Full Judgment Text
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A.NO.46116 OF 2020
IN
CIVIL APPEAL NOs. 250252 OF 2019
TELECOM REGULATORY
AUTHORITY OF INDIA …APPELLANT(S)
VERSUS
M/S BHARTI AIRTEL LTD. AND ORS. ETC. …RESPONDENT(S)
O R D E R
1. Pending the appeals against the final order passed by Telecom
Disputes Settlement and Appellate Tribunal (hereinafter referred to
as ‘TDSAT’), the Telecom Regulatory Authority of India (hereinafter
referred to as ‘TRAI’), which is the appellant in the appeals, has
come up with this application for an interim direction to the
Signature Not Verified
Digitally signed by
Madhu Bala
Date: 2020.11.06
16:55:55 IST
Reason:
respondents to disclose information/details sought by the appellant
regarding segmented offers.
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2. We have heard Mr. Tushar Mehta, learned Solicitor General for
the applicant/appellant namely TRAI, Mr. Aspi Chinoy, learned
senior counsel for respondent.
3. Sans unnecessary details, the circumstances leading to the
present application can be summarised as follows:
a) In exercise of powers conferred by Section 11(1)(b)(i) read
with Section 11(2) of the Telecom Regulatory Authority of
India Act, 1997 (hereinafter referred to as the ‘Act’), TRAI
issued an order namely the Telecommunication Tariff
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(63 Amendment) Order, 2018 dated 16.02.2018;
b)
Challenging the said Tariff Order, Bharti Airtel Limited,
Idea Cellular Limited and Vodafone Mobile Services Limited,
filed appeals in Telecom Appeal Nos. 1, 2 and 3 of 2018
before the TDSAT;
c) Primarily, the challenge was to the “Reporting
Requirements” and “Significant Market Power” (for short
SMP). Yet another grievance was about the insistence of
TRAI about the disclosure of segmented discounts/
concessions;
d) Pending appeals before TDSAT, the Telecom Service
Providers sought interim stay of the Tariff Order. TDSAT
issued an interim arrangement on 24.04.2018 staying the
relevant clauses relating to the Reporting Requirements and
the definition of SMP. However, the Tribunal permitted TRAI
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to ask for details of segmented discounts/concessions for
analysis. At the same time the service providers were
exempted from disclosing the names of their customers and
other sensitive information;
e) Challenging the interim arrangement so issued by TDSAT
on 24.04.2018, TRAI filed writ petitions before the High
Court of Delhi. By a judgment dated 04.05.2018, the writ
petitions were dismissed, however with a request to the
Tribunal to dispose of the appeals as expeditiously as
possible;
f) Thereafter, TDSAT heard the appeals finally and allowed
them partially by a final order dated 13.12.2018. By this
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order, TDSAT set aside the Telecom Tariff 63 Amendment
Order in so far as it changes the concepts of SMP, Non
predation and the related provisions;
g)
It is against the said final order of TDSAT that TRAI has
come up with the above Civil Appeals;
h)
On 21.01.2019 the Appeals were admitted. However, on the
prayer for stay, this Court recorded:
“There will be no stay of the impugned judgment
except to the extent of remand”.
i) Thereafter the appellant namely TRAI has come up with this
application in I.A.No.46116 of 2020 seeking an interim
direction to the service providers to disclose information/
details sought by the appellant regarding the segmented
offers.
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4) On the basis of a chart filed as Annexure A5 indicating the
number of segmented offers provided by Telecom Service Providers
(for short TSPs) during a period of 12 calendar months from
January, 2019 to December, 2019 in various states, it is contended
by the applicant – TRAI, that the details of these offers are not even
disclosed to TRAI and that therefore, despite being a regulator, TRAI
is not in a position to analyse whether the plans are transparent
and nondiscriminatory and whether predatory pricing is resorted
to by TSPs in the garb of segmented offers or not. According to the
applicant, they requested the TSPs to provide information relating
to these offers, but the TSPs failed to disclose the information. It is
the contention of the applicant that the TSPs are under a statutory
obligation to offer tariffs in a transparent and nondiscriminatory
manner and to report all tariffs to the authority.
5) In response, it is contended by the TSPs that segmented offers,
as found by TDSAT in the impugned order, constitute
“confidentially designed trade practices”. Therefore, the TDSAT held
that there is no need for reporting. But at the same time TDSAT
allowed the applicant to seek from the TSPs, the number of
segmented offers made available to their existing customers, along
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with a declaration that the principles of nondiscrimination were
being followed. According to the respondents, they are complying
with the directions so issued in the impugned order.
6) It is also contended by the respondents that whenever the
applicantTRAI wanted to call for details of segmented offers about
which TRAI received complaints, the respondents are ready and
willing to furnish the same. However, so far TRAI has not received
any complaint. Therefore, it is contended by the respondents that
TRAI cannot seek such interim directions, especially after having
failed to secure a stay of the operation of the impugned order. The
respondents also contend that the grant of interim directions as
prayed for, would tantamount to allowing the appeal itself.
7) We have carefully considered the rival contentions and also
perused the pleadings and documents.
8) At the outset it should be pointed out that the jurisdiction and
power of TRAI to issue the Telecommunication Tariff Order dated
16.02.2018 was not seriously disputed at least in the appeal filed
by one of the TSPs. This is recorded in Para4 of the impugned
order.
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9) Though the jurisdiction and power of TRAI appears to have
been questioned in one of the appeals before TRAI, the TDSAT has
not recorded any categorical finding that TRAI had no jurisdiction
and power to demand details of segmented offers. All that TDSAT
found in Para18 of the impugned order is that segmented offers
and discounts offered in the ordinary course of business to existing
customers without any discrimination within the target segment, do
not amount to a tariff plan and that therefore there is no need for
reporting. The TDSAT held in this regard that the issue of
confidentiality has also to be taken note of.
10) After holding so, TDSAT recorded an important finding in
Para18 of the impugned order which reads as follows:
“…But the issue of nondiscrimination between the
same “segment” is too important to be ignored and that
would require reporting in any particular case when the
Authority has reasons to call for reporting any so called
segmented offers/discounts during a particular period.
Such power is ancillary and essential for effective
implementation of the principle of nondiscrimination
in the matter of all tariff plans…”
11) In the light of the aforesaid finding, TDSAT eventually ordered
the remand of the matter back to TRAI, for settling the issue of
segmented offers through open consultation process. If TRAI did not
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have any power to call for details regarding segmented offers and if
it was a case of complete lack of jurisdiction, the question of
remanding the matter back to the Authority would not have arisen.
12) The TSPs do not appear to be aggrieved by the order of remand
passed in respect of segmented offers. At least we are not informed
of the filing of any appeals by the TSPs against the impugned order.
Therefore, this is not a case of exercise by TRAI, of a power not at
all vested in them in law.
13) As far as confidentiality is concerned, the learned Solicitor
General agreed that the same should be preserved. By issuing
appropriate directions, confidentiality can be ensured.
14) The argument of the respondents that the prayer for stay of
operation of the impugned order was granted only to a limited
extent, at the time when the appeals were admitted, does not take
the respondents anywhere. In fact, the impugned order dealt with
several issues such as segmented offers, SMP, nonpredation etc.
The prayer for stay related to all the issues and the order of
remand. Therefore, the limited interim order passed on 21.01.2019,
at the time of admission of the appeals, does not operate as a fetter
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for the applicant to seek interim directions, limited to the extent of
disclosure of details relating to only one of the several issues.
15) For the very same reason as aforesaid, the argument of the
respondents that the grant of interim directions as prayed for would
tantamount to allowing the appeals, does not hold water. There are
several issues involved in the appeal. The interim directions now
sought are confined to only one of the several issues and what is
sought in respect of that issue is also only a limited direction.
16) As we have pointed out in the beginning, the
Telecommunication Tariff Orders are issued by TRAI in exercise of
the power conferred by Section 11(1)(b)(i) read with Section 11(2) of
the Act. The first Telecommunication Tariff Order was issued on
09.03.1999. Even the said Order contained provisions for Reporting
Requirement under Clause 7 and the definition of the expression
“Reporting Requirement”.
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17) The Telecommunication Tariff (17 Amendment) Order issued
on 22.01.2002 brought about some changes in “Reporting
Requirement” and amended the definition of the said expression.
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The Telecommunication Tariff (21 Amendment) Order issued on
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13.06.2002 made further changes to Clause 7 which dealt with
Reporting Requirement.
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18) By the Telecommunication Tariff (30 Amendment) Order
dated 16.01.2004, the definition of “Reporting Requirement” was
substantially modified, so as to include the principles of non
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discrimination and nonpredation. This was amended by the 42
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Amendment Order dated 07.03.2006. The 52 Amendment Order
dated 19.09.2012, introduced a penalty clause to the Reporting
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Requirement. Eventually the impugned order namely the 63
amendment Order dated 16.02.2018 was issued. The amended
definition of Reporting Requirement makes it clear that the
Reporting Requirement is for the information and record of the
TRAI.
19) In the light of the above historical background, what is now
sought by TRAI to ensure adherence to the regulatory principles of
transparency, nondiscrimination and nonpredation, cannot be
said, at least prima facie to be either illegal or wholly unjustified.
Hence the I.A. is allowed and a direction is issued to the
respondents to disclose information/details sought by the
applicant/appellant regarding segmented offers. But it is the duty
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and responsibility of TRAI to ensure that such information is kept
confidential and is not made available to the competitors or to any
other person.
20. I.A.No 46116 of 2020 is disposed of accordingly.
……………………………..CJI
(S.A. BOBDE)
……………………………….J.
(A.S. BOPANNA)
………………………………..J.
(V. RAMASUBRAMANIAN)
New Delhi
November 06, 2020