REGISTERED NO. DL-33004/2000 The Gazette of India EXTRAORDINARY PART II — Section 1 PUBLISHED BY AUTHORITY No. 3] NEW DELHI, MONDAY, JANUARY 24,2000 / MAGHA 4,1921 Separate paging is given to this Part in order that it may be filed as a separate compilation. MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS (Legislative Department) New Delhi, the 24th January, 2000/Magha 4, 1921 (Saka) THE TELECOM REGULATORY AUTHORITY OF INDIA (AMENDMENT) ORDINANCE, 2000 No. 2 OF 2000 Promulgated by the President in the Fiftieth Year of the Republic of India. An Ordinance to amend the Telecom Regulatory Authority of India Act, 1997. WHEREAS Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action; Now, THEREFORE, in exercise of the powers conferred by clause (1) of article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:— 1. (1) This Ordinance may be called the Telecom Regulatory Authority of India Short title (Amendment) Ordinance, 2000. and com- mencement. (2) It shall come into force at once. 2 THE GAZETTE OP INDIA EXTRAORDINARY [PACT II— Amendment 2. In the Telecom Regulatory Authority of India Act, 1997 (hereinafter referred to as 24 of 1997. of long title, the principal Act), in the long title, for the words "Telecom Regulatory Authority of India to regulate the telecommunication services,", the words "Telecom Regulatory Authority of India and the Telecom Disputes Settlement and Appellate Tribunal to regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interests of service providers and consumers of the telecom sector, to promote and ensure orderly growth of the telecom sector" shall be substituted. Amendment 3. In section 2 of the principal Act,— • of section 2. (a) after clause (a), the following clause shall be inserted, namely:— '(aa) "Appellate Tribunal" means the Telecom Disputes Settlement and Appellate Tribunal established under section 14;'; (b) after clause (e), the following clause shall be inserted, namely:— '(ea) "licensor" means the Central Government or the telegraph authority who grants a licence under section 4 of the Indian Telegraph Act, 1885;'; 13 of 1885. (c) in clause (j), for the word "Government", the words "Government as a service provider" shall be substituted; (d) in clause (k), the following proviso shall be inserted, namely:— "Provided that the Central Government may notify other service to be telecommunication service including broadcasting services.". Amendment 4. In section 3 of the principal Act, for sub-section (3), the following sub-section of section shall be substituted, namely:— 3. "(3) The Authority shall consist of a Chairperson, and not more than two whole- time members and not more than two part-time members, to be appointed by the Central Government.". Substitution 5. For section 4 of the principal Act, the following section shall be substituted, of new namely:— section for section 4. Qualifi- "4. The Chairperson and other members of the Authority shall be appointed by the cations for Central Government from amongst persons who have special knowledge of, and appointment professional experience in, telecommunication, industry, finance, accountancy, law, of Chair- management or consumer affairs: person and other Provided that a person who is, or has been, in the service of Government shall not members. be appointed as a member unless such person has held the post of Secretary or Additional Secretary, or the post of Additional Secretary and Secretary to the Government of India or any equivalent post in the Central Government or the State Government for a period of not less than three years.". Amendment 6. In section 5 of the principal Act,— of section 5. (a) for sub-sections (2) and (3), the following sub-sections shall be substituted, namely:— SEC. I] THE GAZETTE OF INDIA EXTRAORDINARY 3 "(2) The Chairperson and other members shall hold office for a term not exceeding three years, as the Central Government may notify in this behalf, from the date on which they enter upon their offices or until they attain the age of sixty-five years, whichever is earlier. (5) On the commencement of the Telecom Regulatory Authority (Amendment) Ordinance, 2000, a person appointed as Chairperson of the Authority and every other person appointed as member and holding office as such' immediately before such commencement shall vacate their respective offices and such Chairperson and such other members shall be entitled to claim compensation not exceeding three months pay and allowances for the premature termination of the term of their offices or of any contract of service."; (b) in sub-section (5), for the words "other members", the words "whole-time members" shall be substituted; (c) after sub-section (6), the following sub-section shall be inserted, namely:— "(6A) The part-time members shall receive such allowances as may be prescribed."; (d) in sub-section (7), the words, brackets and figure "or sub-section (3)" shall be omitted; (e) in sub-section (8),— (0 in clause (b), for the words "two years", the words "one year" shall be substituted; (ii) after clause (b), the following proviso shall be inserted, namely:— "Provided that nothing contained in this sub-section shall apply to the Chairperson or a member who has ceased to hold office under sub-section (3) and such Chairperson or member shall be eligible for re-appointment in the Authority or appointment in the Appellate Tribunal.". 7. In section 7 of the principal Act, for sub-sections (2) and (3), the following sub- Amendment section shall be substituted, namely:— of section 7. "(2) No such member shall be removed from his office under clause (d) or clause (e) of sub-section (1) unless he has been given a reasonable opportunity of being heard in the matter.". 8. In section 10 of the principal Act, in sub-section (2),— Amendment of section (a) for the words "determined by regulations", the word "prescribed" shall be 10. substituted; (b) after sub-section (2), the following proviso shall be inserted, namely:— "Provided that any regulation, in respect of the salary and allowances payable to and other conditions of service, of the officers and other employees of the Authority, made before the commencement of the Telecom Regulatory Authority (Amendment) Ordinance, 2000, shall cease to have effect immediately on the notification of rules made under clause (ca) of sub-section (2) of section 35;". 4 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Amendment 9. In section 11 of the principal Act,— of section 11. (a) for sub-section (/), the following sub-section shall be substituted, namely:— "(1) Notwithstanding anything contained in the Indian Telegraph Act, 1885, the 13 of 1885. functions of the Authority shall be to— (a) make recommendations, either suo motu or on a request from the licensor, on the following matters, namely:— (i) need and timing for introduction of new service provider; (ii) terms and conditions of licence to a service provider; (iii) revocation of licence for non-compliance of terms and conditions of licence; (iv) measures to facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services; (v) technological improvements in the services provided by the service providers; (vi) type of equipment to be used by the service providers after inspection of equipment used in the network; (vii) measures for the development of telecommunication technology and any other matter relatable to telecommunication industry in general; (viii) efficient management of available spectrum; (b) discharge the following functions, namely:— (i) ensure compliance of terms and conditions of licence; (ii) notwithstanding anything contained in the terms and conditions of the licence granted before the commencement of the Telecom Regulatory Authority (Amendment) Ordinance, 2000, fix the terms and conditions of inter-connectivity between the service providers; (iii) ensure technical compatibility and effective inter-connection between different service providers; (iv) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services; (v) lay-down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of such service provided by the service providers so as to protect interest of the consumers of telecommunication service; (vi) lay-down and ensure the time period for providing local and long distance circuits of telecommunication between different service providers; SEC.l] THE GAZETTE OF INDIA EXTRAORDINARY 5 (vii) maintain register of interconnect agreements and of all such other matters as may be provided in the regulations; (viii) keep register maintained under clause (vii) open for inspection to any member of public on payment of such fee and compliance of such other requirement as may be provided in the regulations; (ix) ensure effective compliance of universal service obligations; (c) levy fees and other charges at such rates and in respect of such services as may be determined by regulations; (d) perform such other functions including such administrative and financial functions as may be entrusted to it by the Central Government or as may be necessary to carry out the provisions of this Act: Provided that the recommendations of the Authority specified in clause (a) of this sub-section shall not be binding upon the Central Government: Provided further that the Central Government shall seek the recommendations of the Authority in respect of matters specified in sub-clauses (0 and (ii) of clause (a) of this sub-section in respect of new licence to be issued to a service provider and the Authority shall forward its recommendations within a period of sixty days from the date on which that Government sought the recommendations: Provided also that the Authority may request the Central Government to furnish such information or documents as may be necessary for the purpose of making recommendations under sub-clauses (i) and (ii) of clause (a) of this sub-section and that Government shall supply such information within a period of seven days from receipt of such request: Provided also that the Central Government may issue a licence to a service provider if no recommendations are received from the Authority within the period specified in the second proviso or within such period as may be mutually agreed upon between the Central Government and the Authority: Provided also that if the Central Government having considered that recommendation of the Authority, comes to a prima facie conclusion that such recommendation cannot be accepted or needs modifications, it shall, refer the recommendation back to the Authority for its reconsideration, and the Authority may within fifteen days from the date of receipt of such reference, forward to the Central Government its recommendation after considering the reference made by that Government. After receipt of further recommendation if any, the Central Government shall take a final decision."; (b) in sub-section (3), for the words, brackets and figure "under sub-section (1)", the words, brackets and figures "under sub-section (1) or sub-section (2)" shall be substituted. 10 In section 13 of the principal Act, the following proviso shall be inserted, Amendment namely:- of section "Provided that no direction under sub-section (4) of section 12 or under this section shall be issued except on the matters specified in clause (b) of sub-section (1) | of section 11.". 6 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Substitution 11. For Chapter IV of the principal Act, the following Chapter shall be substituted, of new namely:— Chapter for Chapter IV. 'CHAPTER IV APPELLATE TRIBUNAL Establish- 14. The Central Government shall, by notification, establish an Appellate Tribunal to ment of be known as the Telecom Disputes Settlement and Appellate Tribunal to— Appellate Tribunal. (a) adjudicate any dispute— (0 between a licensor and a licensee; (ii) between two or more service providers; (iii) between a service provider and a group of consumers: Provided that nothing in this clause 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 (l) 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 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 (?) of section 7B of the Indian Telegraph Act, 1885; 13 of 1885. (b) hear and dispose of appeal against any direction, decision or order of the Authority under this Act. Application 14A. (/) The Central Government or a State Government or a local authority or any for settle- person may make an application to the Appellate Tribunal for adjudication of any ment of dispute referred to in clause (a) of section 14. disputes and appeals (2) The Central Government or a State Government or a local authority or any person to Appellate aggrieved by any direction, decision or order made by the Authority may prefer an Tribunal. appeal to the Appellate Tribunal. (3) Every appeal under sub-section (2) shall be preferred within a period of thirty days from the date on which a copy of the direction or order or decision made by the Authority is received by the Central Government or the State Government or the local authority or the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period. SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 7 (4) On receipt of an application under sub-section (1) or an appeal under sub-section (2), the Appellate Tribunal may, after giving the parties to the dispute or the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the dispute or the appeal and to the Authority, as the case may be. (<5) The application made under sub-section (7) or the appeal preferred under sub- section (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application or appeal finally within ninety days from the date of receipt of application or appeal, as the case may be: Provided that where any such application or appeal could not be disposed of within the said period of ninety days, the Appellate Tribunal shall record its reasons in writing for not disposing of the application or appeal within the said period. (7) The Appellate Tribunal may, for the purpose of examining the legality or propriety or correctness, of any dispute made in any application under sub-section (l), or of any direction or order or decision of the Authority referred to in the appeal preferred under sub-section (2), on its own motion or otherwise, call for the records relevant to disposing of such application or appeal and make such orders as it thinks fit. 14B. (7) The Appellate Tribunal shall consist of a Chairperson and not more than Composition two Members to be appointed, by notification, by the Central Government. of Appellate Tribunal. (2) The selection of Chairperson and Members of the Appellate Tribunal shall be made by the Central Government in consultation with the Chief Justice of India. (3) Subject to the provisions of this Act,— (a) the jurisdiction of the Appellate Tribunal may be exercised by the Benches thereof; (b) a Bench may be constituted by the Chairperson of the Appellate Tribunal with one or two Members of such Tribunal as the Chairperson may deem fit; (c) the Benches of the Appellate Tribunal shall ordinarily sit at New Delhi and at such other places as the Central Government may, in consultation with the Chairperson of the Appellate Tribunal, notify; (d) the Central Government shall notify the areas in relation to which each Bench of the Appellate Tribunal may exercise its jurisdiction. (4) Notwithstanding anything contained in sub-section (2), the Chairperson of the Appellate Tribunal may transfer a Member of such Tribunal from one Bench to another Bench. (5) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member of the Appellate Tribunal that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson to such Bench as the Chairperson may deem fit. 8 THE GAZETTE OF INDIA EXTRAORDINARY (PART II— Qualifica- 14C. A person shall not be qualified Tor appointment as the Chairperson or a tions for Member of the Appellate Tribunal unless he— appointment of (a) in the case of Chairperson, is, or has been, a Judge of the Supreme Court Chairperson or the Chief Justice of a High Court; and Members. (b) in the case of a Member, who has held the post of Secretary to the Government of India or any equivalent post in the Central Government or the State Government for a period of not less than two years or a person who is well versed in the field of technology, telecommunication, industry, commerce or administration. Term of 14D. The Chairperson and every other Member of the Appellate Tribunal shall hold office. office as such for a term not exceeding three years from the date on which he enters upon his office: Provided that no Chairperson or other Member shall hold office as such after he has attained,— (a) in the case of Chairperson, the age of seventy years; (b) in the case of any other Member, the age of sixty-five years. Terms and 14E. The salary and allowances payable to and the other terms and conditions of conditions service of the Chairperson and other Members of the Appellate Tribunal shall be such of service. as may be prescribed: Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or a Member of the Appellate Tribunal shall be varied to his disadvantage after appointment Vacancies. 14F. If, for reason other than temporary absence, any vacancy occurs in the office of the Chairperson or a Member of the Appellate Tribunal, the Central Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Appellate Tribunal from the stage at which the vacancy is filled. Removal 14G. (i) The Central Government may remove from office, the Chairperson or any and Member of the Appellate Tribunal, who- resignation. (a) has been adjudged an insolvent; or (b) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or (c) has become physically or mentally incapable of acting as the Chairperson or a Member; or (d) has acquired such financial or other interest as is likely to affect prejudicially his functions as the Chairperson or a Member; or (e) has so abused his position as to render his continuance in office prejudicial to the public interest. (2) Notwithstanding anything contained in sub-section (7), the Chairperson or a Member of the Appellate Tribunal shall not be removed from his office on the ground specified in clause (d) or clause (e) of that sub-section unless the Supreme SEC. I] THE GAZETTE OF INDIA EXTRAORDINARY 9 Court on a reference being made to it in this behalf by the Central Government, has, on an enquiry, held by it in accordance with such procedure as it may specify in this behalf, reported that the Chairperson or a Member ought on such ground or grounds to be removed. (3) The Centra) Government may suspend from office, the Chairperson or a Member of the Appellate Tribunal in respect of whom a reference has been made to the Supreme Court under sub-section (2), until the Central Government has passed an order on receipt of the report of the Supreme Court on such reference. 14H. (/) The Central Government shall provide the Appellate Tribunal with such Staff of officers and employees as it may deem fit. Appellate Tribunal. (2) The officers and employees of the Appellate Tribunal shall discharge their functions under the general superintendence of its Chairperson. (3) The salaries and allowances and other conditions of service of such officers and employees of the Appellate Tribunal shall be such as may be prescribed. 14-1. Where Benches are constituted, the Chairperson of the Appellate Tribunal Distribution may, from time to time, by notification, make provisions as to the distribution of the of business business of the Appellate Tribunal amongst the Benches and also provide for the amongst matters which may be dealt with by each Bench. Benches. 14J. On the application of any of the parties and after notice to the parties, and Power of after hearing such of them as he may desire to be heard, or on his own motion Chairperson without such notice, the Chairperson of the Appellate Tribunal may transfer any case to transfer pending before one Bench, for disposal, to any other Bench. cases. 14K. If the Members of a Bench consisting of two Members differ in opinion on Decision to any point, they shall state the point or points on which they differ, and make a be by reference to the Chairperson of the Appellate Tribunal who shall hear the point or majority. points himself and such point or points shall be decided according to the opinion of the majority who have heard the case, including those who first heard it. 14L. The Chairperson, Members and other officers and employees of the Appellate Members Tribunal shall be deemed to be public servants within the meaning of section 21 of etc., to be 45 of 1860. the Indian Penal Code. public servants. 14M. All applications, pending for adjudication of disputes before the Authority Transfer immediately before the date of establishment of the Appellate Tribunal under this Act, of pending shall stand transferred on that date to such Tribunal: cases. Provided that all disputes being adjudicated under the provisions of Chapter IV as it stood immediately before the commencement of the Telecom Regulatory Authority (Amendment) Ordinance, 2000, shall continue to be adjudicated by the Authority in accordance with the provisions contained in that Chapter, till the establishment of the Appellate Tribunal under the said Ordinance: Provided further that all cases referred to in the first proviso shall be transferred by the Authority to the Appellate Tribunal immediately on its establishment under section 14. 10 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Transfer of 14N. (7) All appeals pending before the High Court immediately before "The appeals. commencement of the Telecom Regulatory Authority (Amendment) Ordinance, 2000, shall stand transferred to the Appellate Tribunal on its establishment under section 14. (2) Where any appeal stands transferred from the High Court to the Appellate Tribunal under sub-section (7),— (a) the High Court shall, as soon as may be after such transfer, forward the records of such appeal to the Appellate Tribunal; and (b) the Appellate Tribunal may, on receipt of such records, proceed to deal with such appeal, so far as may be from the stage which was reached before such transfer or from any earlier stage or de novo as the Appellate Tribunal may deem fit. Civil court 15. No civil court shall have jurisdiction to entertain any suit or proceeding in not to have respect of any matter which the Appellate Tribunal is empowered by or under this jurisdiction. Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. Procedure 16. (7) The Appellate Tribunal shall not be bound by the procedure laid down by and powers the Code of Civil Procedure, 1908, but shall be guided by the principles of natural 5 of 1908. of Appellate justice and, subject to the other provisions of this Act, the Appellate Tribunal shall Tribunal. have powers to regulate its own procedure. (2) The Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit, in respect of the following matters, 5 of 1908. 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) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or a copy of such record 1 of 1872. or document, from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing an application for default or deciding it, ex parte; (h) setting aside any order of dismissal of any application for default or any order passed by it, ex parte; and (0 any other matter which may be prescribed. (5) Every proceeding before the Appellate Tribunal shall be deemed to be judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196 of the Indian Penal Code and the Appellate Tribunal shall be deemed to 45 of 1860. be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. 2 of 1974.