ..... Petitioner
versus
TELECOM REGULATORY AUTHORITY
OF INDIA AND ANR. ..... Respondents
+ W.P.(C) 1508/2018
M/S MNP INDERCONNECTION TELECOM SOLUTIONS
INDIA PRIVATE LIMITED ..... Petitioner
versus
TELECOM REGULATORY AUTHORITY
OF INDIA AND ANR. ..... Respondents
Present: Mr.Dushyant Dave, Sr. Adv. with Mr.Vishal Binod,
Ms.Samykya Mukku & Mr. Amir Nabi, Advs. for the
Petitioner in W.P.(C) 1507/2018.
Mr.Meet Malhotra, Sr.Advocate with Mr.Neerav Merchant,
Ms.Ujjal Banerjee & Mr.Akash Khurana, Advocates for the
Petitioner in W.P.(C) 1508/2018.
Mr. Vinod Diwakar, CGSC with Mr.Sayandeep Pahari, Adv.
for UOI.
Mr.Ritin Rai, Sr. Adv. with Mr.K.R. Sasi Prabhu, Mr. Hiten
Sampath, Mr.Biju P. & Mr. Aditya Shandilya, Advs. for the
Review Petitioner/ Reliance Jio Infocomm Limited.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE PRATEEK JALAN
S. RAVINDRA BHAT, J. (OPEN COURT)
%
Review Petition No. 135/2019 & CM APPL. Nos.15939-15941/2019 &
15980/2019 in W.P.(C) 1507/2018
Review Petition No.138/2019 & CM APPL. 15945/2019 in
W.P.(C) 1508/2018
1. The review petitioner, a third party, seeks review of the judgment of
this Court disposing of W.P.(C) 1507-1508/2018 by the judgment dated
08.03.2019.
2. Two grounds were primarily urged - first, that the third party
interests were likely to be affected if the claims urged by them were not
accepted. Elaborating upon this, Mr.Ramji Srinivasan, learned Senior
Counsel, submitted that one of the writ petitioners (Syniverse) was guilty of
suppresio veri and suggestio falsi. For this purpose, learned counsel relied
upon certain communications during the consultative process, held by the
Telecom Regulatory Authority of India [hereinafter referred to as "TRAI"],
to highlight that the Per Port Transaction Charges [hereinafter referred to as
"PPT Charges"], which the petitioner ultimately claimed in these
proceedings, was conceded by them to be less than ₹19.00 provided in the
unamended Regulations. In the case of one petitioner, the per port cost was
admittedly not more than ₹11.00 for the year 2016-2017. [The other writ
petitioner claimed a cost of ₹14.00 per porting in its submissions to TRAI
which were placed on record.] It was, secondly urged that in somewhat
similar circumstances, the Madras High Court in its judgment reported as
„Tata Communications Ltd. & Anr. Vs. Telecom Regulatory Authority of
India' [W.A.Nos.283 and 285/2017, decided on 02.07.2018], quashed the
Regulations in regard to the International Telecommunication Cable
Landing Stations Access Facilitation Charges and Co-location Charges,
dated 21.12.2012, and at the same time directed TRAI to strictly follow the
procedure for subordinate legislation, and re-work the Regulations within
six months. Mr.Srinivasan urged that a similar direction be issued, for
TRAI to rework the PPT Charges for the period the Amendment was in
force.
3. The review petitioner urged that the directions of the Madras High
Court were upheld by the Supreme Court in its order in Reliance
Communications Ltd. vs. Tata Communications Ltd. & Ors., [SLP Nos.
23351-23352/2018, decided on 08.10.2018].
4. The writ petitioner/non-applicant, appearing on advance notice, on
whose behalf Mr. Dushyant Dave, learned Senior Counsel appeared,
pointed out that the claim of suppression and the interested third party being
kept away from the proceedings, is incorrect. On this aspect, it is brought
to the notice of the Court that in several invoices and related
communications, the writ petitioner/Mobile Number Portability Service
Provider [hereinafter referred to as "MNP Service Provider"] had
consistently drawn to the notice of the Telecom Service Provider ("TSP")
[including the review petitioner] the fact about the pendency of these
proceedings, and that the amounts claimed in the invoices were subjudice,
being subject matter of the writ petition pending then. It is also urged that
the judgment does not require review or clarification and that, more
importantly, TRAI does not possess any authority or power to frame
retrospective regulations. It is urged that the document relied upon by the
review petitioner [e-mail dated 29.12.2017] was indeed made part of the
record, along with the synopsis filed by the TRAI and it was relied upon by
the Court. Learned Senior Counsel emphasised that the rate, i.e. ₹11.00 for
PPT charges was provisional.
5. This Court is of the opinion that the complaint of the review
petitioner about unfairly being kept out of the proceedings is not borne out.
The invoices that are part of the record - as enclosures to the reply to the
review petition, clearly shows that the writ petitioner/MNP Service
Provider had repeatedly revealed to the TSPs about the pendency of these
proceedings with regard to the claim of ₹19.00 PPT Charge. The review
petitioner was thus on notice that the PPT Charges fixed at ₹4.00 was under
challenge. It may be noted that the review petitioner did not choose to
intervene or seek impleadment in the proceedings.
6. As far as the grievance with respect to this Court‟s non-consideration
of the MNP Service Providers‟ admitted cost of ₹11.00 is concerned, a
document which is part of the synopsis, placed on record by TRAI in the
main proceedings, reveals that the amount claimed by one of the MNP
Service Providers was provisional. In any case, this correspondence was
before TRAI, which took cognizance of it in its consultative process.
7. As far as the second grievance with respect to the lack of any
consequential directions go, this Court had merely set aside the Amendment
to the extent it imposed ₹4.00 as PPT Charge, having regard to the nature
of consultative process and all the other findings which it recorded. The
Division Bench of the Madras High Court, expressly permitted TRAI to
proceed and frame regulations in accordance with law. The Supreme Court
has endorsed that view. This, in our opinion, does not in any manner imply
that the Court authorized TRAI to frame retrospective regulations of the
kind that the Review Petitioner is seeking.
8. In view of the above discussion, no clarification or review of the
judgment is necessary. The review petition is accordingly dismissed.
S. RAVINDRA BHAT, J
PRATEEK JALAN, J
MAY 03, 2019
'hkaur/pv'
