Supreme Court

Amardeep Singh Vs. Harveen Kaur

MANU/SC/1134/2017

12.09.2017

Family

Cooling off period mentioned in Section 13-B(2) of Hindu Marriage Act is not Mandatory

Factual matrix giving rise to instant appeal is that marriage between the parties took place on 16th January, 1994. Two children were born in 1995 and 2003, respectively. Since, 2008 the parties are living separately. Disputes between the parties gave rise to civil and criminal proceedings. Finally, on 28th April, 2017, a settlement was arrived at to resolve all the disputes and seeks divorce by mutual consent. The Respondent-wife is to be given permanent alimony of Rs. 2.75 crores. Accordingly, HMA was fled before the Family Court and statements of the parties were recorded. The Appellant-husband has also handed over two cheques of Rs. 50,00,000/-, which have been duly honoured, towards part payment of permanent alimony. Custody of the children is to be with the Appellant. They have sought waiver of the period of six months for the second motion on the ground that, they have been living separately for the last more than eight years and there is no possibility of their re-union. Any delay will affect the chances of their re-settlement. The parties have moved this Court on the ground that, only this Court can relax the six months period as per decisions of this Court. The question which arises for consideration in this appeal is whether the minimum period of six months stipulated under Section 13B(2) of Hindu Marriage Act, 1955 for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations.

There is conflict of decisions of this Court on the question whether exercise of power under Article 142 of Constitution to waive the statutory period under Section 13B of the Act was appropriate. In Manish Goel v. Rohini Goel, a Bench of two-Judges of this Court held that jurisdiction of this Court under Article 142 of Constitution, could not be used to waive the statutory period of six months for fling the second motion under Section 13B of Act, as doing so will be passing an order in contravention of a statutory provision. This Court noted that, power under Article 142 of Constitution, had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. This power was also exercised to put quietus to all litigations and to save the parties from further agony. Further, in Anjana Kishore v. Puneet Kishore, this Court was dealing with a transfer petition and the parties reached a settlement. This Court waived the six months period under Article 142 of Constitution in the facts and circumstances of the case.

Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the Court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) of Act, contains a bar to divorce being granted before six months of time elapsing after fling of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for re-conciliation.

The object of the provision is to enable the parties to dissolve a marriage by consent, if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that, forcible perpetuation of status of matrimony between un-willing partners did not serve any purpose. The object of the cooling of the period was to safeguard against a hurried decision, if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. The principle, as formulated in Justice G.P. Singh's "Principles of Statutory Interpretation", has been cited with approval in Kailash v. Nanhku and Ors. is to be applied in present case. On applying the same, Supreme Court is of the view that, where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2) of Act, it can do so after considering the following: i) the statutory period of six months specified in Section 13B(2) of Act, in addition to the statutory period of one year under Section 13B(1) of Act, separation of parties is already over before the first motion itself; ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 of Code of Civil Procedure/Section 23(2) of the Act/Section 9 of the Family Courts Act to re-unite the parties have failed and there is no likelihood of success in that direction by any further efforts; iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony.

The waiver application can be fled one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court. Since, Supreme Court viewed that, period mentioned in Section 13B(2) of Act, is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case, where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. In conducting such proceedings, the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice. The parties are now at liberty to move the concerned Court for fresh consideration in the light of this order. The appeal is disposed of accordingly.

Relevant

Manish Goel v. Rohini Goel MANU/SC/0106/2010
: (2010) 4 SCC 393, Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194, Kailash v. Nanhku and Ors. MANU/SC/0264/2005
: (2005) 4 SCC 480

Tags : Divorce Mutual consent Statutory period Waiver

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Supreme Court

Mihir Kumar Hazara Choudhury Vs. Life Insurance Corpn. and Ors.

MANU/SC/1133/2017

11.09.2017

Service

An employee, in discharge of his duties, is required to exercise higher standard of honesty and integrity

Present appeal is against the final judgment passed by the High Court whereby the Division Bench of the High Court allowed the appeal filed by the Life Insurance Corporation of India (Respondent No. 1 herein), set aside the order of the Single Judge and the award of the Tribunal and upheld the dismissal order passed by Respondent No. 1. Division Bench held that, the charges levelled against the Appellant stood proved and, in consequence, upheld the Appellant's dismissal order holding it to be commensurate with the gravity of the charges. The short question that arises for consideration in this appeal is whether the charges levelled against the Appellant (employee), as set out above, were proved in the departmental proceedings before the Enquiry Officer or/and before the Tribunal.

The charges can be held proved by mere reading of the Appellant's reply wherein he, in no uncertain terms, admitted that, he had issued the disputed premium/special premium receipts to the concerned policyholders and did not receive the amount from any of them. All he had said was that, such mistake occurred on his part due to heavy pressure of workload on him and some family circumstances/worries that were troubling him during those days which, was hardly any defence to the charges. Appellant himself requested for taking action against him with leniency. As would be clear, the Enquiry Officer had recorded a finding of fact that the action on the part of the Appellant was wilful and with mala fide intention to perpetrate the fraud on the Respondent (LIC) for wrongful personal gains.

The principle of natural justice was fully observed in departmental proceedings wherein the Appellant throughout participated. In view of reasons set out coupled with the findings of the Enquiry Officer, which Division Bench has rightly upheld, Supreme Court held that, the charges against the Appellant were proved not only on the strength of the admission of the Appellant in his reply but also independently with the aid of the evidence led by the LIC (Respondent No. 1) before the Enquiry Officer and later before the Industrial Tribunal.

An employee, in discharge of his duties, is required to exercise higher standard of honesty and integrity. In a case where he deals with the money of the depositors and customers, it is all the more necessary for him to be more cautious in his duties because he deals with the money transactions for and on behalf of his employer. Every such employee/officer is, therefore, required to take all possible steps to protect the interest of his employer. He must, therefore, discharge his duties with utmost sense of integrity, honesty, devotion and diligence and must ensure that he does nothing, which is unbecoming of an employee/officer. Indeed, good conduct and discipline are inseparable from the functioning of every employee/officer of any Institution and more when the institution deals with money of the customers. Any dereliction in discharge of duties whether by way of negligence or with deliberate intention or with casualness constitutes misconduct on the part of such employee/officer.

There is no defence available to a delinquent to say that there was no loss or profit resulting in a case when officer/employee is found to have acted without authority. The very discipline of an organization and especially financial institution where money is deposited of several depositors for their benefit is dependent upon each of its employee, who acts/operates within the allotted sphere as custodian of such deposit. Acting beyond one's authority by itself is a breach of discipline and thus constitutes a misconduct rendering the delinquent to suffer the adverse orders. Supreme Court opined that, having regard to the seriousness of the charges coupled with virtually no defence taken by the Appellant in answer to the charges and lastly, the findings of the Enquiry Officer, the punishment of dismissal was appropriate as provided in the service Regulations and hence, does not call for any leniency in awarding such punishment.

The departmental proceedings were conducted strictly in accordance with law by following the principle of natural justice in which the Appellant duly participated. The Appellant neither set up any defence nor denied the factum of charges, yet the Respondent proved the charges with the aid of relevant evidence, which found acceptance to the Division Bench and this Court too. Supreme Court dismissed the appeal.

Relevant

Damoh Panna Sagar Rural Regional Bank and Anr. v. Munna Lal Jain, MANU/SC/1081/2004
: (2005) 10 SCC 84, Disciplinary Authority-cum-Regional Manager and Ors. v. Nikunja Bihari Patnaik, MANU/SC/1578/1996
: 1996(9) SCC 69).

Tags : Departmental proceedings Dismissal Validity

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Supreme Court

Chandro Devi and Ors. Vs. Union of India (UOI) and Ors.

MANU/SC/1124/2017

08.09.2017

Civil

Fraud has to be pleaded and proved; mere allegations of fraud are not sufficient

Present appeal is against the judgment passed in Review Petition, whereby the Division Bench of the Delhi High Court dismissed the review petition and refused to recall the judgment passed in Letters Patent Appeal No. 513 of 2010, which was dismissed, upholding the judgment of the learned Single Judge. A number of writ petitions were filed by the Petitioners who were either ex-servicemen, who had suffered injuries during war or active service or had retired after rendering full service. Some of the Writ Petitioners like Chandro Devi (Appellant, herein) were family members of the deceased army personnel, who had died in war etc.

The original writ Petitioners were rehabilitated by allocating them shops in those colonies where defence personnel reside. These colonies were being managed by the Station Commander. In Delhi, such colonies are located at S.P. Marg, Delhi Cantt., Arjun Vihar, Dhaula Kuan, Shankar Vihar etc. It is not disputed that, as per the lease deed(s) entered between the writ Petitioners and the Station Commander, the leases were granted to the Petitioners only for a period of 11 months, but there was a Clause in the lease deed that it could be renewed. On 13th April, 2007 a policy was introduced, which provided that the lease should not be extended beyond 5 years under any circumstances. However, the persons whose leases were cancelled after 5 years could apply for grant of fresh lease after 3 years. The leases of the leaseholders were cancelled since they had held the shops on lease for more than 5 years. The Petitioners challenged non-renewal of their leases and claimed that they were entitled to renewal thereof. The learned Single Judge dismissed the writ petitions. The letter patent appeals filed by the lessees including the Appellant were dismissed by the Division Bench. Some of the original writ Petitioners filed special leave petitions before this Court, which were dismissed.

If there is fraud, which leads to passing of a judgment, then fraud vitiates all actions taken consequent to such fraud and this would mean that, the judgment would be set aside. However, before setting aside the judgment, Court must come to the conclusion that, the action was fraudulent. Every wrong action is not a fraudulent action. Assuming that the letter dated 4th September, 2008 was only a draft letter, it does not mean that this letter was fraudulently introduced by the Union of India. In the letter placed before the Court the word 'DGL' find mention. It may be true that, the counsel for the Union of India did not inform the Court that the words 'DGL' stood for 'Draft Government Letter', but, it is equally true that even the counsel for the Appellant did not make any efforts to find out what the words 'DGL' stood for. Even the Court did not look into this aspect. Fraud has to be pleaded and proved. Mere allegations of fraud made for the first time in this Court are not sufficient.

Clause 17 of the Standard Operating Procedure (for short 'SOP') dated 10th August, 2001, which even as per the Appellant was applicable provides that, Renewal of licence deed will be done on the recommendation of residential associations, which will be obtained three months in advance from the date of expiry of licence deed by DDA & QMG. If the recommendations are in favour of allottee, then the Station Commander may renew the licence deed for the subsequent year. However, the licence deed may be terminated at any time by the Station Commander at his discretion.

The main ground taken by the Appellant is that, in view of letter dated 25th February, 2005 the Station Commander had no authority to issue the second SOP for management and control of shopping complexes on 13th April, 2007. Vide letter dated 25th February, 2005, the Ministry of Defence proposed to take over the management of all shopping complexes and to frame guidelines in this regard, but as per Para 3 of this letter, amendments to Clause 2(v) would be applicable from 1st April 2005 or from the date when the guidelines/rules, as envisaged in Clause 2(vi) are framed, whichever is later. The Ministry of Defence issued Defence Shopping Complexes (Maintenance and Administration) Rules in the year 2006. It is the case of the Appellant herself that, these Rules are not applicable to shops constructed on defence lands by public funds. Therefore, as per the Appellant, these Rules are not applicable to the present case. Vide letter dated 4th September, 2008 the guidelines were circulated. The Appellant contends that, this was only a draft government letter and, therefore, these guidelines are also not applicable to them. If that be so, it clearly means that, no guidelines have been framed with regard to the shops on defence lands created out of government funds. If no fresh guidelines have been framed then amended Clause 2(v) would not come into play. Then SOP of 2001 would be applicable and that can be amended by the Station Commander himself. The SOP of 2007, provides that no shops will be leased out for a period of more than 5 years.

The learned Single Judge has made reference to Clause 17 of the SOP of 2001 and Clause 18 of the SOP of 2007 and held that, in terms of the above Clause 18, the right to get the licences renewed immediately on the expiry of five years has been withdrawn. The allottees are expected to apply again after a minimum break of three years. In terms of the revised policy, the Respondents issued letters to the Petitioners declining renewal of licences. The copies of letters requiring the Petitioners to vacate the shops under their occupation have been enclosed with the petition.

This judgment of the learned Single Judge was upheld by the Division Bench and also by this Court though in a petition filed by some other Petitioner. On going through the SOPs of 2001 and 2007, Supreme Court did not find that, the Appellant had any vested right to continue in possession even after 5 years. Even, as per the SOP of 2001, the Station Commander was to renew lease from year to year and there was no inherent right to continue as a lessee in perpetuity. These leases have been determined in a non-discriminatory and non-arbitrary manner. Supreme Court dismissed the appeal.

Tags : Lease Renewal Grant

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High Court of Bombay

Purushottam Sitaram Bakal and Ors. Vs. The State of Maharashtra

MANU/MH/2035/2017

07.09.2017

Criminal

Statements of a person who dies, are admissible, if the statements relate to the cause of death, or explain circumstances leading to the death

The Appellants faced trial for offence punishable under Sections 306 and 498-A read with Section 34 of Indian Penal Code, 1860 ('IPC'). They have been acquitted of offence punishable under Section 306 read with Section 34 of IPC and have been convicted of offence punishable under Section 498-A read with Section 34 of Indian Penal Code and are sentenced to suffer rigorous imprisonment for two years and to pay fine. The State is challenging the acquittal of the accused for offence punishable under Section 306 of IPC and accused are challenging the conviction under Section 498-A read with Section 34 of IPC.

The ingredients of Section 498-A of IPC are articulated in Girdhar Shankar Tawade v. State of Maharashtra. Thus, the basic purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislature: whereas Explanation (a) involves three specific situations viz. (I) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus, involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury; whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498-A of IPC.

Cruelty for the purpose of section 498-A of IPC is statutorily defined. Cruelty which may be constitute a matrimonial offence may not necessarily be the cruelty envisaged under Explanation (a) and (b) to Section 498-A of IPC. The evidence on record must be tested on the anvil of the statutory definition of cruelty and the articulation of the H Supreme Court on the scope and ambit of Section 498-A of IPC.

The prosecution case entirely rests on the testimony of the four family members of the deceased. The evidence of PW 1 on the ill-treatment, to the extent the evidence is hearsay, is not admissible and the said aspect shall be dealt with at a later stage in the judgment. The evidence is even otherwise too sketchy, general and grossly insufficient to prove cruelty within the meaning of Explanation (a) and Explanation (b) of Section 498-A of IPC.

The evidence which is based on what Deceased narrated is hearsay and is not admissible under Section 32(1) of the Indian Evidence Act, 1872. The prosecution has not proved that, Deceased committed suicide. PW1 asserts that, deceased narrated the instances of ill-treatment when she met her family members. The statements attributed to the deceased are clearly inadmissible, since the death of Sarswati is neither homicidal nor suicidal. Section 32(1) of Evidence Act, is an exception to the rule of hearsay and statements of a person who dies, whether the death is a homicide or a suicide, are made admissible if the statements relate to the cause of death, or explain circumstances leading to the death. Suicidal death is not proved, the statements attributed to deceased are not statement which are admissible under Section 32(1) of the Indian Evidence Act and to the extent the evidence of PW1 and other family members is hearsay, the evidence is clearly inadmissible.

The evidence of PW 2 is not only sketchy, vague and inherently unreliable due to proved omissions, the evidence is inadmissible since the evidence is entirely hearsay. PW2 is not a witness to the alleged ill-treatment. The ill-treatment is said to be narrated to her by the deceased. Similarly, the evidence of PW3 and PW4 is entirely hearsay and inadmissible.

The evidence of the family members of the deceased is mostly, if not entirely inadmissible and Section 32(1) of the Indian Evidence Act, does not come into play since cause of death or the circumstances leading to death was not an issue in so far as offence under Section 498-A of IPC, is concerned. However, even if the evidence is taken at face value, the prosecution has not established cruelty of the nature and extent which can be the basis of conviction under Section 498-A of IPC. Criminal Appeal is allowed and the accused are acquitted of offence punishable under Section 498-A read with Section 34 of IPC. Appeal filed by State is dismissed.

Relevant

Girdhar Shankar Tawade v. State of Maharashtra MANU/SC/0361/2002
: (2002) 5 SCC 177

Tags : Conviction Legality Circumstantial evidence

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Telecom Disputes Settlement and Appellate Tribunal

Dishnet Wireless Ltd. and Ors. Vs. S. Tel Pvt. Ltd. and Ors.

MANU/TD/0013/2017

07.09.2017

Media and Communication

Adjudicatory proceedings before Tribunal will not be affected by the provisions in the Companies Act

In present matters, execution applications have been filed and are pending. Matters are against S. Tel Pvt. Ltd. which is facing liquidation proceedings in Punjab & Haryana High Court, which has already appointed an Official Liquidator. The second group is of telecom and broadcasting petitions directed against Tulip Telecom Ltd. which is under liquidation as per proceedings in the Delhi High Court which has appointed the Official Liquidator in that matter. The third group consists of telecom petitions against Loop Mobile (India) Pvt. Ltd. against which liquidation proceedings are pending in Bombay High Court which has also appointed Official Liquidator. The order dated 6th July, 2017 further discloses that, as per stand of the Official Liquidator, a preliminary issue has arisen that, whether the Petitioners require to take permission of the High Court in the pending liquidation proceedings for proceeding with the present matters in the Tribunal in the light of Section 446 of the erstwhile Companies Act and Section 279 of the Companies Act 2013.

As per Sections 14 and 14A of Telecom Regulatory Authority Of India Act, 1997, this Tribunal has been vested with exclusive jurisdiction to adjudicate any dispute between a licensor and a licensee; between two or more service providers and between a service provider and a group of consumers, along with similar exclusive power to hear and dispose of appeal against any direction, decision or order of the Authority under the Act. The Central Government or a State Government or a local authority or any person can make an application for adjudication of any dispute covered by clause (a) of Section 14 of Act, only before the Tribunal. By virtue of Section 14M of Act, all applications, pending for adjudication of disputes before the Authority before the establishment of Appellate Tribunal got transferred to the Tribunal and under Section 14N of Act, all appeals pending before the High Court, before the commencement of the amendment Act, 2000 also got transferred to the Appellate Tribunal on its establishment under Section 14 of Act. Section 15 of Act, explicitly provides that, no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Appellate Tribunal is empowered by or under the Act to determine and no injunction shall be granted by any court or other authority in respect of action taken or to be taken in pursuance of any power conferred by or under the Act.

In the erstwhile Companies Act 1956, Section 446(1) of Act mandated that, upon making of a winding-up order or appointment of a provisional liquidator, no suit or other legal proceedings shall be commenced or if pending, shall be proceeded with, against the company, except by leave of the court. As per sub-section (2), the winding-up Court, notwithstanding anything contained in any other law for the time being in force, shall have jurisdiction to entertain or dispose of any suit or proceeding in respect of the company, whether such suit or proceeding has been instituted before or after the order for winding-up. Sub-section (3) provided that, any suit or proceeding by or against the company pending in any other Court, notwithstanding anything contained in other law for the time being in force be transferred to and disposed of by the winding-up court. Of course, these provisions would not apply to any proceeding pending in appeal before the Supreme Court or a High Court.

For the purpose of deciding the issue at hand, it is noticeable that there is no material change, when the contents of Section 446 of the erstwhile Companies Act are compared with conjoint provisions of Sections 279 and 280 of the Companies Act, 2013. Adjudicatory jurisdiction of this Tribunal is exclusive and special under the Act whose provisions conferring such power over the Tribunal must be construed as parts of a special statute. On the other hand, the relevant provisions of the Companies Act are clearly general part of a general statute governing the companies in general. Hence, it is held that the adjudicatory proceedings before this Tribunal will not be affected by the provisions in the Companies Act. As a consequence, these will be heard and decided by the Tribunal and the Petitioners are not required to approach the Winding-up Court for seeking any permission for that purpose.

Regarding execution proceedings, it is notable that there is nothing special or exclusive so far as this jurisdiction of the Tribunal is concerned. Section 19 of Act, merely enables the Tribunal under the Act, to execute its order as a decree of civil Court and for that, it can exercise all the powers of civil court. It also enables the Tribunal to transmit any order to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by that Court.

The procedure and power relating to execution are in most general terms and there is no requirement of any purposive interpretation to hold or declare this power to be exclusive or special power of the Appellate Tribunal. On the other hand, some of the beneficial provisions under the Companies Act, such as provisions for giving priority to the dues of the workers warrant a different view on this issue so that at the stage of execution, the purpose of special provisions in the Companies Act creating priorities in favour of workmen in respect of their dues and also in favour of secured creditors are preserved and promoted. Hence, in the executions proceedings, the applicants will have to seek leave of the Tribunal under Section 279 or they can seek leave of this Tribunal for transfer of execution proceedings to the execution Court/Tribunal which shall have jurisdiction to entertain and dispose of such proceedings under Section 280(a) of the Companies Act. The preliminary issue is decided accordingly. Applicants in the Executions Applications shall take required steps in the light of this order at an early date.

Tags : Execution proceedings Jurisdiction

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High Court of Delhi

Vodafone India Ltd. and Ors. Vs. Telecom Regulatory Authority of India

MANU/DE/2623/2017

04.09.2017

Media and Communication

A mandamus would be issued to only to enforce a legal right

The Petitioners have filed the present petition, praying for issue an appropriate Writ, order and/or direction including an order, direction or writ in the nature of mandamus under Articles 226/227 of the Constitution directing the Respondent TRAI to forthwith provide to/share with the Petitioners the cost model proposed to be used in deciding/determining IUC and particularly Mobile Termination Charges (MTC)/issuance of the IUC Regulation. Further, to direct TRAI not to proceed with the present consultation process and/or issue any Regulation, pursuant to its Consultation Paper dated 5th August, 2016, without first providing/sharing the proposed cost models to the Petitioners and without first considering and examining the Petitioners comments/inputs thereon and further to provide reasons for disagreement thereto,

The Petitioners have been granted Unified Access Services/Unified Licences under Section 4 of the Indian Telegraph Act, 1885 for establishing and maintaining telecommunication services in various service areas. In terms of the unified licence, the Petitioners are obliged to interconnect with other telecom service providers at Point of Interconnection (POI) subject to compliance of prevailing regulations and directions issued by Telecom Regulatory Authority of India (TRAI). The Unified Licence further provides that, the charges for accessing other networks for inter-networks calls would conform to the orders/regulations/guidelines issued by the TRAI/licensor from time to time. Article 27.5 of the Unified Licence, provides that "the charges for accessing other networks for inter-network calls shall be based on mutual agreements between the service providers conforming to the Orders/IUC Regulations/Guidelines issued by the TRAI from time to time.

It is settled law that a mandamus would be issued to only to enforce a legal right. Concededly, the exercise to review the regulations which is being conducted by TRAI is a legislative exercise and not a judicial or an administrative proceeding. Therefore, the right of the Petitioners for information and the models proposed to be adopted by TRAI must be considered in the said context. Concededly, the Petitioners have no statutory right to the information sought by them and their case rests on the provisions of Section 11(4) of the TRAI Act.

It is apparent that, TRAI has held consultations with all stakeholders in a transparent manner. The mandate that, TRAI shall ensure transparency while exercising its powers and discharging its functions has to be read in the context of the functions being performed and/or powers being exercised by TRAI. In terms of Section 11(1) (a) and (b) of TRAI Act, TRAI also performs certain recommendatory and regulatory functions. It is settled that the principles of natural justice (such as affording a hearing to the affected parties) is not a necessary adjunct to legislative functions.

Certain legislations provide for previous publication of rules/byelaws and in terms of Section 23 of the General Clauses Act, 1897, the Authority having power to make rules or byelaws is required to publish a draft of the proposed rules or byelaws. Section 36 of the Act - which empowers the TRAI to make regulations to carry out the purposes of the Act - does not contain any such requirement of previous publication or placing draft regulations in public domain for inviting objections and suggestions. Thus, it is not necessary that TRAI present a set of draft regulations for comments by the stakeholders and hear them before proceeding further.

The expression "transparency" in legislative action must signify an open and transparent legislative exercise, which in present case has been fully complied with. All stakeholders have been informed that, the TRAI had initiated a review of the Inter-connection Usage Charges. TRAI has issued a consultation paper and has invited comments and views from all stakeholders. The views/comments received from all stakeholders have also been put in public domain for counter comments. TRAI is now proceeding further to frame the regulations based on the comments/views received and material gathered. Indisputably, consultation is a necessary facet of transparency (as held by the Supreme Court in Cellular Operators Association of India and Others v. Telecom Regulatory Authority of India and Others), however the extent and the manner of such consultation depends on the function being performed. The requirement and scope of consultation in the context of an administrative action is materially different from that in the context of a legislative action.

The requirement of consultation has been interpreted by the Supreme Court in several decisions in the context of the statute providing for such requirement. In Hindustan Zinc Ltd. v. A.P. State Electricity Board, the Supreme Court considered a challenge to a revision of a tariff for electricity, which was effected without consulting the Consultative Council. The Court held that, the advice Consultative Council was at best only persuasive and thus the revision of tariff without seeking the advice of Consultative Council could not be rendered invalid.

In Ram Tawakya Singh v State of Bihar, the Supreme Court observed that, "The word 'consult' implies a conference of two or more persons or impact of two or more minds in respect of a topic/subject. Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points to evolve a correct or satisfactory solution. Consultation may be between an uninformed person and an expert or between two experts. In either case, the final decision is with the consult or, but he will not be generally ignoring the advice of the consultee except for good reasons."

There can be no fixed formula for the manner in which consultation is required to take place. Administrative acts may require deliberation between the two parties and a higher level of interaction. However, the same would not hold true in case of a legislative exercise. Thus, this Court is of the view, that TRAI has conformed to the requirement of transparency as mandated under Section 11(4) of the Act and did not fall foul of the said provision in declining the Petitioner's request for disclosure of cost model at this stage. The petition is dismissed.

Relevant

Hindustan Zinc Ltd. v. A.P. State Electricity Board : MANU/SC/0340/1991
: (1991) 3 SCC 299, Ram Tawakya Singh v State of Bihar, Cellular Operators Association of India and Others v. Telecom Regulatory Authority of India and Others

Tags : Cost Model Disclosure Right

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