In the High Court of Judicature at Madras Dated:
26. 06.2013 Coram The Honourable Mrs.JUSTICE CHITRA VENKATARAMAN and The Honourable Ms.JUSTICE K.B.K.VASUKI Writ Appeal Nos.854 and 855 of 2013 & M.P.Nos.1 and 1 of 2013 Telecom Regulatory Authority of India, Mahanagar Door Sanchar Bhawan, Jawahar Lal Nehru Marg, Next to Dr.Zakir Hussian College, New Delhi 110 002 .... Appellant in the above W.As Vs. Bharti Airtel Ltd., rep. by its Legal Manager, Mr.Harish Rangarajan .... Respondent in W.A.No.854/2013 Tata Communications Ltd., Through Assistant Manager (HR) V.Geetha .... Respondent in W.A.No.855/2013 APPEALs under Clause 15 of the Letters Patent read with Article 226 of the Constitution of India against the order dated 03.04.2013 extending order dated 24.1.2013 made in M.P.No.2 of 2013 in W.P.No.1875 of 2013; dated 03.04.2013 extending order dated 21.2.2013 made in M.P.No.2 of 2013 in W.P.No.3652 of 2013. For Appellant: Mr.P.Wilson Additional Solicitor General of India II Assisted by Mr.M.Devendran, Standing counsel for TRAI For Respondent: Mr.P.S.Raman, S.C. For M/s.Satish Parasaran W.A.No.854/2013 Mr.R.Vijay Narayan, S.C. For Mr.K.Harisankar W.A.No.855/2013 ------------- C O M M O N
JUDGMENT
(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.) The above Writ appeals are preferred by the Telecom Regulatory Authority of India against the order passed by this Court, extending the order of interim stay originally granted by this Court in favour of the respondents herein.
2. It is seen from the order passed by this Court, which is now under challenge, that an order of interim stay was originally granted by this Court while ordering notice regarding admission returnable in two weeks. W.P.No.1875 of 2013, which relates to Writ Appeal No.855 of 2013, came up for admission before the learned single Judge on 24.01.2013, where notice regarding admission was ordered, directing the petitioner to send private notice to the respondent. This Court recorded the submission of the learned senior counsel appearing for the petitioner in W.P.No.1875 of 2013, that in the event of any amount payable by the petitioner, the petitioner was willing to make the payment. Recording the said undertaking, this Court granted an order of interim stay as prayed for. Subsequently, W.P.No.3652 of 2013 was filed, which is the subject matter of appeal in W.A.No.854 of 2013. Considering the identical issues raised therein, learned single Judge directed the matter to be posted along with W.P.No.1875 of 2013. An order of interim stay was also granted on 21.2.2013 and the matter was directed to be posted on 22.2.2013. It may be noted that the matters were listed on 22.2.2013 before the learned single Judge, who extended the order of interim stay and directed posting of the matters on 25.2.2013. Since apparently the matters were not listed, on a special mention made by the learned senior counsel in the Writ Petitions, interim stay was extended upto 12.3.2013 and the matter was again directed to be posted on 08.3.2013. Again, when the Writ Petitions, along with the stay petitions, were listed on 08.03.2013, on account of boycott by the advocates, at the request of the learned counsel appearing for the petitioners, the matters were directed to be listed on 25.3.2013 and the order of interim stay was again extended. Again, when the Writ Petitions along with M.Ps were listed on at 2.15 p.m. on 25.3.2013, 26.3.2013 and 26.3.2013 respectively, it is stated that arguments from the petitioners' side in the main Writ Petitions were heard and the matters were directed to be posted on 04.04.2013 at 2.15 p.m. and the stay granted was extended. In the meantime, impleading petitions were filed by BSNL, Association of Competitive Telecom Operators and Reliance Communications Ltd in M.P.Nos.3 to 6 of 2013. On 03.04.2013, as learned senior counsel appearing for the petitioners sought for time to file response to the impleading petition in M.P.No.6 of 2013, the matters were directed to be listed on 05.4.2013. When the matters were listed on 10.4.2013, at the request of the learned counsel appearing on either side, the matters were posted at 2.15 p.m. on 18.4.2013. It is stated that learned Solicitor General of India and the learned Senior Counsel, then representing the appellant herein, were present on the dates of hearing.
3. Since serious issues were raised by the learned Additional Solicitor General appearing for the appellant as regards the facts on the hearing of the main Writ Petition on the dates mentioned above, we called for the original bundle relating to the Writ Petitions as well as the cause list in respect of those dates. We find the following details as recorded in the order sheet: W.P.No.1875 of 2013 & M.P.No.2 of 2013 dated 24.01.2013 Notice regarding admission returnable in two weeks. Private notice is also permitted. Mr.C.S.Vaidyanathan, Learned Senior Counsel appearing for the petitioner submits that in the event of any amount payable by the petitioner, the petitioner will make the payment. Recording the said undertaking, there shall be an order of interim stay as prayed for. i. Issue Order Copy today ii.The order shall be communicated through wire at the cost of the petitioner. W.P.No.3652 of 2013 & W.P.No.1875 of 2013 & M.P.Nos.2 & 2 of 2013 dated 21.02.2013 Post this matter on 22.2.2013. In the meantime, there shall be an order of Interim Stay till then. Post this matter along with W.P.No.1875 of 2013 & M.P.No.3/13. W.P.No.3652/2013 & W.P.No.1875/2013 &M.P.Nos.2 & 2 of 2013 dated 22.2.2013 Post on 25.02.2013. Interim Order already granted by this Court is extended till then. W.P.No.3652/2013 & W.P.No.1875 of 2013 & M.P.Nos.2 & 2 of 2013 dated 01.03.2013 On special mention made today, the matter is posted to 08.03.2013 and the stay already granted by this Court is extended upto 12.03.2013. Call on 08.03.2013 W.P.No.3652/2013 & W.P.No.1875 of 2013 & M.P.Nos.2 & 2 of 2013 dated 08.03.2013 M.P.No.3 of 2013 in W.P.No.3652 of 2013 and M.P.No.4 of 2013 in W.P.No.1875 of 2013 were listed At the request of the learned Senior Counsel representing the Petitioner's counsel, as prayed, the matter to be posted on 25.03.2013. Accordingly, the matter is posted to 25.03.2013. Interim Order already granted by this Court is extended till then. W.P.Nos.3652 and 1875 of 2013 dated 25.03.2013 Impleading Petitions filed by BSNL, Association of Competitive Telecom Operators and Reliance Communications Ltd. were listed Adjourned to 26.03.2013 at 2.15 p.m. W.P.Nos.3652 and 1875 of 2013 dated 26.03.2013 Impleading Petitions were also listed Post on 04.04.2013 at 2.15 p.m. Interim Order already granted by this Court is extended till then. W.P.Nos.3652 and 1875 of 2013 dated 03.04.2013 Impleading Petitions were also listed The learned counsel appearing for the petitioner in both the Writ Petitions prays for time to file response to the impleading petition M.P.No.6 of 2013. Post on 05.04.2013 at 2.15 p.m. Interim Order already granted by this Court is extended till then. W.P.No.3652/2013 & W.P.No.1875 of 2013 & connected M.Ps. dated 10.04.2013 At request of the learned counsel on either side, post on 18.04.2013 at 2.15 p.m. W.A.Nos.854 & 855 of 2013 dated 17.4.2013 Mr.Sathish Parasaran, learned counsel takes notice for the respondent. Post on 22.4.2013 for filing counter. W.P.Nos.3652 & 1875 2013 and M.P.Nos.2 and 2 of 2013 dated 18.04.2013 Detailed order passed W.A.Nos.854 & 855 of 2013 dated 06.06.2013 Post tomorrow W.A.Nos.854 & 855 of 2013 dated 07.06.2013 Post on 10.6.2013 W.A.Nos.854 & 855 of 2013 dated 10.06.2013 Registry is directed to post these appeals (tomorrow (11.06.2013) before some other Division Bench where one ".of ". us (R.K.Agrawal, ACJ) is not a member, after obtaining administrative orders from the Hon'ble Acting Chief Justice. W.A.Nos.854 & 855 of 2013 dated 11.06.2013 Post on 14.6.2013 W.A.Nos.854 & 855 of 2013 dated 21.06.2013 Post on 24.06.2013 W.A.Nos.854 & 855 of 2013 dated 24.06.2013 Post on 25.6.2013 4. As is evident from the reading of the Order Sheet, we find that notice regarding admission was ordered in W.P.No.1875 of 2013 on 24.01.2013. As far as W.P.No.3652 of 2013 is concerned, the same was originally listed before the Division Bench on 18.2.2013, which directed the matter to be posted before the learned single Judge along with W.P.No.1875 of 2013. Thus, on 21.2.2013 W.P.No.3652 of 2013 was posted before the learned single Judge, who directed the matter to be listed on 22.2.2013 and in the meantime, granted interim stay till then. However, it may be noted that on 16.2.2013, the Writ Appellant had filed a counter to vacate the stay granted. As already noted, since only notice was ordered regarding admission, evidently, arguments went on since 25.3.2013, on the admission of the main Writ Petitions itself.
5. When the matter stood thus, we find from the documents placed before this Court, that Writ Appeals were filed by the respondent in the Writ Petitions - Telecom Regulatory Authority of India challenging the order of the learned single Judge dated 03.04.2013 extending the order dated 21.2.2013 in the case of W.A.No.854 of 2013 as against Bharti Airtel Limited and questioning the order of the learned single Judge dated 03.04.2013 extending the stay order passed by this Court dated 24.1.2013, in W.A.No.855 of 2013 as against TATA Communications Ltd.
6. The contentions of the appellant, as raised in the Writ Appeals filed on 16.4.2013, are that the order of ex parte stay of the Regulations granted by the learned single Judge virtually meant allowing of the Writ Petitions themselves. The appellant contends that given the presumption of constitutionality of the Regulations, the Court ought not to have granted the order of interim stay. Contending that the interim stay granted on 21.2.2013 and 24.1.2013, as the case may be, were through non-speaking orders, the Writ Appellant herein pointed out that when the vacate stay petitions were filed as early as 22.2.2013 and 18.02.2013 respectively as against the ex parte orders passed by this Court, instead of taking up the vacate stay petitions, learned single Judge proceeded to hear the main Writ Petitions themselves. Quoting Article 226(3) of the Constitution of India that where an application for vacate stay is filed and the same has not been disposed within a period of two weeks, stay would be deemed to have been automatically vacated, the appellant projected their grievance that the learned single Judge had not disposed of the applications for vacation of the stay, which would be in total violation of Article 226(3) of the Constitution of India; consequently, the stay order granted had become non-est as of today.
7. Contending that the various parameters for grant of interim orders had not been followed by the learned single Judge, learned Additional Solicitor General placed reliance on the decision reported in (1995) 3 SCC33(Mahadeo Shelke and Others V. Pune Municipal Corporation and another) that only in extreme cases, an order of stay could be granted; even then, the law laid down by the Apex Court in the decision reported in (1994) 4 SCC225(Morgan Stanley Mutual Fund V. Kartick Das) has to be necessarily kept in mind before granting any interim relief. He further contends that the order passed is certainly against the interests of the consumers; that allowing the Writ Petitioners to enjoy the benefit of stay would certainly go against the telecom policy of the appellant; consequently, the stay has to be vacated. He also contends that the appellant has the jurisdiction to regulate and specify the charges for cable landing stations under Section 36 read with Section 11(1)(b) (i), (ii), (iii) and (iv) of the Telecom Regulatory Authority of India Act, 1987. In the background of the above facts, when the Writ Petitioners/respondents in the Writ Appeals had had no grievance in the Telecom Regulatory Authority of India fixing the cable landing charges as early as 2007, it is not open to them to challenge the provisions as though the appellant lacked jurisdiction in specifying the charges to be charged by the Writ Petitioners from the access providers.
8. In support of the contentions taken, learned Additional Solicitor General placed reliance on the decision of the Apex Court reported in (2009) 17 SCC555(State of Uttar Pradesh & Others V. Sandeep Kumar Balmiki & Others). Touching on the principles as laid down in the decisions of the Apex Court, which ought to have been considered while granting the interim prayer for stay, he submitted that the Court should desist from granting such a relief, if the grant of interim relief would amount to granting the relief in the main Writ Petitions themselves and the parties must be directed to place their objections and then only, the same could be considered. In this connection, learned Additional Solicitor General placed reliance on the decisions reported in (2009) 17 SCC555(State of Uttar Pradesh & Others V. Sandeep Kumar Balmiki & Others); (2005) 9 SCC733(State of Uttar Pradesh & Others V. Ram Sukhi Devi and (1985) 1 SCC260(Asst. Collector of Central Excise V. Dunlop India Ltd. & Others). He also pointed out to the guidelines given in the decisions reported in (1985) 1 SCC260( Asst. Collector of Central Excise V. Dunlop India Ltd. & Others); (2000) 5 SCC57(Union of India V.Era Educational Trust & another) and (2002) 5 SCC760(Hindustan Petroleum Corp. Ltd. V. Sriman Narayanan & another), that unless the Writ Petitioners are in a position to show a prima facie case, balance of convenience and irreparable loss, there could be no automatic grant of stay, more so in the case of challenge to a Regulation. He further referred to the decisions reported in (2008) 5 SCC33(Hinsa Virodhak Sangh V. Mirzapur Moti Kuresh Jamat & Others); (2000) 5 SCC471(Bhavesh D. Parish and others V. Union of India and another); (1972) 1 SCC298(State of Madhya Pradesh & another V. Dadabhoy's Colliery Ltd. and another) and (2006) 4 SCC517(State of Tamil Nadu and another V. P.Krishnamoorthy and others), only to contend that when there is always a presumption in favour of constitutionality of a subordinate legislation and the burden is cast on the Writ Petitioners who challenged such a provision, Courts must desist from granting interim stay in such matters.
9. Contending that the Writ Appeals under Clause 15 of the Letters Patent are maintainable as against the interim order passed, he submitted that Writ Appeal is a continuation of jurisdiction under Article 226 of the Constitution of India; that even though Writ Appeal filed is under Clause 15 of the Letters Patent, intra-Court appeal could not be treated differently from that of the Writ Petition, more so in cases where an order of stay granted contained no reasons and the injury arising therefrom is severe. Thus, technicalities shall not stand in the way of entertaining Writ Appeals. Thus, the party who suffers injury by reason of a blanket stay, must necessarily have the remedy to set right the injury caused by preferring an appeal. In this connection, he placed reliance on the decision reported in 2007-2-L.W. 919 (Villupuram Market Committee and others V. K.Sekar) and an unreported decision dated 22.4.2013 in W.A.No.572 of 2013 (Union of India V. State of Tamil Nadu & Others) and contended that Writ Appeal, being a continuation of the original proceedings, there could be no impediment in entertaining the same.
10. Reiterating his contention that the Supreme Court had time and again deprecated the practice of granting interim relief in matters where there is a challenge to the Regulation, learned Additional Solicitor General placed reliance on the decision reported in (1995) 3 SCC257(Bank of Maharashtra V. Race Shipping & Transport Ltd. & another) and (2010) 4 SCC368(State Bank of Patiala & Others V. Vinesh Kumar Bhasin) and submitted that considering the injury caused by the grant of interim stay of Regulation, there could be no inhibition on the maintainability of the Writ Appeals as against the interim order passed.
11. He further placed reliance on the decisions reported in AIR1990Mad 62 (R.Kannan and others V. Indchem Electronics Ltd.); (2009) 9 SCC435(Prabhjot Singh Mand & Others V. Bhagwant Singh & Others); (2005) 5 SCC531(Achal Misra V. Rama Shanker Singh & Others); 2008 (4) CTC212(Emkay Exports V. Madhusudhan); (2009) 2 SCC784(Tamilnad Mercantile Bank Shareholders Welfare Assocition (2) V. S.C.Sekar & Others and (2006) 5 SCC399(Midnapore Peoples' Coop. Bank Ltd. & Others V.Chunilal Nanda & Others) and submitted that with the public injury writ large on account of the interim stay granted, the order merited to be vacated.
12. Explaining in detail as to the Regulatory Authority's jurisdiction as given under the provisions of the Telecom Regulatory Authority of India Act, 1987, learned Additional Solicitor General submitted that when the Writ Petitioners had not challenged the 2007 Regulation, but had submitted themselves to the rates fixed by the appellant herein, the grounds now taken as though TRAI had no authority to fix the rates, is totally contrary to their conduct. In the background of the public injury caused on the stay of the Regulation and the impact thereon on a common man's right to have access at formidable rates to the services from the access providers, he submitted that the stay granted be vacated. He further submitted that keeping in mind the growth of Telecom industry and its impact on the economic growth of the country, in public interest, the stay has to be vacated. Thus, the appellant prayed for setting aside of the interim stay order passed.
13. Countering the claim of the Writ Petitioners that fresh rates fixed in the year 2012 were without any transparency or deliberations, learned Additional Solicitor General pointed out to the detailed discussions, which had ultimately resulted in the fixation of price by TRAI. He pointed out that in any event, when the appellant had filed vacate stay petitions, without even considering the same, the stay stood extended time and again. Thus, challenging the extension of stay would include the grant of stay at the first instance and it having merged with the subsequent orders of extension of stay granted, it is not necessary that the appellant herein has to challenge the first order.
14. Thus, he submitted that even while challenging the last of the orders extending the stay, it is always open to the aggrieved party to challenge the merits of the first order passed, granting interim stay. Learned Additional Solicitor General further pointed out that the Writ Appeals were listed for hearing on 17.4.2013. When learned counsel appearing for the Writ Petitioners took notice on behalf of the Writ Petitioners, the matters were directed to be posted on 22.4.2013 for filing counter. In the meantime, it is seen that the matter was listed before the learned single Judge on 18.4.2013, as originally proposed. After hearing the learned senior counsel counsel appearing for the Writ Petitioners as well as the learned Senior Panel Counsel appearing for the Writ Appellant herein, learned single Judge pointed out as follows: ".I am given to understand that on a special mention made by the learned senior counsel appearing for the proposed party/respondent BSNL, before the Hon'ble First Bench, the matter has been adjourned to 23.04.2013 by them, with a direction to the learned counsel appearing for the petitioner in W.P.No.3652 of 2013 to file an affidavit, appraising the Court of certain details.
2. In view of the same, it may not be proper on my part to take up the matter for the present and I would like to await the orders of the Hon'ble First Bench in this regard.
3. In so far as the interim order is concerned, in W.P.No.1875 of 2013 the interim order of stay as prayed for was granted on 24.01.2013 in MP.No.2 of 2013, with no time restriction, by the learned Judge at the time of admission.
4. In so far as WP.No.3652 of 2013 is concerned, this writ petition being a connected matter, following the said interim order, I granted an interim order of stay on 21.02.2013, which has been subsequently extended from time to time on all the hearing dates. On 03.04.2013 when the matter was posted for hearing, it was adjourned to 05.04.2013 at 2.15 p.m. on request. It is true that no mention is there in the docket about the extension of interim order granted. But since the matter was being heard finally by consent, on all the hearing dates the interim order was extended and the same ought to have been extended on that day also and non-mentioning of extension is an omission.
5. In view of the fact that the interim order granted has been extended periodically on every hearing day from 21.02.2013, the interim order is deemed to have been extended and in fact, on every hearing day, mention is being made to extend the interim order in WP.No.3652 of 2013. Moreso, the main writ petition was being heard with consent.
6. Therefore, the interim order is extended until further orders in this writ petition also, i.e., WP.No.3652 of 2013.".
15. On 10th June, 2013, the matter was listed before the First Bench of this Court and the same was directed to be listed before this Bench. Thus, he submitted that when the Writ Appeals are pending, the order extending the stay ought not to have been made.
16. Countering the stand of the appellant, Mr.P.S.Raman, learned senior counsel appearing for the respondent in W.A.No.854 of 2013, questioned the maintainability of the Writ Appeals, particularly in the context of the Writ Petitions themselves taken up for hearing with the consent of either side. He seriously objected to the line of contention made by the appellant herein that the Stay was granted on the mere asking of the same by the Writ Petitioners. Narrating the course of events that had taken place, particularly as regards the hearing of the main Writ Petitions itself, he pointed out that when the learned Solicitor General of India appeared before the learned single Judge on 25.3.2013, considering the fact that only notice on the admission was ordered, it was agreed to by the parties that the arguments could be made on the main Writ Petitions itself. Accordingly, when the matter stood adjourned to 08.3.2013, it was on the understanding that the main Writ Petitions itself would be argued on that date. On account of the boycott by the advocates, at the request of the parties, the matter was adjourned to 25.3.2013 and accordingly, the matters were heard on 25.3.2013 and 26.3.2013 at 2.15 p.m. as well as on 03.4.2013 at 2.15 p.m. On 03.04.2013, it was adjourned to 05.04.2013. However, the matter was listed on 10.4.2013 at 2.15 p.m. and again adjourned to 18.4.2013 at 2.15 p.m. He pointed out that contrary to the contentions of the appellant herein, the hearing was only on the main Writ Petitions and the Court records also would speak clearly about this, quite apart from the fact that the learned single Judge had also recorded the same even in his order dated 18.4.2013. He pointed out that the learned Solicitor General of India, who appeared for the Writ Appellant, had participated in the hearing of the main Writ Petitions. It would be a travesty of facts for the appellant now to come with a story as though the appellant had never consented for hearing of the main Writ Petitions itself. While not denying the fact that the appellants herein had filed a counter to vacate the stay on 22.2.2013, he pointed out to the impleading petitions filed in the meantime by the BSNL on 21.2.2013 and other private telecom operators filing impleading applications by Association of Competitive Telecom Operators on 08.03.2013 and Reliance Communications Ltd. on 22.3.2013. On 25.3.2013, when the respondent had filed its reply in these applications, it was agreed by all the parties that the Court may take up the main Writ Petitions themselves. Learned Solicitor General of India appearing for TRAI/ appellant herein and BSNL represented by the learned Additional Solicitor General were there and had not raised any objection to this course. The main hearing in the Writ Petitions were taken up on 25.3.2013 at 2.15 p.m.; 26.3.2013 at 2.15 p.m. and 03.04.2013 at 2.15 p.m. On the last date, i.e., on 03.04.2013, learned Additional Solicitor General appearing for BSNL insisted on the impleading petitions to be heard. Thereupon, learned Single Judge fixed 10.4.2013 as a date for hearing of that application. On 10.4.2013, it was agreed by all parties to continue the hearing of the Writ Petitions and that the impleading petitions could be decided along with the main Writ Petitions. At the request of the learned counsel appearing for the Writ Petitioners, the matters were adjourned to 18.04.2013 at 2.15 p.m. These facts are very much available on record and the learned counsel appearing for the appellant as well as the learned Solicitor General of India, who was there, were well aware about the same. He further pointed out that the law officers of the appellant were also present before the Court and it is too late for them to deny what had happened on those dates of final hearing of the Writ Petitions. He further pointed out that no memo was filed objecting to the hearing of the main Writ Petitions on those dates. He made a specific mention that the stay granted by this Court in W.P.No.1875 of 2013, which is evident from the order passed on 18.4.2013, was without any time restriction. Only in W.P.No.3652 of 2013, there was a necessity of extending the stay, it being granted for a limited time.
17. Thus, apart from questioning the filing of the Writ Appeals as gross abuse of judicial process, he also countered the maintainability of the Writ Appeals as one of continuation of proceedings under Article 226 of the Constitution of India. He submitted that the reliance placed on the case laws under C.P.C have no relevance, since intra-Court appeal itself is a matter of right. If any appeal has to be preferred under Clause 15 of the Letters Patent as against the order in the Writ Petition, it can only be as against the order which finally determines the right by way of judgment. Placing reliance on the decision reported in (2007) 67 ALR688(Punjab National Bank V. M/s.Salim Mian Tyre Retreading Co. (Works) through its proprietor, Budaun and another), he submitted that once a vacate stay petition is filed and when the hearing of the main writ petitions had taken place, there cannot be any appeal as against the order granting stay. Therefore, the appellant has to elect whether to go for a final hearing of the Writ Petitions or for hearing of the vacate stay petitions and certainly, an appeal will not lie as against the order granting stay. On facts, when the learned Solicitor General of India who appeared for the Writ Appellant had also commented and participated in the writ final hearing, it is not now open to the appellant to challenge the order extending the interim stay. In this connection, he also referred to the decisions of this Court reported in (1988) 1 LW149(The Special Tahsildar V. V.Ramasamy Reddiar) and (1976) 89 LW330(Abdul Shukoor Sahib V. Umachander and others) and submitted that the reliance placed on those decisions, holding that an appeal is a continuation of first proceeding, has no relevance as far as the present proceedings are concerned; on the admitted fact that the order passed is only an interim order and not a final order, the appeal has to be rejected. Pointing out to the reliance placed by the Writ Appellant on the unreported decision dated 22.04.2013 in W.A.No.572 of 2013 (Union of India V. State of Tamil Nadu & Others), learned senior counsel pointed out that in the decided case, there was no vacate stay petition filed; that immediately on the grant of stay, the appellant had gone before the appellate Court. On being satisfied that there was public injury and there was emergency which necessitated the entertainment of the Writ Appeal, this Court gave reasons as to why a Writ Appeal was entertained. Thus, the said decision cannot be of any assistance to the appellant herein to sustain its plea on the maintainability of the Writ Appeals, particularly in the context of the facts seen as above.
18. As regards the contention of the appellant on the public injury caused by the grant of stay, on the contention of the learned Additional Solicitor General that permitting the Writ Petitioners to charge the price different from TRAI price would affect the common man, he submitted that no materials have been placed by the appellant herein as regards the public injury suffered by the Government. When the fixation of price on the service provided by the Writ Petitioners is entirely a matter between the Writ Petitioners and the access providers, the present case does not, in any manner, call for any interference by this Court. On facts, the law laid down in the decision reported in (2006) 5 SCC399(Midnapore Peoples' Coop. Bank Ltd. V. Chunilal Nanda), does not, in any manner, support the case of the appellant.
19. Mr.Vijay Narayan, learned senior counsel appearing for the respondent in W.A.No.855 of 2013, took us through the main provisions of the Telecom Regulatory Authority of India Act, 1987, which provide the level playing field to various operators through the presence of Telecom Regulatory Authority of India. Referring to Section 11 of the Telecom Regulatory Authority of India Act, 1987, he pointed out that the Telecom Regulatory Authority of India assumed jurisdiction in this matter under Section 11(1)(b) of the Telecom Regulatory Authority of India Act, 1987. He pointed out that Clause 11(1)(b) deals with the terms and conditions of inter-connectivity between service providers, technical compatibility between different service providers and arrangement amongst service providers and sharing of revenue or providing telecommunication services. Even herein, none of the provisions touched on the infrastructure facility provided through cable landing stations so as to confer authority on the Telecom Regulatory Authority of India to frame Regulations. The present arrangement is in the nature of connectivity or leased line connectivity or international connectivity to the network operated by foreign carriers and not interconnectivity which presupposes mutuality and reciprocating. Thus, Cable Landing Station facility cannot fall under Section 11(1)(b)(ii), as there is no fixing of terms of interconnectivity between two service providers. Thus the Regulation issued fixing charges to be charged from the access providers, is totally without jurisdiction. He further pointed out that 2007 Regulations fixing the charges to be charged by the respondents/writ petitioners were the result of deliberations among various stakeholders. However, when the Writ Petitioners themselves offered 40% reduction for the past four years, there was no response from the Telecom Regulatory Authority of India. In any event, the present decision made dated 21.12.2012 and 07.06.2012 and 19.10.2012, fixing the charges, suffers from arbitrariness and lack of transparency and there is no deliberation in the matter of fixing the rates, revising it to 95% upwards from what was fixed during 2007.
20. Contending that the acceptance of the price fixed under 2007 Regulations, by itself, would not confer any authority to fix rates as the appellant thinks, in the absence of any specified power under the Act to confer such authority, he submitted that the Regulation issued is without any valid authority. He submitted that it is well settled that consent can never confer jurisdiction on any authority to pass any order to regulate the activity of any person. He pointed out that even though the Writ Petitioners had questioned the jurisdiction, still they are charging the rates fixed in the year 2007 and in the event of any reduction and ultimately, if this Court has to hold against the Writ Petitioners, any excess amount collected as per the 2007 Regulation in contrast to the 2012 Regulation fixing prices, would go back to the customers only and not to the Government. For these, charges are paid only by the access providers and it has nothing to do with any receipt payable to the appellant herein. In this background alone, at the time of admission, this Court recorded the undertaking of the learned senior counsel appearing for the petitioners and hence, it is totally incorrect to say that the interim stay was granted without application of mind. He submitted that the facts recorded by the learned single Judge showed the correct reflection of the state of affairs when the Writ Petition was taken up on a day-to-day basis by consent of parties. The conduct of the appellant today cannot erase the facts recorded by this Court. On the allegation of the Writ Appellant that the stay would create great hardship to the public and affect the economy at large, he submitted that such apprehension is wholly baseless and without material. The market is much more competitive and competent to regulate itself.
21. Commenting on the attitude of the appellant as an upfront to the dignity of this Court, both learned senior counsel appearing for the Writ Petitioners expressed their deep anguish over the conduct of a statutory body, like the appellant herein. This is more so, when the learned Solicitor General himself was present and the hearing of the Writ Petitions was taken up with the consent of parties. Commenting on the attitude of the appellant as well as on the rejoinder filed by the Under Secretary, learned senior counsel, however, pointed out to the admission in the rejoinder itself that the hearing was taken up by the learned single Judge on the merits of the Writ Petitions and that there was no prejudice or demur by the appellant; consequently, he questioned the very maintainability of the Writ Appeal at this stage. He pointed out that more than 75% of the hearing of the Writ Petitions was over and if allowed to get along with the Writ Petitions, by now, the hearing of the main Writ Petitions itself would be over, ready for delivery of judgment. He further questioned the correctness of the claim made in the rejoinder by the Under Secretary that despite the appellant's request for taking up the vacate stay petition, learned single Judge refused to dispose of the same. The averments are wholly untrue and the deponent was not there at all to make such statements. He pointed out that in any event, the Writ Appeals have been filed challenging the order dated 03.04.2013 and there is no challenge to the original order passed by this Court; hence, not being a subject matter of the Writ Appeal, it is not open to question the same in the Writ Appeals. When the Writ Petitions are taken up for final hearing, the grant or extension of stay could not be a subject matter of appeal. He further pointed out that in the wake of the order passed on 18.4.2013 recording the facts and extending the stay, the Writ Appeal has become infructuous. He further submitted that the averments in the rejoinder are contrary to the facts. The appellant is not an ordinary litigant.
22. On the dispute raised as to the final hearing of the case and on the legality of questioning the recordings on-and-on made by this Court in the order made on 18.4.2013, he placed reliance on the decisions reported in (1982) 2 SCC463(State of Maharashtra V. Ramdas Shrinivas Nayak & another); (2003) 7 SCC546(Guruvayoor Devaswom Managing Committee and another V. C.K.Rajan and others) and (2011) 12 SCC658(Vimaleshwar Nagappa Shet V. Noor Ahmed Shariff and others) and submitted that even assuming that the appellant had not consented for the hearing of the main Writ Petitions, the appellant should have taken steps to set the records correct. Being a statutory authority represented by the learned Solicitor General of India, the appellant should have acted with a sense of responsibility to uphold the dignity of the Court and thought twice before making the allegation contained in the Writ Appeal. Hence, the Writ Appeal did not call for any interference and has to be dismissed.
23. Replying to the submissions made by the learned senior counsel appearing for the Writ Petitioners, learned Additional Solicitor General took us through the enactment of the Telecom Regulatory Authority of India, 1997 as well as the Regulations framed by the Telecom Regulatory Authority of India and submitted that once the Writ Petitioners have subjected themselves to the authority, which rightly had been conferred under Section 11(1)(b) of the Telecom Regulatory Authority of India Act, 1987, it is too late for the Writ Petitioners to question it. Reiterating his contention that the stay would cause a serious blow to the economy and would ultimately affect the poor subscribers, who alone may have to bear the brunt of the price charged by the Writ Petitioners herein, he submitted that when public injury is writ large, this Court may vacate the stay granted.
24. Heard Mr.P.Wilson, learned Additional Solicitor General appearing for the appellant; Mr.P.S.Raman, learned senior counsel appearing for the respondent in W.A.No.854 of 2013 and Mr.R.Vijay Narayan, learned Senior Counsel appearing for the respondent in W.A.No.855 of 2013 and perused the materials placed before this Court.
25. Before going into the merits of the contentions made by the parties herein, we may have to state certain facts herein. The Writ Appeals were first listed before us for hearing on 11.6.2013. After hearing the learned counsel briefly, particularly on the maintainability of the Writ Appeals as against the interim order and considering the grievance raised by the appellant herein as to the public injury caused by the order of stay, this Court suggested to the learned Additional Solicitor General as to whether the appellant would go ahead with the hearing of the main Writ Petitions so that, by consent of parties, the hearing could be taken up by the Bench itself. Although the Writ Petitioners/respondents in the Writ Appeal expressed their willingness to go ahead with the hearing of the main Writ Petitions by this Bench, learned Additional Solicitor General, however, expressed his reservation about this Bench hearing the Writ Petitions without hearing the Writ Appeals for vacating the stay. In any event, he sought for time to get instructions from the appellant. The matter was adjourned to 14.6.2013. However, the matter was not listed that day. Hence, on 14.6.2013, on mentioning, the same was directed to be listed on 21.6.2013. However, learned Additional Solicitor General filed a memo of instruction on 13th June, 2013, wherein, it is stated that since the appellant would be deprived of an appeal remedy, this Court may allow the appellant to argue the main Writ Appeals itself. Accordingly, in the context of the above-said memo filed by the learned Additional Solicitor General, this Court listed the matter for hearing on 24.6.2013 25.6.2013 and 26.6.2013 and accordingly, the Writ Appeals were heard.
26. It may also be pointed out that at the conclusion of the hearing, since one of the grievances projected by the Writ Petitioners was that there was no transparency and deliberations in the 2012 rate fixing, unlike the 2007 rate fixed, in order to bring a quietus to the matter to arrive at a mutually agreeable rate, this Court further asked the learned Additional Solicitor General to get instructions from the appellant as to whether Telecom Regulatory Authority of India would have a deliberation with the various stakeholders to consider the grievance of the Writ Petitioners to arrive at the rate chargeable by the Writ Petitioners from the access providers. The Writ Petitioners submitted that leaving aside the question of jurisdiction, they were willing to participate in any discussion with the appellant in a time bound manner and report the same to this Court. Thus, after hearing both sides, this Court directed the respective counsel to get instructions from the parties. On 25.6.2013, learned senior counsel appearing for the Writ Petitioners expressed that keeping the jurisdiction aspect open, which may be considered in any future date, they were willing to appear before the Telecom Regulatory Authority of India for re-consideration of the rates and arrive at a settled rate.
27. Learned Additional Solicitor General, however, filed a letter from the appellant dated 25.6.2013, which reads as under: ".Please refer to your letter dated 24.6.2013 received through e-mail in which you have requested written instructions of TRAI in the above mentioned cases. The stand of the Authority in the matter is as under:- ".The interim orders staying the operation of the regulations impugned by M/s.Tata Telecommunication Ltd. and M/s.Bharti Airtel Ltd. granted by the Ld. Single Judge Bench of this Hon'ble High Court should be vacated and the provisions of all the impugned regulations dated 21-12-2012, 19-10-2012 and 7-6-2007 including the charges specified under regulations dated 21-12-2012 shall be implemented by the service providers. The service providers may approach TRAI and the Authority, without prejudice, is willing to give an opportunity to represent their grievances with regard to the charges specified in the regulations dated 21-12-2012. In the light of the above, the Writ Petitions filed by both the service providers may be disposed of.".".
28. The memo and the letter only reflect the attitude of the statutory body in not bringing the settlement to the issue at the earliest and their anxiety was only to vacate the stay.
29. Leaving this aside, in the face of the records available before this Court as to how the proceedings went on since the time of filing the vacate stay petitions, the conduct of the Authority in moving these Writ Appeals also calls for serious notice by this Court. As already seen in the preceding paragraphs while narrating the facts right from the time the matter was listed for arguments on the main Writ Petitions, the listing of the case before the learned single Judge at 2.15 p.m. from 25.3.2013 shows that the listing was for hearing of the main Writ Petitions. This is so in the context of the admitted fact that the Writ Petitions were yet to be admitted and even as per the endorsement dated 24.01.2013 in W.P.No.1875 of 2013, there was only notice regarding admission returnable in two weeks and private notice was also permitted. This Court granted an order of interim stay after recording the submission of Mr.C.S.Vaidyanathan, learned Senior Counsel appearing for the petitioner that in the event of any amount payable by the petitioner, the petitioner would make the payment. Considering the stay thus granted in W.P.No.1875 of 2013, when W.P.No.3652 of 2013 was taken up in the admission list, noting the similar issue in W.P.No.1875 of 2013 in which notice regarding admission was ordered, on 21.2.2013, this Court directed the matter to be listed on 22.2.2013 when W.P.No.1875 of 2013 was to be posted and accordingly, interim stay was also granted.
30. A reading of the orders of stay granted by this Court shows that the same was granted in the Writ Petitions and the Miscellaneous Petitions in the respective cases. It is also a matter of record, as seen from the cause list, that the matters stood adjourned for hearing at 2.15 p.m. on 25.3.2013, 26.3.2013 and 04.04.2013 respectively. These are matters of record of this Court, which cannot be ignored by the appellant herein. It is also a matter of record that having regard to the impleading petitions filed by the access providers as well as BSNL, which is on the same status as that of the Writ Petitioners, the Writ Petitioners sought for time to file response to these impleading petitions. The order passed by this Court on 18.4.2013 referred to this and stated that on a special mention made by the learned senior counsel appearing for the proposed party/respondent BSNL before the Honourable First Bench, the matter was adjourned to 23.4.2013 by the Bench with a direction to the learned counsel appearing for the petitioner in W.P.No.3652 of 2013 to file an affidavit, apprising the Court with certain details. In the context of Writ Appeals filed, learned single Judge felt that it would not be proper on his part to take up the matter at that time, but to await the orders of the Honourable First Bench. In this background, extending the stay granted in W.P.No.3652 of 2013, where the stay was limited, and finding that there was no need for such extension in W.P.No.1875 of 2013, where there was no such restricted stay, learned single Judge pointed out that even though there was no mention regarding the extension of interim order in W.P.No.3652 of 2013 on 03.04.2013, on which day the matter stood adjourned to 05.04.2013, he observed ".since the matter was being heard finally by consent, on all hearing dates the interim order was extended and the same ought to have been extended on that day also and non-mentioning of extension is an omission".. Learned single Judge also pointed out ".on every hearing day, mention was made to extend the interim order in W.P.No.3652 of 2013. Moreso, the main Writ Petition was being heard with consent.". In the background of the records of this Court speaking about the hearing of main Writ Petitions, we fail to understand how the appellant would be justified legally and even otherwise, to maintain these Writ Appeals, contending as though in spite of the request, the vacate stay petition was not heard but the stay was extended mechanically, and for the mere asking by the Writ Petitioners.
31. As rightly pointed out by Mr.Vijay Narayan, learned senior counsel, if there had been a mistake in the notings in the Court records, nothing prevented the appellant herein from bringing to the knowledge of this Court that the appellant had consented only for hearing of the vacate stay petition and not the main Writ Petitions. Thus, nothing prevented the appellant herein from making such a submission before the learned single Judge by filing a memo to insist on the hearing of the vacate stay petitions, as they have now done before us on the hearing of the Writ Appeals. There is no denial of the fact from the appellant's side that the hearing before the learned single Judge was only in the main Writ Petitions and the learned Solicitor General of India was also present therein apart from the learned senior counsel for BSNL, who sought to implead itself in the Writ Petitions. Thus, the hearing in the Writ Petitions went on for more than three days with full knowledge about the hearing.
32. The rejoinder filed by the appellant to the counter filed, pointed out that the appellant was represented by the learned Solicitor General of India, who insisted on the hearing of the vacate stay petitions before the learned single Judge. The deponent, namely, Advisor, Telecom Regulatory Authority of India, stated that the learned Solicitor General of India had abundantly made it clear that the Writ Petitioners, after obtaining ex parte non-speaking stay order against a subordinate legislation, are trying to drag the matter and that in fitness of things, learned single Judge ought to decide the application for vacation of stay before proceeding to hear the main Writ Petitions. The rejoinder further reads ".However, the learned single Judge was not pleased to hear the vacate stay petition and posted the matter on 05.04.2013 for hearing the impleading parties. The Learned single Judge was pleased to again extend the interim order till the next date of hearing in both the Writ Petitions.". We have no idea as to whether this deponent was present before this Court to make such averment, nor are there materials based on which this statement is made. The one and only fact which appears as an acceptable one is the knowledge of the appellant herein about the hearing of the main Writ Petitions on all the dates at 2.15 p.m. before this Court. The affidavit does not speak about his personal knowledge in this matter, nor the materials based on which he is speaking so. Whatever be the source of information based on which that the deponent may have stated therein, with the Court records speaking otherwise on the listing of the main Writ Petitions themselves, wherein notice on admission alone was ordered, we feel, it is high time that the law officers, whomsoever he may be, should show some sense of responsibility in making the statement of facts, particularly of the nature spoken to as to the hearing of the Writ petitions, where both sides were present and had participated in the proceedings before this Court. It is highly regrettable that having participated in the proceedings on the hearing of the main Writ Petitions with no demur or protest on the extension of stay granted by this Court, the Authority has preferred these appeals showing utter contempt of what had taken place before the learned single Judge. We are equally pained by the reaction shown by the appellant to the observations of the learned single Judge in his order dated 18.4.2013, which records, as a matter of fact, about the hearing of the Writ Petitions by consent before this Court. Whatever be the grievance that the appellant may have on the grant of stay, unless the records are set right at the earliest opportunity itself, we hold that it is not open to the appellant herein to make a big grievance, as though their voice was not heard.
33. In the decision reported in (1982) 2 SCC463(State of Maharashtra V. Ramdas Shrinivas Nayak and Another), the Apex Court pointed out that when the Court records the statement of fact regarding proceedings in the Court, such as, admission or concession made by a party, the same is conclusive and not to be contradicted in an appeal. This Court observed as follows: ".When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. ".Judgments cannot be treated as mere counters in the game of litigation".. We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.".
34. Referring to the decision, which is one of the earliest decisions of the Calcutta High Court, reported in 34 Cal LJ302AIR1921Cal 584 (Sarat Chandra Maiti V. Bibhabati Debi), the Apex Court pointed out that the judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else.
35. Similar is the observation in the decisions reported in (2003) 7 SCC546(Guruvayoor Devaswom Managing Committee and another V.C.K.Rajan and others) as well as in (2011) 12 SCC658(Vimaleshwar Nagappa Shet V. Noor Ahmed Shariff & Ors.), wherein it is observed as follows: ".13. The statement made by the counsel before the High Court, as recorded in the impugned judgment and order, cannot be challenged before this Court. (vide State of Maharashtra vs. Ramdas Shrinivas Nayak, Shankar K. Mandal V. State of Bihar, Roop Kumar vs. Mohan Thedani and Guruvayoor Devaswom Managing Committee v C.K. Rajan)".
36. We do not think we need to elaborate further on this, except to say that whomsoever or highsoever a litigant may be, the responsibility of upholding the dignity of the Court lies at the hands of everyone that when the Court records certain state of affairs and facts regarding the conduct of the proceedings, the least that the litigant or an aggrieved party can do is not to tarnish the image of the Court with misstatement of facts, even as an after-thought, more so, when that litigant had not acted with caution to correct the facts before that Court itself.
37. As already pointed out, the hearing of the case in the main Writ Petitions had taken place for more than one day, even as on the date of filing of the Writ Appeals. As seen from the cause list, the Writ Petitions were posted for hearing at 2.15 p.m. at the instance of the parties on more than one occasion. Thus, on the facts stated herein, when the appellant had not elected to insist on the hearing of the vacate stay petitions, we fail to understand how these Writ Appeals could be maintained at all. Learned Additional Solicitor General submitted that when the appellant has not filed a counter in the main Writ Petitions, how at all the hearing in the main Writ Petitions will go on. We do not think, such a question at this stage could be raised even to draw as an inference that the hearing was only on the vacate stay petitions, particularly in the face of the record showing that there was only a notice regarding admission, returnable in two weeks. A reading of the counter affidavit filed shows that the same was filed in the Writ Petitions and the discussions in the counter were on every aspect of the allegations contained and the other grounds taken in the Writ Petitions. It is no doubt true that the last paragraph seeks an order to vacate the stay granted in the Writ Petitions. But by this, one cannot say that the counter filed was incomplete, requiring further affidavit to be filed. In any event, nothing prevented the appellant from placing this before the learned single Judge. With the awareness on the part of the appellant herein on the counter filed in the Writ Petitions, when the knowledge of the appellant was very much there before the Court on the hearing of the main Writ Petitions itself, we feel, the line of contention taken by the appellant is only a last straw in the matter and hence liable to be rejected in toto.
38. Mr.P.S.Raman, learned senior counsel appearing for the respondent in Writ Appeal No.854 of 2013, placed reliance on the observation in the decision reported in (2007) 67 ALR688(Punjab National Bank V. M/s.Salim Mian Tyre Retreading Co. (Works) through its proprietor, Budaun and another), wherein similar situation arose that an application for vacating stay was pending and an appeal was filed as against the interim order. Rejecting the appeal, the Allahabad High Court held ".it is crystal clear that the bank can avail opportunity of appeal either being unsuccessful to get the ex parte injunction order discharged, varied or set aside in terms of Order XXXIX, Rule 4, C.P.C. or straightway.". When such was not the course, the appeal itself was not maintainable. The Court also rejected the contention of the appellant that since the hearing of the case stood adjourned several times, the application for vacate stay could not be heard at the earliest. The Bench expressed its desire that the application, which was pending before the Court, should be heard as expeditiously as possible.
39. We agree with the line of reasoning of the Allahabad High Court. However, as already noted, with the hearing in the main Writ Petitions taken up, the Writ Appeals themselves lack any sustainable strength. Therefore, we do not find any justification in the appellant filing these appeals as against the extension of stay granted. As rightly pointed out by the learned senior counsel appearing for the respondents in these Writ Appeals, the Writ Appeals themselves were filed only as against the order of extension of stay and not as against the grant of stay originally. The said contention of the respondents was, however, countered by the learned Additional Solicitor General that the Writ Appeal is a continuation of the original jurisdiction. In any event, when there is a public injury caused, technicalities should not stand in the way of considering the Writ Appeals on merits.
40. In this connection, the decision reported in 2007-2-L.W. 919 (Villupuram Market Committee and others V. K.Sekar) and the unreported decision dated 22.4.2013 in W.A.No.572 of 2013 (Union of India V. State of Tamil Nadu & Others), on which heavy reliance was placed by the learned Additional Solicitor General, need to be seen.
41. The decision reported in 2007-2-L.W. 919 (Villupuram Market Committee and others V. K.Sekar) relates to a cross objection filed by the Writ Petitioner in the appeal filed by the respondents in the Writ Petition. The appellant resisted the filing of the cross objection on the ground that the provisions of C.P.C are not applicable to the Writ Petitions as well as the Writ Appeal arising out of a Writ Petition. As such, the Writ appellant questioned the maintainability of the cross objection. Holding that though the appeal proceeding is a continuation of the proceeding initiated under Article 226 of the Constitution of India, the provisions of C.P.C would have no application in respect of the Writ Appeal filed under Clause 15 of the Letters Patent, in paragraph Nos.26 and 27, this Court rejected the plea for maintainability of the cross objection filed by the Writ Petitioners.
42. In the unreported decision of this Court dated 22.4.2013 in W.A.No.572 of 2013 (Union of India V. State of Tamil Nadu & Others), we find that the Writ Appeal itself was filed against the interlocutory order granted by the learned single Judge granting an order of interim injunction. The Union of India challenged the interim order granted on the dual pricing on the supply of petroleum products. On a specific question raised as to whether a Writ Appeal would lie as against the interim order granted, this Court referred to the decisions reported in AIR1981SC1786(Shah Babulal Khimji V. Jayaben D. Kania and another) and AIR2001SC883(Employer in Relation to Management of Central Mine Planning and Design Institute Ltd., V. Union of India and another) and held that though the interim order passed by the learned single Judge does not decide the case finally and every interlocutory order cannot be regarded as a judgment, yet, when the order materially or directly affects the appellant, where the oil marketing companies would be required to supply diesel at the rate at which they were supplying to the retail consumers, thereby causing daily loss to the Oil Marketing Companies running into several crores of rupees and burdening the appellant in grant of subsidy, when orders affect the vital and valuable rights of the parties and cause serious prejudice to the party concerned, appeal would be maintainable under Clause 15 of the Letters Patent. In so holding, this Court referred to the decision of the Apex Court reported in 2006 (5) SCC399(Midnapore Peoples' Coop. Bank Ltd. V. Chunilal Nanda) and upheld the Writ Appeal filed as regards the jurisdiction of this Court under Clause 15 of the Letters Patent. This Court further considered the question on the interim order passed without assigning reasons. Referring to a series of decisions, this Court held that, to vacate the order passed on the ground that the learned single Judge had not given any reason while passing an order of injunction, consideration of prima facie case, balance of convenience, irreparable loss caused to the respondent while passing the impugned order, are necessary. Thus, this Court referred to the decisions of the Apex Court and ultimately vacated the order of injunction granted. This Court also pointed out that the question as to whether the policy decision taken by the Government could be interfered with or not is a matter to be gone into in the main Writ Petition and rejected the plea of the Government that policy decisions of the Government could not be interfered.
43. As far as the reliance placed on these two decisions are concerned, as rightly submitted by the learned senior counsel appearing for the Writ Petitioners, the same are distinguishable from the facts available herein. As already pointed out, even though the vacate stay petitions were filed in the case on hand, yet, when the parties had agreed for hearing of the main Writ Petitions themselves and in fact, the hearing had taken place, a fact which is recorded in the order dated 18.4.2013, we agree with the submission of the respondents on the propriety of filing the Writ Appeals before this Court and it is not open to the appellant to seek any relief in these Writ Appeals.
44. Quite apart, even as regards the maintainability of the writ petitions on the granting of interim stay, we may also point out the error in the reasoning of the learned Additional Solicitor General based on the decision of the Apex Court reported in (2006) 5 SCC399(Midnapore Peoples' Coop. Bank Ltd. V. Chunilal Nanda) as well as the order passed by this Court in the Writ Appeal dated 22.4.2013 in W.A.No.572 of 2013 (Union of India V. State of Tamil Nadu & Others).
45. A reading of the decision of the Apex Court reported in (2006) 5 SCC399(Midnapore Peoples' Coop. Bank Ltd. V. Chunilal Nanda) shows that the question raised therein related to the maintainability of an appeal in the contempt proceedings. Dealing with the provisions of Letters Patent, particularly Clause 15 on the intra-Court appeal against interlocutory orders passed, the Apex Court pointed out that Clause 15 of the Letters Patent provides for an appeal from the judgment of a single Judge in exercise of original jurisdiction, to a Division Bench. On a consideration of the decisions reported in (1981) 4 SCC8(Shah Babulal Khimji V. Jayaben D. Kania); (2001) 2 SCC588(Central Mine Planning and Design Institute Ltd. V. Union of India); (2003) 10 SCC691(Mithailal Dalsangar Singh vs. Annabai Devram Kini) and (2003) 10 SCC361(Subal Paul vs. Malina Paul), the Apex Court pointed out to the kinds of interlocutory orders that may be passed during the pendency of the case as follows: ".15. Interim orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories : (i) Orders which finally decide a question or issue in controversy in the main case. (ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case. (iii) Orders which finally decide a collateral issue or question which is not the subject matter of the main case. (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment. (v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties. ". Having thus narrated the kinds of orders that may be passed as interim orders, the Apex Court further observed: ".16. The term 'judgment' occurring in clause 15 of the Letters Patent will take into its fold not only the judgments as defined in section 2(9) CPC and orders enumerated in Order 43 Rule 1 of CPC, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, 'judgments' for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not 'judgments' for purpose of filing appeals provided under the Letters Patent. ".
46. Thus, the Apex Court held that normally intra-Court appeal would lie only as against orders, which are ".judgments".; however, orders which may cause some inconvenience or some prejudice to the party, but which do not finally determine the rights and obligations of the parties, would not be a ".judgment". for the purpose of filing appeal, provided under the Letters Patent. Even herein, the Apex Court pointed out that if such interim order finally decides several rights and obligations of parties, the same would be appealable under Clause 15 of the Letters Patent. The unreported judgment of this Court followed the dictum of the Apex Court and pointed out that the order of interim stay passed by the learned single Judge was one such order causing serious prejudice to the Government of India, which subsidised the sale of petroleum products by Oil Companies, which called for entertaining of the appeal. On merits, this Court considered the various parameters in the granting of interim order and when the order did not disclose the grounds, the stay was liable to be set aside. It may be of relevance to note that contrary to the assertion of the appellant, in the unreported decision in W.A.No.572 of 2013 dated 22.04.2013 (Union of India Vs. State of Tamil Nadu and others), there was no application filed to vacate the stay and immediately on the grant of stay by this Court, on the prejudice pointed out in clear terms in the context of the fact that the item in question was a subject matter of subsidy at the hands of Union of India, the Union of India filed the Writ Appeal to challenge the order passed.
47. In the background of the facts stated, we reject the contention of the appellant based on the reliance on the rulings referred to above. This is quite apart from what we have expressed in the preceding paragraphs based on the conduct of the parties. The stay granted does not foreclose the hearing of the writ petitions, or for that matter, affects the final decision in the writ petitions. Except for the persistent argument from the appellant that the grant of stay had practically decided the issue, we do not find any answer from the appellant as to how it is so. We however feel that this kind of enquiry is wholly unnecessary, in any event, in the context of the hearing of the main writ petitions.
48. One of the objections taken by the respondents on the contention of the appellant relates to the writ appeal that though the first order was not challenged, the challenge on the extension of stay would include the challenge to the original order of stay. Learned senior counsel appearing for the respondents pointed out that the case laws given under C.P.C cannot be of any assistance to the Writ Appellant.
49. We do not think, at this stage, we need to go into this aspect, more so, for the reasons we have already given in the preceding paragraphs. Learned Additional Solicitor General pointed out that the order passed by this Court has seriously affected the rights of the appellant herein and had caused serious injury to the economy which would affect the common man and hence, the stay should be vacated. We do not think we can accede to this prayer at this stage, particularly in the absence of any materials placed before this Court as to the nature and the extent of injury caused, as was projected in the writ appeals relating to dual pricing on petrol. Admittedly, the Regulating Authority has fixed the cost, which the Writ Petitioners may have to charge the access providers as such. On the sole ground that the cost charged by the appellant may percolate in the cost which would ultimately be charged by the access providers to the service receivers, one cannot visualise the kind of damage at this stage, as has been propounded by the appellant herein. Except for a loud noise made on the so-called injury to the economy and the impact which would lead to crumbling of the economy and the national policy on telecom services, we do not find any factual basis for making such an allegation and hence, this line of contention merits to be dismissed straight away.
50. As regards the decisions relied by the learned Additional Solicitor General, particularly on the aspect of grant of stay, as rightly pointed out by the learned senior counsel appearing for the writ petitioners, there is no dispute as to the law governing the grant of stay. However, on facts, this question does not arise at all to see whether the interim order granted would stand the tests laid down by the Apex Court in the series of decisions. However, when this Court had recorded the undertaking made by the learned senior counsel appearing for the Writ Petitioners that in the event of any amount payable by the petitioner, the petitioner will make the payment and when this Court had merely ordered notice even as regards the admission of the Writ Petition and that the main Writ Petitions themselves taken up for hearing with the knowledge of the appellant herein, there being no protest from the appellant on the hearing of the same, without first considering the vacate stay petition, we do not think that this Court should interfere with the order of the learned single Judge at this stage solely by reason of the unreported decision of this Court dated 22.4.2013 in W.A.No.572 of 2013 (Union of India V. State of Tamil Nadu & Others).
51. In the background of the facts and the reasoning thus given by us, we do not think we should interfere with the order of the learned single Judge granting an order of interim stay.
52. We may also point out the serious comment made by the appellant herein as to the order passed by this Court on 18.4.2013 by the learned single Judge in W.P.No.3652 of 2013 and M.P.No.2 of 2103 and W.P.No.1875 of 2013 and M.P.No.2 of 2013. Even though the counsel on record appearing for the appellant herein stated orally that the order was reserved and passed subsequently and that he was not present, when the order was reserved by the learned single Judge, we do not find any justifiable ground to accept these kinds of plea, considering the fact that there is no endorsement in the Order Sheet that the order was reserved. Further, order passed by this Court clearly mentioned about the special mention made by the learned senior counsel appearing for the BSNL. Admittedly, the order was dictated in the presence of the learned senior counsel appearing for the writ petitioners and the respondent in the Writ Petitions, i.e, the Writ Appellant. Thus the comments made by the learned Additional Solicitor General are totally contrary to the facts. The appellant herein was duly conscious about the orders passed and the observations made therein.
53. The fact remains that the Writ Petitions were taken up for hearing finally by consent. There being no objection from the learned Solicitor General of India, who was present there, for hearing the case at 2.15 p.m. on various dates, it is not open to the Writ Appellant herein either to challenge the stay order at this distance of time before the Division Bench or project the grievance as though the vacate stay petition remained without any hearing granted to this appellant and that in spite of their protest, learned single Judge went ahead with the hearing of the case. In the circumstances, when no damage had been done in the order passed on 18.4.2013 and that the learned single Judge himself had observed that considering the pendency of the Writ Appeals, it would not be appropriate on his part to take up the matter at that time, we have no hesitation in rejecting the objections made on the order passed on 18.4.2013. In any event, this order is not the subject matter of appeal before this Court. However, for completion of narration on the contentions taken by the parties, we are bound to make the observations and not otherwise.
54. In the light of the above, we dismiss the Writ Appeals filed by the appellants. Since the Writ Petitions are already heard in part, we direct the parties to move the concerned Court for hearing the Writ Petitions. The parties are directed to go ahead with the hearing of the main Writ Petitions at the stage it was left before the learned single Judge. In the result, both the Writ Appeals are dismissed. No costs. Consequently, M.P.Nos.1 and 1 of 2013 are also dismissed. Index :Yes/No (C.V.,J) (K.B.K.V.,J) Internet:Yes/No 26.06.2013 sl CHITRA VENKATARAMAN,J.
AND K.B.K.VASUKI,J.
Sl W.A.Nos.854 and 855 of 2013 & M.P.Nos.1 and 1 of 2013 26.06.2013