Judgment:
$~28 & 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:
3. d May, 2019 + W.P.(C) 1507/2018 SYNIVERSE TECHNOLOGIES (INDIA) PVT. LTD. ........ Petitioner
TELECOM REGULATORY AUTHORITY OF INDIA AND ANR. ........ RESPONDENTS
versus + W.P.(C) 1508/2018 M/S MNP INDERCONNECTION TELECOM SOLUTIONS INDIA PRIVATE LIMITED ........ Petitioner
versus TELECOM REGULATORY AUTHORITY OF INDIA AND ANR. 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. ........ RESPONDENTS
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 W.P.(C) 1508/2018 in W.P.(C) 1507/2018 & W.P.(C) 1508/2018 Page 1 of 4 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. W.P.(C) 1507/2018 & W.P.(C) 1508/2018 Page 2 of 4 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 W.P.(C) 1507/2018 & W.P.(C) 1508/2018 Page 3 of 4 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. MAY03 2019 ‘hkaur/pv’ S. RAVINDRA BHAT, J PRATEEK JALAN, J W.P.(C) 1507/2018 & W.P.(C) 1508/2018 Page 4 of 4