CELLULAR OPERATORS ASSOCIATION OF INDIA AND ORS. v. UNION OF INDIA AND ORS.

A come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision B in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which c was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly."

To the same effect are also the observations of Lord Pearce at page 233, R. V. Fulham, Hammersmith and Kensington Rent Tribunal is yet another decision of a tribunal properly embarking on an enquiry, that is, within its jurisdiction, but at the end of its making an order in excess of its jurisdiction which was held to be a nullity though it was an order of the kind which it was entitled to make in a proper case.

The principle thus is that exclusion of the jurisdiction of the Civil F Courts is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy'to do what the courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. The word "jurisdiction" has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of

CELLULAR OPERATORS ASSOCIATION OF INDIA v. U.0.1. (S.B. SINHA J.) 263 the Act. Accordingly, a detennination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and, therefore, in excess of its jurisdiction."

In Union of India and Anr. v. Paras laminates (P) ltd., [ 1990] 4 SCC 453], this Court held as follows : B

"There is no doubt that the Tribunal functions as a court within the limits of jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognized as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The powers of the Tribunal are no doubt limited. Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and impliedly granted. The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. E As stated in Maxwell on Interpretation of Statutes (I I th edn.) "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution"."

Furthennore, TDSAT failed to advert unto itself to the following issues: F

(I) Non-compliance with Section l l(l)(a)(i) and (ii);

(2) Non-compliance with the fifth proviso by the authority in view of the divergence of opinion between recommendation dated 8th January, 2001 and guidelines made by the Government of India G on 25th January, 200 I;

(3) The issue of substitutability of cellular mobile service with WLL with limited mobility within the area ofSDCA like Delhi, Kolkata etc. particularly in a .case where the subscribers of cellular phone H

264 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A have not chosen to opt for the roaming facility.

Having regard to the assertions made by the appellants herein that 85% of its business is related to SDCA only and only 15% subscribers have roaming facility. TDSAT ought to have addressed itself on the issue as to whether one service is a substitute of the other or not. B TDSAT had also failed to give its findings on the following issues :

(I) That WLL with limited mobility with the existing service is a new service within the meaning of NTP-99; c (2) Whether it is within the policy or outside the policy amounting to a change in the policy;

(3) Whether the conditions attached by the authority and its recommendations dated 8th January, 200 I have been satisfied. D The Tribunal has opined that the technology may or may not be known as early as in 1994-95 but it proceeded to decide the issues only from the angle of consumers' interest. Consumers' interest is only one of the relevant factors. It by itself cannot be decisive. Consumers' interest is required to be taken into consideration only when it is found that the actions of the Central E Government as also the recommendation of Authority were within their respective jurisdiction.

TDSA T proceeded on the basis that the Central Government is entitled to change its own policy decision without taking into consideration the fact F that according to the Central Government itself it was merely a 'fine tuning of the policy' and not a change of policy.

The jurisdiction of the Central Government to effect change in the policy decisions was also in question. If a National policy had been adopted by the Cabinet, having regard to the provisions contained in Section 14 of the G General Clauses Act, although a change in the policy would be permissible, but the procedure laid down therefore were required to be followed. This aspect of the matter has also not been considered by the TDSA T.

In Union of India and Ors. v. Dinesh Engineering Corporation and H Anr., [2001] 8 sec 491, this Court even while exercising its power of judicial

CELLULAR OPERATORS ASSOCIATION OF INDIA v. U.0.1. [S.B. SINHA.).] 265 review laid down the law thus :- A "There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. B But then this does not mean that the courts have to abdicate their right to scrutinize whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. " C

In Home Secretaiy, U. T. of Chandigarh and Anr. v. Darshjit Singh Grewal and Ors., [1993] 4 SCC 25, this Court held as follows:

"It may be relevant to emphasise at this juncture that while the rules and regulations referred to above are statutory, the policy guidelines are relatable to the executive power of the Chandigarh Administration. It is axiomatic that having enunciated a policy of general application and having communicated it to all concerned including the Chandigarh Engineering College, the Administration is bo.und by it. It can, of course, change the policy but until that is done, it is bound to adhere to it."

Before TDSA T, the appellants argued that the decision of the Central Government was arbitrary. The said question was also not answered.

As regards the level playing field, the TDSAT did not refer to a large number of materials at all. It took a wrong decision that the appellants had conceded the power of the Central Government in the matter of change of policy and furthermore agreed thereto in the event, its offers are satisfied. ,. We may notice that most of the findings recorded by the TDSA T are not supported by any cogent reason. It arrived at some findings without referring to any material on records. As for example we may notice that it referred to a chart purported to have been handed over by Dr. Singhvi but the contents of the chart had not been disclosed. In any event, the materials on the basis whereof the chart was prepared had not been disclosed at all. H

266 SUPREME COURT REPORTS (2002) SUPP. 5 S.C.R.

A It failed to notice that the requirement of increasing tele-density in rural areas was not in question. What was questioned was that encroachment by the FSPs in the area which is said to be within the exclusive privilege of the cellular operators having regard to the provision of the NTP-99 and the terms and conditions of the licences issued to them. It also failed to arrive at any finding as to whether the concessions given to the appellants by the Central B Government were asked for by them or not and/or whether only because they received such concessions, they were estopped or precluded from raising the issues.

The learned TDSAT further failed to take into consideration the question as to whether the terms of offer made to the appellants as regards for providing fixed service were similar to those offered to the fixed service providers or not. It merely held that the appellants can use latest technology including WLL with limited mobility as also the respondents without taking into consideration the materials to the effect that the letters of the respondents to the authorities of the Central Government for giving the same facilities fell on deaf ears. Furthermore, the issue relating to the grant of concessions to the appellants may be held to be redundant if the purported decision of the Central Government/or the recommendations of the authority were illegal and without jurisdiction.

We have enumerated some of the issues raised before us only with a E view to highlight that the TDSAT did not pose unto itself the correct question.

The impugned order, therefore, cannot be sustained and it is set aside accordingly. The matter is remitted to TDSAT for consideration of the matter afresh in accordance with law. F Before parting with the case, we may notice that the learned counsel appearing on behalf of the respondents made strenuous attempts that this Court itself may enter into merit of the matter. However, having regard to the materials on record, we think that we should not do the same. This Coui1 in State of West Bengal and Ors. v. Nuruddin Mallick and Ors., (1998] 8 SCC G 143, observed as under :-

"Submission for the respondents was that this Court itself should examine and decide the question in issue based on the material on r~cord to set at rest the long-standing issue. We have no hesitation to decline such a suggestion. The courts can either direct the statutory H

CELLULAR OPERATORS ASSOCIATION OF INDIA 1•. U.0.1. [S.B. SINHA J.] 267

authorities, where it is not exercising its discretion, by mandamus to A exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be inappropriate for the Court to substitute itself for the statutory authorities to decide the matter."

The principles enunciated in the aforementioned case would also apply herein. B

S.K.S. Appeal allowed.