Telecom Regulatory Authority Of … vs M/S Bharti Airtel Ltd. And Ors. … on 6 November, 2020


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Supreme Court of India

Telecom Regulatory Authority Of … vs M/S Bharti Airtel Ltd. And Ors. … on 6 November, 2020

Author: Hon’Ble The Justice

                                                                                     1

                                   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)



                                               ORDER

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

respondents to disclose information/details sought by the appellant
16:55:55 IST
Reason:

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
(63rdAmendment) 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
3

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
order, TDSAT set aside the Telecom Tariff 63 rd 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.

4

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
7

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
8

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”.

17) The Telecommunication Tariff (17th Amendment) Order issued

on 22.01.2002 brought about some changes in “Reporting

Requirement” and amended the definition of the said expression.

The Telecommunication Tariff (21st Amendment) Order issued on
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13.06.2002 made further changes to Clause 7 which dealt with

Reporting Requirement.

18) By the Telecommunication Tariff (30th Amendment) Order

dated 16.01.2004, the definition of “Reporting Requirement” was

substantially modified, so as to include the principles of non­

discrimination and non­predation. This was amended by the 42 nd

Amendment Order dated 07.03.2006. The 52 nd Amendment Order

dated 19.09.2012, introduced a penalty clause to the Reporting

Requirement. Eventually the impugned order namely the 63 rd

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
10

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



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