Judgment:
A.K. Srivastava, J.
(1) This is an application under Section 9 of the Arbitration and Conciliation Act, 1996 with the following reliefs:
'(I)Restrain the respondent from in any manner interfering with or obstructing or causing or permitting to cause anybody else to interfere with or obstruct with the applicant in providing in the town of Punchkula the Cellular Mobile Telephone Service as part and parcel of the Haryana Territorial Telecom Circle, and pass ex parte orders in terms thereof. (ii) Direct the respondent not to permit the Licensees of Punjab Telecom Circle from providing Cellular Mobile Telephone Service in Punchkula. (iii) Pass such other order(s) deemed fit and proper in the facts and circumstances of the present case.'
(2) Notice was issued to the respondent Union of India. In response Mr.S.S. Sabharwal, Standing Counsel for Union of India, appeared and took a legal plea that this Court has no jurisdiction to deal with the matter in dispute in view of the provisions of the Telecom Authority of India Ordinance, 1997 (for short `Ordinance') which came into force on 25.1.199 It was further submitted that the Telecom Regulatory Authority of India (for short `TRAI') has been established by a notification issued on 20.2.1997. When the plea of lack of jurisdiction was taken, it was, with consent of parties, decided to take up for consideration and decision the said plea as a preliminary point for determination.
(3) Since the main matter is said to affect not only Haryana Circle but Punjab Circle as well two applications under Order 1 Rule 8A read with Section 151, Cpc, were moved by two licencees in Punjab Circle, namely, M/s. J.T. Mobile Ltd. and M/s. Modicom Net Work Pvt. Ltd. for being imp leaded as parties in this petition. The petitioner accepted notice of these applications and sought time to file reply.
(4) From the side of the petitioner Mr. Mukul Rohtagi, Senior Advocate, submitted his arguments and from the side of the respondent Mr. S.S. Sabharwal submitted his arguments. Since a legal issue was being heard Mr. Harish N. Salve, Senior Advocate, appearing for M/s. Modicom Net Work Pvt. Ltd. and M/s. Modicom Net Work Pvt. Ltd. was also heard.
(5) From the side of the respondent it was asserted that under Section 11 of the Ordinance it is one of the functions of Trai to settle disputes between service providers and, thereforee, the petitioner should have approached Trai and that this Court has no jurisdiction to deal with the petition. On the other hand, learned Counsel for the petitioner says that only the disputes in respect of the matters referred to in Sub-section (2) of Section 14 are the disputes to be settled by Trai and the rest of the disputes between the service providers have to be decided by the other competent adjudicating authorities.
(6) It will be appropriate to state the relevant provisions of the Ordinance. Section 11 deals with the functions of the authority and in its Sub-section (1), one of the functions is to settle disputes between service providers. The terms service providers is defined in Clause (j) of Sub-section (1) of Section 2 as `service providers means the Government and includes a licensee'. The term licensee is defined in Clause (e) of Sub-section (1) of Section 2 as' licensee means any person licensed under Sub-section (1) of Section 4 of the Indian Telegraph Act, 1885 (13 of 1885), for providing specified public telecommunication service'.
(7) From the aforesaid there is no scope for doubt that the petitioner being licensee and the respondent Union of India, being Government, are covered under the definition of `service provider'.
(8) The heading of Chapter Iv of the Ordinance is `Settlement of Disputes'. Section 14 in this Chapter has the heading 'Authority to settle the disputes'. Section 14 reads as follows:
'14.Authority to settle disputes- (1) If a dispute arises, in respect of matters referred to in Sub-section (2), among service providers or between service providers and a group of consumers, such disputes shall be adjudicated by a Bench constituted by the Chairperson and such Bench shall consist of two Members: Provided that if the Member of the Bench differ on any point or points they shall state the point or points on which they differ and refer the same to a third Member for hearing on such point or points and such point or points shall be decided according to the opinion of the Member. (2) The Bench constituted under Sub-section (1) shall exercise, on and from the appointed date all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court on any matter relating to- (i) technical compatibility and inter-connections between service providers; (ii) revenue sharing arrangements between different service providers; (iii) quality of telecommunication services and interest of consumers: Provided that nothing in this sub-section shall apply in respect of matters relating- (a) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under Sub-section (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969); (b) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission established under Section 9 of Consumer Protection Act, 1986 (68 of 1986); (c) dispute between telegraph authority and any other person referred to in Sub-section (1) of Section 7B of the Indian Telegraph Act, 1885 (13 of 1885).' Sections 15, 16 and 19, which are in Chapter Iv, read as follows: '15. Filing of application to Authority and procedure for passing order by it- (1) An aggrieved person may make an application in respect of matters referred to in Sub-section (2) of Section 114 within such period as may be prescribed. Explanationn-For the purposes of this sub-section the expression 'aggrieved person' means- (i) any service provider who has a dispute in respect of matters referred to in Clauses (i) and (ii) of Sub-section (2) of Section 14; (ii) where any loss or damage is caused to a group of consumers, any member representing such group of consumers. (2) On receipt of an application made under Sub-section (1), the Authority may, after giving the parties an opportunity of being heard, pass such orders as it thinks fit preferably within a period of six months from the date of filing of such application and shall record reasons in writing if final order cannot be passed within the said period. (3) While arriving at a decision, the Authority shall record in writing the reasons for such decision. (4) Every decision of the Authority shall be published in the annual report of the Authority. (5) The orders and directions of the Authority shall be binding on the service providers, Government and all other persons concerned. 16. Procedure and powers of Authority (1) The Authority shall be guided by the principles of natural justice. (2) The Authority shall have, for the purpose of discharging their functions under this Chapter the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters; namely- (a) summoning and enforcing the attendance of any person and examining him on oath, (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte; (g) setting aside any order of dismissal of any application for default or any order passed by it ex parte; (h) any other matter which may be prescribed. (3) Every proceeding before the Authority shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purpose of Section 196 of the Indian Penal Code (45 of 1860), and the Authority shall be deemed to be a Civil Court for all the purpose of Section 195 and Chapter Xxvi of the Code of Criminal Procedure, 1973 (2 of 1974). 19. Orders passed by Authority or High Court to be executable as a decree.- Every order made by the Authority under this Ordinance or the order made by the High Court in any appeal against any order of the Authority shall, on a certificate issued by an officer of the Authority or the Registrar of the High Court, as the case may be, be deemed to be decree of Civil Court and shall be executable in the same manner as a decree of that Court.'
(9) I have carefully gone through the aforesaid provisions of the Ordinance and have considered the arguments submitted by the learned Counsel for the contending parties. I am of the view of this Court has jurisdiction to deal with this petition. The reasons are as follows:
(1)Section 11 of the Ordinance only provides for `functions of Authority' and one of the functions is to settle disputes between service providers. The term `disputes' has not been defined in the Ordinance. thereforee, it will have to be found as to what disputes between the service providers are to be settled by TRAI. thereforee, other provisions of the Ordinance will have to be seen. Clause (j) of Sub-section (1) of Section 11 will itself be not an answer to the question. (2) Chapter Iv is a chapter which specifically deals with settlement of disputes. This Chapter has Sections 14 to 20. Sub-section (1) of Section 14 provides for constitution of a Bench to adjudicate the disputes in respect of matters referred to in Sub section (2). Said Sub-section (2) says that the Bench constituted under Sub-section (1) shall exercise on and from the appointed date all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court on any matter relating to- (i) technical compatibility and inter-connections between service providers; (ii) revenue sharing arrangements between different service providers; (iii) quality of telecommunication services and interest of consumers.
(10) Proviso to this sub-section says that nothing in this sub-section shall apply in respect of matters relating to-
(A)the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under Sub-section (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969); (b) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission established under Section 9 of the Consumer Protection Act, 1986 (68 of 1986); (c) dispute between Telegraph Authority and any other person referred to in Sub-section (1) of Section 7B of the Indian Telegraph Act, 1885 (13 of 1885)'.
(11) Section 15 provides for filing of application to authority and procedure for passing order by it. This section again says that an aggrieved person may make an application in respect of the matters referred to in Sub-section (2) of Section 14. Thus, the Ordinance provides for filing of applications to Trai and procedure for passing order by it in respect of only those disputes which are within the domain of the matters referred to under Sub-section (2) of Section 14.
(12) Section 16 provides for procedure and powers of TRAI. Its Sub-section (2) specifically says 'The authority shall have, for the purpose of discharging their functions under this chapter, the same powers are vested in a Civil Court under the Code of Civil Procedure, 1908 in respect of the following matters, namely-
(A)summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions of the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte; (g) setting aside any order of dismissal of any application for default or any order passed by ex parte;- (h) any other matter which may be prescribed.
(13) Thus, under the Ordinance Trai has been vested with powers of a Civil Court in discharge of its functions under Chapter Iv only, that is to say, in adjudicating disputes between service providers in respect of matters referred to in Sub-section (2) of Section 14 only.
(14) No other chapter of the Ordinance deals with powers and procedure of Trai to adjudicate such disputes between service providers which are not covered under Sub-section (2) of Section 14. Had there not been chapter, Iv, with specific Section 14 it could perhaps successfully be argued that all disputes between service providers were to be adjudicated by the TRAI. But, in my view, when there is chapter Iv relating to settlement of disputes and Section 14 thereof speaks of constitution of a Bench to adjudicate disputes which may arise in respect of matters referred to in Sub-section (2), I see no difficulty in holding that the adjudicatory functions of Trai are limited to those matters which are stipulated in Sub-section (2) of Section 14. (3) Any contrary view may not be possible. A statute should be interpreted in a harmonious manner. If the contrary view is taken then we will have to divide disputes between service providers in two categories - (i) disputes specified in Sub-section (2) of Section 14, and (ii) disputes other than those specified in Sub-section (2) of Section 14.
(15) On going through the provisions of the Ordinance, as stated above, the Ordinance provides for constitution of a Bench, filing of application and procedure for passing order by Trai, time limit within which Trai has to give its final order and vesting of powers of a Civil Court in Trai only for disputes referred to in Sub-section (2) of Section 14 and while discharging its adjudicatory functions under Chapter Iv, the Trai will have those powers of a Civil Court which are specified in Sub-section (2) of Section 16. thereforee, if it is accepted that the second category of disputes are also to be settled by Trai then it may lead to a proposition that for those categories of disputes Trai will have no powers of a Civil Court; that there shall be no time limit for passing orders by TRAI; that proviso to Sub-section (2) of Section 14 shall not be in operation and that the second category of disputes shall be decided by all members of Trai instead of by its Bench consisting of its two Members only. I cannot see any reasonable classification for having such two categories of disputes for which there shall be two different provisions in the Ordinance. It could not have been the intention of the legislature. Chapter headings and sectional notes are internal aids to the interpretation of statutes. Heading of Chapter Iv and sectional notes of Section 14 aids to the inter relation I am taking. Together the intention of the Legislature relevant provisions of the whole Statute are to be read and not any particular section in isolation unless that section is complete by itself on the subject. I am, thereforee, of the view that there are no two categories of disputes and the disputes which are to be adjudicated by Trai are only those disputes which are in respect of matters referred to in Sub-section (2) of Section 14. To me the scheme of the Ordinance appears to be so.
(16) Learned Counsel for the respondent did not advance arguments that the present dispute between the petitioner and the respondent is covered by the matters referred to in Sub-section (2) of Section 14.
(17) Learned Counsel for the respondent invited my attention to an order dated 3.3.1997 of the Division Bench of this Court in Lpa 34/97. That order has disposed of the Lpa arising out of order of the learned Single Judge in Cm 1014/97 in Cw 594/97. Learned Counsel for the respondent asserts that the Division Bench in that order has accepted that all the disputes between service providers are to be adjudicated by Trai and the Civil Court has no jurisdiction. I do not agree with this assertion. Learned Counsel for the parties informed me that in the writ petition there was a dispute between Cellular Operator Association and Department of Telecommunication of Union of India in respect of certain rates which had been fixed by department of Telecommunications. The said writ was filed challenging those rates and Cm 1014/97 was moved for interim orders. That Cm was rejected and the petitioners in the writ petition filed the LPA. That Lpa was disposed of by making the following observations:
'AFTER hearing learned Counsel for the parties we are of the view that the petitioner or its members, as the case may be, should file a petition before the Trai raising the disputes set out in the writ petition or such other disputes which they propose to raise therein under Section 11(2) or under such other provisions of the ordinance and the Rules. We are adopting this course to enable the writ petitioner to avail the alternative remedy before the Trai which, in our view, is efficacious. We are also of the view that the matter is one of general importance and it should first be dealt with by the authority under the ordinance, with now consists of a retired Chief Justice of High Court and includes a technical member. Having regard to the importance of the questions raised, we are of the view, that the respondents should take all steps and render all necessary assistance to make the Authority functional at an early date so that the said Authority is able to hear and dispose of the matter expeditiously. The appeal stands disposed of. By consent of the parties the writ petition viz. Cw 594/97, which is pending before the learned Single Judge, also stands disposed of by this order. A copy of this order will be placed in the file of Cw 594/97. It will be open to the appellant to approach this Court for any further assistance or facilities.'
From the above it does not transpire that the Division Bench opined that all disputes between service providers are to be adjudicated by TRAI. In the order there is specific mention of Section 11(2) of the Ordinance which reads as follows:
'11(2)Notwithstanding anything contained in the Indian Telegraph Act, 1885, the Authority may, from time to time, by order, notify in the Official Gazette the rates at which the telecommunication services within India and outside India shall be provided under this Ordinance including the rates at which messages shall be transmitted to any country outside India: Provided that the Authority may notify different rates for different persons or class of persons for similar telecommunication services and where different rates are fixed as aforesaid the Authority shall record the reasons therefore.'
On reading of the aforesaid provisions it is clear that now after the Ordinance having come into force and the authority having been constituted it is the function of the Trai to notify in the Official Gazette the rates at which, the Telecom services within India and outside India shall be provided including the rates at which messages shall be transmitted to any country outside India. thereforee, since there was an alternative remedy available to the petitioners to approach Trai for getting the relief of modification of the rates, the Division Bench did not prefer to hear the dispute between the Cellular Operators Association of India and the Telecommunication Department of Union India in respect of the rates which had been fixed by the Telecommunications Department.
(18) In view of above I am not in agreement with the learned Counsel for the respondent that the said Division Bench has finally decided that all disputes between service providers shall be adjudicated by TRAI.
(19) Learned Counsel for the respondent also invited my attention to Section 27 of the Ordinance which reads as follows:
'27.Bar for jurisdiction No Civil Court shall have jurisdiction in respect of any matter which the Authority is empowered by or under this Ordinance to determine.' Since I have already held that only those disputes between service providers which are covered by Sub-section (2) of Section 14 are to be adjudicated by Trai and no other disputes. I do not see that the jurisdiction of this Court is barred under Section 27 because that section specifically says that the bar of jurisdiction of the Civil Court is only in respect of any matter which the authority is empowered by or under this Ordinance to determine.
(20) In view of aforesaid discussion I am of the view that this Court does not lack jurisdiction to deal with the petition under consideration. Since arguments were not heard on merits of the application, list on 21.4.1997 for hearing and disposal of this application.