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2003 DIGILAW 401 (KER)

Stephen George M. L. A. v. Union of India

2003-06-23

A.K.BASHEER, JAWAHAR LAL GUPTA

body2003
JUDGMENT Jawahar Lal Gupta, C.J. 1. Does the impugned revision of tariff, which fixes the pulse rate at sixty seconds for a call from landline phone to a mobile phone, violate Art.14 and 19 of the Constitution? And (ii) Is the revision calculated to help the private provider of service and thus, malafide? These are the basic issues that arise in the two writ petitions. The petitioners in these two cases are Members of the Kerala Legislative Assembly. They question the validity of the notifications issued by the Telecom Regulatory Authority of India and the Bharat Sanchar Nigam Limited. The counsel have referred to the averments in O.P.No. 15016 of 2003. These may be briefly noticed. 2. The petitioners allege that the Bharat Sanchar Nigam Limited (hereinafter referred to as the Nigam) has the monopoly in providing telephone services in the country. Initially, the service was being provided by the Central Government through the Department of Telecommunications. In pursuance to the policy of liberalisation, the Government "surrendered even the basic service industries to the private sector". The Nigam was formed as a Corporation. It continues to be under the control of the Central Government. The telephones are installed under the provisions of the Indian Telegraph Act, 1885. Under S.6(a), the power to fix the rates was vested in the Central Government. 3. In the year 1997, the Telephone Regulatory Authority of India Act, 1997, was promulgated under S.3 of the Act, a provision for the establishment and incorporation of the 'Authority' has been made. S.11 provides for the functions of the Authority. 4. The 1997 Act does not repeal the 1885 Act or the Rules framed thereunder. The Central Government or the Nigam are not bound to accept the recommendations of the Regulatory Authority. 5. The Nigam had announced rates vide its circular dated April 13, 1999. These were fixed under the new Telecom Policy of 1999. This policy introduced a distinction between the rural and the urban subscribers. The rates as fixed under this Policy remained applicable till April 30, 2003. With effect from May 1, 2003, the new rates were introduced. 6. After the year 1999, a number of changes were made. One of these was the j decision to grant permission to the private sector to enter the field of telecommunication. Thus, Air Tel, BPL, Escotel and Reliance etc. With effect from May 1, 2003, the new rates were introduced. 6. After the year 1999, a number of changes were made. One of these was the j decision to grant permission to the private sector to enter the field of telecommunication. Thus, Air Tel, BPL, Escotel and Reliance etc. were given the right to provide mobile telephone services. Though belatedly, the Nigam also entered the field of mobile telephone service. Nevertheless, the rendering of service remained through the network of the BSNL as the private mobile operators did not have their own facility to offer to the caller". They depended on the infrastructure provided by the Nigam itself. Crores of rupees are due to the Nigam from the private operators. 7. The mobile phones become popular. However, "for the common people of India who cannot afford a mobile phone, the land phone remains the only means of communication". For this facility, the Nigam has the monopoly. A large number of land phones have been installed in the State of Kerala. Today, "even commoners have started using mobile phones". Resultantly, there has been a spurt in the business of selling mobile phones, particularly by the private companies. These companies "have tremendous influence over the Government and in particular, the honourable Minister in charge of Telecommunication Department. The influence commanded by the Reliance group of industries on the present Central Government is no longer a secret". 8. On January 24, 2003 the Telecom Regulatory Authority of India issued two notifications Nos. 3062/2003 Econ. and 3111/2003 Econ. By these notifications new tariff alongwith alternative packages were introduced. In pursuance to these notifications, the Nigam issued an order dated April, 11,2003. With this circular a tariff card was enclosed. The new tariff rates were notified. These were to be implemented with effect from May 1, 2003. A copy of the circular has been produced as Ext. P1. The tariff card effective from May 1,2003 is at Ext. P2. Thus, a new tariff had come into force "increasing the charges per pulse geometrically and reducing the number of free calls from land phones". By this, the pulse rate was reduced from 3 minutes to 30 seconds. As a result, the "caller will have to pay six times the previous rate" for a call to a mobile telephone. P2. Thus, a new tariff had come into force "increasing the charges per pulse geometrically and reducing the number of free calls from land phones". By this, the pulse rate was reduced from 3 minutes to 30 seconds. As a result, the "caller will have to pay six times the previous rate" for a call to a mobile telephone. Along with this, the free calls were reduced to 50 per month in rural areas and 30 in urban areas. This will necessarily "lead to less use of the land phones and more use of mobile phones". 9. The action of the Nigam was criticised by the public as a part of an attempt to help the "influential mobile telephone manufactures". Even the ruling party members had raised objections. The people of Kerala will be adversely affected by the increase in the rates. 10. As an elected Member of the Kerala Legislative Assembly, the petitioner raised the issue and called upon the Nigam to reduce the increased rates. It is alleged that the revision in rate is "patently violative of the fundamental rights enjoyed by the petitioner and other citizens which guaranteed rights to communicate, right to information, right to receive the same and the fundamental right to freedom of expression". The revised rates are "exorbitant and disproportionate with the existing rates". It has adversely affected the petitioner. It is bound to affect "the budget of numerous families of Keralites.... and completely upset the monthly expenditure pattern". It is violative of Articles 14, 19 and 21". On these premises, the petitioner had initially made a prayer that the notification No. 3062/2003/Econ. dated 2412003 as well as the circular at Ext. P1 and tariff card at Ext. P2 be quashed. 11. A counter affidavit was filed on behalf of respondents 3 and 4, viz., the Nigam and its Principal General Manager at Thiruvananthapuram. It was inter alia averred that "the economic policy of the State/matters of price fixation etc. are not normally subject to judicial review under Art.32/226 of the Constitution of India". A public interest litigation could not be initiated to challenge the economic decisions unless there was violation of Art.21 and the persons who were adversely affected were unable to approach the court. Still further, the principles governing O.39 R.1 CPC were involved. It was pleaded that an interim relief should not be granted. A public interest litigation could not be initiated to challenge the economic decisions unless there was violation of Art.21 and the persons who were adversely affected were unable to approach the court. Still further, the principles governing O.39 R.1 CPC were involved. It was pleaded that an interim relief should not be granted. On merits, it was submitted that under S.11 of the 1997 Act, the Regulatory Authority can notify the rates. In exercise of the statutory power, the Authority had issued the notification. On the basis of the notification, the Nigam had prescribed tariff vide circular dated April, 2003. Under S.14 of the Act, an appellate tribunal had been established to "adjudicate disputes". The provision provided an effective alternative remedy to the aggrieved person. Still further, appeal could be filed under S.18 against the order of the appellate tribunal to Hon'ble the Supreme Court. It was also pointed out that the notification at Ext. P2 had been reconsidered. A modified order had been issued "reducing the rates substantially in all the services". A copy of the notification was produced as Ext. R3(a). 12. During the pendency of the case, CMP No. 25582 of 2003 was filed to place on record the revised tariff order issued by the Nigam on May 13, 2003. By this the pulse rate in the rate of basic to cell was changed from 30 seconds to 60 seconds. A copy was produced as Ext. P3. An additional prayer for quashing this rate was also made. 13. On May 26, 2003 an additional counter affidavit was filed on behalf of the respondents by the General Manager, Thiruvananthapuram. In view of the fact that a more detailed counter affidavit was filed on behalf of respondent Nos. 3 and 4 on June 2, 2003, it is not necessary to notice the averments in this affidavit in detail. 14. In the counter affidavit, the respondents have averred that the Nigam is a private limited company owned by the Central Government. It is one of the premier agencies providing various facilities. Besides the Nigam, the Mahanagar Telecom Nigam Ltd., Bharathi Tele Net, HFCL Infotel, Tata Tele Service, Maharashtra, Reliance Infocom Ltd., and Shyam Tele Link are also providing landlines in various parts of the country. It is one of the premier agencies providing various facilities. Besides the Nigam, the Mahanagar Telecom Nigam Ltd., Bharathi Tele Net, HFCL Infotel, Tata Tele Service, Maharashtra, Reliance Infocom Ltd., and Shyam Tele Link are also providing landlines in various parts of the country. According to the statistics published in the Tele Net Magazine in the issue dated March 1, 2003, the total number of landlines provided by the private operators is 6,83,955. Thus, the suggestion that the Nigam has a monopoly has been controverted. 15. It is not disputed that prior to the promulgation of the 1997 Act, the rates for telephone services were being fixed by the Central Government under the 1885 Act. However, in view of the growth in the telecommunication sector as well as the advances in technology and the entry of private operators, it was considered essential to constitute a statutory body for regulating the services. With this object in view, the 1997 Act was promulgated. It is a special law. The Act governs all matters covered by its provisions. It is not contrary to the 1885 Act or the Rules framed thereunder. S.11 begins with a non obstante clause. Still further, relying upon the decision of their Lordships of the Supreme Court in S. Narayan Iyer v. Union of India& anr. ( AIR 1976 SC 1986 ), it is contended that "the courts have no jurisdiction under Art.226 to go into the reasonableness of telephone tariff rates". So far as the present case is concerned, it has been pointed out that the Regulatory Authority had initially issued "the Telecommunication Tariff Order, 1999". On January 24, 2003, the 24th amendment to the Tariff Order, 1999 was issued. A copy has been produced as Ext. R3 (a). 16. S.36 empowers the Authority to make regulations "to carry out the purpose of the act". In exercise of this power, the Authority had issued "the Telecommunication Inter Connection Usage Charges (IUC) Regulations, 2003" on January 24, 2003. A copy of the regulations has been produced as Ext. R3(b). Under these regulations, it has been inter alia provided that "when a call is made from the land line to a mobile, the land line operator will collect charges and will reimburse both the transit call carrying operator as well as the terminating call operator". The manner and method has also been provided for. R3(b). Under these regulations, it has been inter alia provided that "when a call is made from the land line to a mobile, the land line operator will collect charges and will reimburse both the transit call carrying operator as well as the terminating call operator". The manner and method has also been provided for. It has been pointed out that a call of 180 seconds from a BSNL land phone to a mobile phone will now cost Rs. 3.60. Out of this, an amount of 60 Paise per minute has to be reimbursed "to the transit call operators and the terminating call operators for use of their net work". Prior to May 1, 2003 "instead of originating call operator collecting the charges for usage of a network as indicated above, the mobile operator was collecting charges for incoming calls from his own customer". It was on consideration of the entire issue that the Authority "which is comprised of experts in the field of Telecommunications took considered decision after consultation with all interested including representatives of the users.... that no charge is to be levied by the mobile operators for incoming calls". On this basis, it is maintained that the charges levied by the Nigam are not exorbitant and that there is no violation of Art.14. 17. The allegation that the private operators have got tremendous influence over the government "is absolutely incorrect and made without any basis" The averments are "vague and uncertain". No specific material has been placed on record to substantiate the suggestion. The person against whom malafide is alleged has not even been made a party in the petition. The grounds as raised in the petition have been controverted. It also has been asserted that the rates as revised by the Nigam had been approved by the Authority vide its letter dated May 13, 2003. 18. The petitioner has filed affidavits in reply to the counter affidavits. In the affidavit dated May 16, 2003, it was inter alia alleged that the respondents were acting in violation of the interim order passed by the Vacation Bench. In the subsequent affidavit dated May 27, 2003 the petitioner had reiterated his earlier averments. Still further, an additional affidavit was filed on May 30, 2003 by the petitioner. It was alleged that despite the interim order the Nigam was charging at the revised rate. In the subsequent affidavit dated May 27, 2003 the petitioner had reiterated his earlier averments. Still further, an additional affidavit was filed on May 30, 2003 by the petitioner. It was alleged that despite the interim order the Nigam was charging at the revised rate. A large number of people were surrendering their land phones, as the rate for making calls was exorbitant. Newspaper reports had been published in various local papers. The intention of the Nigam "is to subvert their own phones and subserve the interests of the mobile operators like Reliance, Escotel, BPL and Air Tel etc. etc." The Nigam should not be permitted to lay down a steep rise and fix exorbitant rates of tariff". A copy of the advertisement issued by Escotel was produced to show that the subscribers were surrendering their land phones. 19. These are the pleadings of the parties. 20. The arguments in these cases were heard on June 10, 2003. The order was reserved. However, during the course of arguments, learned counsel for the respondents had contended that the petitioner had not challenged the notification No. 3111/2003/ Econ. dated 2412003. Thereupon, IA No. 3985 of 2003 was filed for amendment of the prayer in the petition. Notice of this application was given. The Counsel for the parties were heard on June 16, 2003. The applications for amendment of the petition were allowed. However, the counsel did not raise any additional argument. 21. On behalf of the petitioners, the case was primarily argued by Mr. Ram Kumar. It was contended that the rates as fixed by the Nigam were arbitrary and exorbitant. The differential in tariff was based on the use of an instrument. The rates placed an unreasonable restriction on the freedom of communication and information. The Regulatory Authority had not followed the prescribed procedure. Thus, the impugned orders deserve to be annulled. 22. On the other hand, Mr. Sreedharan Pillai, learned counsel for the respondents submitted that the revision of rates was not arbitrary or unfair. The reasons have been duly disclosed. The fixation of rates was primarily a question of policy. There was no violation of law. The rates have been fixed in accordance with the directions of the Regulatory Authority. Thus, the petitions are not maintainable. In any case, even on merits the petitioners have no cause to complain. The reasons have been duly disclosed. The fixation of rates was primarily a question of policy. There was no violation of law. The rates have been fixed in accordance with the directions of the Regulatory Authority. Thus, the petitions are not maintainable. In any case, even on merits the petitioners have no cause to complain. It was also submitted that an aggrieved party has an effective remedy under the Act. Thus, the counsel contended that the petitions deserve to be dismissed. 23. After hearing learned counsel for the parties, we find that the following questions arise for consideration: 1. Is the impugned action arbitrary and violative of Art.14 of the Constitution? 2. Is the impugned action violative of Art.19 of the Constitution? 3. Does the impugned action suffer from the vice of malafides? Regarding (1) 24. Mr. Ram Kumar contended that the rates are exorbitant. The differential in rates is based on the kind of instrument used by the subscriber. Thus, the action suffers from the vice of discrimination. The counsel also submitted that the tariff is arbitrary. Thus, it violates Art.14. Consequently, it deserves to be annulled. Is it so? 25. First a peep in to the legislative events. The Indian Telegraph Act 1885 is the legacy of the English era. Under this Act, the Central Government had the "exclusive privilege of establishing, maintaining and working any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions...." Under S.5 the Government was even competent to "take possession of licensed telegraphs and to order interception of messages" on the occurrence of any public emergency or in the interest of public safety. In the very nature of things the government which was providing the facilities was also entitled to fix the rates. It was in the year 1971 that clause 6(A) was inserted to empower the Central Government to notify the rates and conditions at which messages shall be transmitted to any country outside India. The Central Government had the power to frame rules etc. 26. With the passage of time the 1885 Act had virtually become archaic and obsolete. It was not designed to meet the advances in technology. The changing scenario necessitated the promulgation of a new law. The Central Government had the power to frame rules etc. 26. With the passage of time the 1885 Act had virtually become archaic and obsolete. It was not designed to meet the advances in technology. The changing scenario necessitated the promulgation of a new law. Thus, the Parliament enacted the Telecom Regulatory Authority of India Act, 1997. The basic object of the Act is "to provide for the establishment of the Telecom Regulatory Tribunal to regulate the telecommunication services, adjudicate disputes or appeals and to protect the interests of service providers and consumers of the telecom sector, to promote and ensure orderly growth of telecom sector and for matters connected therewith or incidental thereto". 27. S.3 of the Act deals with the establishment and incorporation of the Authority. It is a body corporate having perpetual succession. Under S.4, the Chairperson and the members have to be appointed by the Central Government "from amongst persons who have special knowledge of arid professional experience in telecommunication, industry, finance, accountancy, law, management or consumer affairs". A person who is or has been in the service of the Government cannot be appointed as a member unless he has held a post of Secretary or Additional Secretary or any equivalent post in the Central or State Governments for a period of not less than three years. 28. S.11 delineates the functions of the Authority. The provision entitles the Authority to make recommendations in respect of various matters including measures for the development of communication technology and efficient management of available spectrum. Under S.11(b)(iv) it is required to "regulate arrangements amongst service providers of sharing their revenue derived from providing telecommunication services". Under clause (c) it is competent to "levy of fees and other charges on such rates and in respect of such services as may be determined by regulations". The Authority has power to call for information and issue directions. In Chapter V, provisions were also made for grants by the Central Government, the creation of a fund, the maintenance and audit of accounts and furnishing of returns etc. to the Central Government. Still further, various other miscellaneous provisions necessary for the achievement of the object including the power to make rules and regulations were also made. 29. On January 24, 2003 a notification was issued. By this notification, the Telecommunication Tariff (24th Amendment) Order 2003 was issued. A copy has been produced as Ext. to the Central Government. Still further, various other miscellaneous provisions necessary for the achievement of the object including the power to make rules and regulations were also made. 29. On January 24, 2003 a notification was issued. By this notification, the Telecommunication Tariff (24th Amendment) Order 2003 was issued. A copy has been produced as Ext. R3(a). This notification was issued in exercise of the powers under S.11(2) of the Act. In this order, it was inter alia provided that the "tariffs as contained in Schedules I and II under S.3 of the Telecommunication Tariff Order, 1999 shall stand deleted and substituted as specified in the Schedules I and II hereto". An explanatory memorandum was attached to the order. It was inter alia mentioned that the Tariff Order "is an outcome of the deliberations carried out by the Authority through its Consultation Papers and its Open House Discussion on Tariffs for Basic Services, Tariff for Cellular Mobile Services, Issues Relating to Interconnection between Access Providers and National Long Distance Operators and the Reference Interconnect Officer (RIO). It also synthesizes the various responses and inputs received through the Consultation Papers and suggestions from various quarters". It was noticed that "the competition in the market with the entry of additional service providers in both the national long distance and the international long distance segments, had led to a further, large decrease in the prices for these services. While this has led to a drop in the above cost tariffs, the below cost or near cost tariffs could not increase because they were specified at particular levels to take account of the social objectives". In paragraph 3, it was pointed out that "the drastic reduction in long distance call charges implies that the sources of cross subsidy that was earlier available to cover the below cost tariffs, has been reduced to a major extent. This implies a need for two types of policy changes. One, to increase the below cost prices so that these cover at least some part of the uncovered costs, and the second that to the extent that costs of access are not covered by the tariffs, an access deficit charge (ADC) should be given to the access provider who incurs access deficit". One, to increase the below cost prices so that these cover at least some part of the uncovered costs, and the second that to the extent that costs of access are not covered by the tariffs, an access deficit charge (ADC) should be given to the access provider who incurs access deficit". It was further stated that the Authority had taken into account all these factors and determined an Interconnection Usage Charge (IUC) regime for basic and cellular mobile services' service, which is given in a regulation notified separately. The note is self explanatory. 30. S.35 of the Act empowers the Central Government to make rules for carrying out the purposes of the Act. Under S.36 the Authority can by notification, make regulations consistent with the Act and Rules made thereunder to carry out the " purposes of the Act. Such rules can provide for levy of fees and other charges also. Another fact which deserves mention is that in exercise of the powers under S.11 of the Act, the Authority has made The Telecommunication Interconnection Usage Charges Regulations (IUC), 2003," These were published vide Notification dated Jan.24, 2003. The purpose was "to fix the terms and conditions of interconnectivity between service providers to ensure effective interconnection between different service providers and to regulate arrangements amongst service providers of sharing their revenue derived from providing telecommunication services ...." Interconnection usage charges have been specified in the separate schedules. A copy has been produced as Ext.R3(b) with the counter affidavit dated June 2, 2003. 31. A perusal of the above shows that the Authority consists of experts in different fields like Accounts, Finance, Industry, Law and Telecommunication. It had got Consultation Papers. Even Open House Discussions were held. It had considered suggestions from various quarters. Thereafter the Tariff Order of 2003 was issued. It is, thus, clear that the matter had been thoroughly considered before the Authority issued the impugned notifications. 32. At one stage, it was faintly contended by the counsel for the petitioner that the Authority had not acted in a transparent manner. The consumers' interests were not taken into account. The viewpoint of the consumer was never considered. The contention is totally belied by the explanatory note attached to the Tariff Order of 2003. 32. At one stage, it was faintly contended by the counsel for the petitioner that the Authority had not acted in a transparent manner. The consumers' interests were not taken into account. The viewpoint of the consumer was never considered. The contention is totally belied by the explanatory note attached to the Tariff Order of 2003. Still further, in the counter affidavit, it has been specifically stated that the decision was taken after "consultation with all interested including representatives of the users........" Thus, the contention cannot be sustained. 33. Mr. Ram Kumar also referred to the decisions reported in Premier Automobiles v. Union of India ( AIR 1972 SC 1690 ), Panipat Cooperative. Sugar Mills v. Union of India [ (1973) 1 SCC 129 ], Express Newspapers Pvt. Ltd. v. Union of India ( AIR 1986 SC 872 ), Union of India v. Cynamide India Ltd. [ (1987) 2 SCC 720 ], Delhi Science Forum v. Union of India [ (1996) 2 SCC 405 ], Bihar State Electricity Board v. Usha Martin Industries [ (1997) 5 SCC 289 ), Balco Employees' Union (Regd.) v. Union of India ( (2002) 2 SCC 333 ], West Bengal Electricity Regulatory Commission v.'C.E.S.C. Ltd.(JT 2002 (7) SC 578) and Cellular Operators Assocn. of India v. Union of India ( AIR 2003 SC 899 ). The contention was that this court can in a suitable case intervene even on the issue of tariff for telephones. 34. There is no quarrel with the proposition. But the above decisions do not lay own that the High Court can interfere in matters of policy decisions taken by the appropriate authority. Equally, it has also not been held that the orders of expert bodies taken after due consideration of the relevant facts regarding telephone or other tariffs can be judicially reviewed by courts. Therefore, a detailed examination of all the decisions is not necessary. However, the only issue is as to whether or not the action is arbitrary. 35. A fact, which deserves mention is that in paragraph 6 of the counter affidavit the basis for the tariff has been categorically and clearly pointed out. Therefore, a detailed examination of all the decisions is not necessary. However, the only issue is as to whether or not the action is arbitrary. 35. A fact, which deserves mention is that in paragraph 6 of the counter affidavit the basis for the tariff has been categorically and clearly pointed out. It has been specifically averred that when a call is made from a land line to a mobile phone, the net works involved would be (i) the net work of the provider of the land phone, (ii) the net work of the transit call carrying operator, and (iii) the net work of the terminating call operator. The transit callcarrying operator would have facility for transit call carrying and may be BSNL itself or any other operator having such facility. Under the regulation notified on January 24, 2003, when a call is made from a landline to a mobile line, the landline operator is entitled to collect charges and then reimburse to the transit call carrying operator as well as the terminating call operator. The method for this has been laid down in the regulation. By the impugned notification, while prescribing the tariff the pulse rate has been fixed at 60 seconds. As a result, when a threeminute call is made from a BSNL land phone to a mobile, the cost is Rs. 3.60. Out of this, 60 paise per minute has to be reimbursed to the transit call operator and the terminating call operator for the use of their net works. Prior to May 1, 2003, the mobile operator was collecting charges for the incoming calls from his subscriber. By the new order, the charges for incoming calls which were collected by the mobile operator have been abolished. Resultantly, it cannot be said that under the new tariff, the total cost of a call has been really raised or that it is arbitrary. Similarly, it was also submitted that the number of free calls has been reduced. It is indeed so. However, there is no rule, which may confer any right on a subscriber to claim free calls. It is a matter, which has to be subscriber to claim free calls. It is a matter, which has to be considered and decided by the competent authority. The respondents have taken a view in the matter. There is nothing wrong or unfair about it. 36. It is a matter, which has to be subscriber to claim free calls. It is a matter, which has to be considered and decided by the competent authority. The respondents have taken a view in the matter. There is nothing wrong or unfair about it. 36. In fact, it is clear that the experts in the field have fixed the tariffs. The needful has been done after consultation, discussion and examination of the matter. The resultant effect is that initially the cost was being met by the person who made the call as well as the one who received it. Now the person who receives the call on a mobile phone does not have to pay. Since the experts have taken a policy decision after proper consideration of the matter, it cannot be said that they had acted arbitrarily or unfairly. There is a rationale for the tariffs fixed by the Authority. The person who makes a call from the landline is now in a position to have an easy access to anyone with whom he wants to communicate. He can talk to the person wherever he may be at any time. The easy access is an additional benefit. It is one of the benefits which the subscriber of a landline gets. The increase in his cost is amply justified by the extra facility that the telephone subscriber gets. 37. The common experience today is that many people have the landline phones well as the mobile facility. If a person is at home, he can be contacted on the landline. However, if he is not at home and yet one wants to speak to him, the person can make use of the available facility of making a call to the mobile phone. The subscriber has a choice. He may opt not to avail of it. The extra money, if any, is paid only when the additional facility is used. There is a clear rationale for the increase in tariff. Still further, it is the admitted position that according to the old tariff order, the person who received the call had to pay in addition to the money paid by the calling party. The Authority has taken the view that the burden should fall on the person who makes the call and not on the one who receives it. This is a pure question of policy. The Authority has taken the view that the burden should fall on the person who makes the call and not on the one who receives it. This is a pure question of policy. However, in view of the fact that the additional charges have to be paid to the providers of transit and terminating facilities, the increase was inevitable. 38. Taking the totality of the circumstances and the material placed on record, into consideration, it cannot be said that the rates are arbitrary, exorbitant or unfair. 39. Mr. Ram Kumar contended that the tariff is violative of Art.14 inasmuch as the difference in rate is based only on the nature of the instrument. While a call from a landline to a landline costs less, it becomes expensive when the call is made from a landline to a mobile phone. According to the learned counsel, the nature of the instrument cannot form a rational basis for any differential in the rate. 40. The contention cannot be accepted. As noticed above, the mobile phone provides an additional facility. One is able to contact a person even when he is not at his house or office. He can be contacted anywhere. One can reach a man in a bus, car or train. The mobile phone provides easy access even at a distant place. In view of this factual position, the tariff order and the regulation provide for an additional charge. The differential in rate is not based on the nature of the instrument but the facility. Nothing has been pointed out from the record to show that the rate is related to the instrument. The respondents are not charging a higher rate on the basis of the use of the gadget but solely for the additional facility. It has a rationale. It cannot be said to be discriminatory or violative of Art.14. Resultantly, the contention that the action suffers from the vice of discrimination cannot be sustained. 41. Mr. Ram Kumar referred to the decision in Ram Krishna Dalmia v. Justice Tendolkar ( AIR 1958 SC 538 ). In this case, their Lordships had laid down the principles to be borne in mind by courts in testing the validity of a provision on the touchstone of Art.14. It was inter alia held that Art.14 does not forbid reasonable classification. To pass the test of permissible classification, two conditions must be fulfilled. In this case, their Lordships had laid down the principles to be borne in mind by courts in testing the validity of a provision on the touchstone of Art.14. It was inter alia held that Art.14 does not forbid reasonable classification. To pass the test of permissible classification, two conditions must be fulfilled. Firstly, the classification must be founded on an intelligible differentia. Secondly, the differentia must have a rational relation to the object sought to be achieved. 42. On a consideration of the matter, we find that in the present case, both the tests are satisfied. There is a clear and intelligible distinction between the facilities of a telephone call from a landline to a landline and from a landline to a mobile phone. The differentia in rate has a nexus to the cost incurred by the provider of the service. Still further, even the test which has been subsequently laid down in the later decisions, viz., no action should be arbitrary or unfair, is also satisfied in the present case. Thus, we find that the action of the respondents is not contrary to the rule enunciated by their Lordships in Ram Krishna Dalmia's case (supra). In fact, it deserves mention that in this case it was categorically held by their Lordships that "there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles." We find that the petitioner has not placed any material on record to rebut the initial presumption of constitutionality. 43. Mr. Ram Kumar then referred to the decision in Sansar Chand Atri v. State of Punjab [ (2002) 4 SCC 154 ] to contend that the creation of a class within a class cannot be sustained. 44. In Atri's case, the Court was considering the validity of a rule, which denied the benefit of reservation for exservicemen to a person who was released from the Army at his own request. It was held that a person who had rendered the requisite period of service and earned pension should be treated as a retired exserviceman. 44. In Atri's case, the Court was considering the validity of a rule, which denied the benefit of reservation for exservicemen to a person who was released from the Army at his own request. It was held that a person who had rendered the requisite period of service and earned pension should be treated as a retired exserviceman. In this context, it was inter alia observed that the creation of "a class within a class without rational basis becomes arbitrary and discriminatory." The ratio of this case is not at all attracted to the facts of the present case. It cannot be said that the classification of telephones based on the additional facility does not form a valid basis for classification. 45. There is another aspect of the matter. Even though we have examined the contentions of the learned counsel with regard to the validity of the Tariff Order as also the consequential revision of rates as notified by the BSNL, yet the fact remains that the matter lies exclusively within the jurisdiction of the competent authority. The courts are really not equipped to examine matters involving technology, the costs thereon and the rates. Thus, it is best leave these matters to the judgment of the statutory Authority constituted under an Act of the Parliament. The rule in this behalf was clearly laid down by a Constitution Bench of the Supreme Court in S. Narayan Iyer v. Union of India ( AIR 1976 SC 1986 ). 46. It is true that since the decision in Iyer's case, the factual position has changed. The tariff is not a part of the budgetary proposals. It is not debated in Parliament. A statutory Authority, which consists of experts, considers the matter. It is not being examined in the Finance Ministry. But the change in the forum is of no real consequence. The rate still remains a question of policy. This court cannot really examine the questions of policy as involved in the fixation of rates. 47. In view of the above, it is held that the tariff is not arbitrary, excessive or exorbitant. It does not suffer from the vice of discrimination based on the nature of the phone. Thus, it does not violate Art.14 of the Constitution. Thus, the first question is answered against the petitioner. Regarding (2). Is the impugned action violative of Art.19 of the Constitution? 48. Mr. It does not suffer from the vice of discrimination based on the nature of the phone. Thus, it does not violate Art.14 of the Constitution. Thus, the first question is answered against the petitioner. Regarding (2). Is the impugned action violative of Art.19 of the Constitution? 48. Mr. Ram Kumar contended that the right of freedom of expression arid information is guaranteed under Art.19 of the Constitution. Fixation of arbitrary rates places an unreasonable restriction on the freedom of communication and information. Reference was made to the decisions in B.C. & Co. v. Union of India ( AIR 1973 SC 106 ), Indian Express Newspapers v. Union of India [ 1985 (1) SCC 641 ], Secretary, Ministry of & B v. Cricket Assocn., Bengal ( AIR 1995 SC 1236 ) and People's Union for Civil Liberties v. Union of India ( AIR 1997 SC 568 ). 49. It is undoubtedly correct that the right to communication is a part of the freedoms under Art.19. Imposition of restrictions on the number of pages or levy of excessive customs duty has been frowned upon by their Lordships of the Supreme Court. Yet, the decisions cannot be read to mean that whenever the Authority revises the rates there is an invasion of the rights under Art.19. Equally, an upward revision of rate cannot always lead to an inference of unreasonable restriction on the freedom. It is only when the increase is apparently arbitrary that the Courts can intervene. Today, the rise in costs is a known fact. Under the pressure of the Associations and Unions of employees, the Government has to periodically revise the rates of pay. There is often a substantial increase in salaries etc. It results in an additional burden. Resultantly, the costs go up. To meet the rising cost, the tariffs have to be revised. These costs have to be met by the subscribers. The State cannot be forced to subsidize everything. The user of facility has to pay for what he needs and uses. He cannot complain that the increase restricts his freedom and it should, thus, be annulled. 50. Even otherwise, we have found that the increase in the rate is not arbitrary. The petitioners have not been able to show that in view of the impugned action, the number of calls has gone down. He cannot complain that the increase restricts his freedom and it should, thus, be annulled. 50. Even otherwise, we have found that the increase in the rate is not arbitrary. The petitioners have not been able to show that in view of the impugned action, the number of calls has gone down. No evidence has been referred to, which may suggest that the petitioners' freedom of communication has been adversely affected. Resultantly, the ground based on Art.19 cannot be sustained. Regarding (3). Is the action malafide? 51. Mr. Ram Kumar contended that the action suffers from the vice of malafides. The respondents had enhanced the rates with the oblique objective of helping the private operators. According to the counsel, if the calls made from any landline are expensive, the people shall be forced to use mobile phones. Thus, the action of the respondents in fixing the impugned tariff is really calculated to help the mobile operators. Since the impugned action is based on extraneous considerations it is vitiated by malafides. 52. It is undoubtedly true that malafides would vitiate an order. Whenever an authority passes an order with an oblique objective or on account of extraneous considerations and the allegations made are found to be correct, the action would not be bona fide. However, the charge of malafides is virtually like a quasi criminal charge. The allegations have to be definite. These must be duly proved. The evidence on record must clearly point towards an oblique objective. Only then the charge can be sustained. 53. What is the position in the present case? 54. The petitioner has alleged that the members of the ruling party "in Parliament have raised objections that the attempt of the Government is to help the mobile telephone manufacturers". The counsel had also referred to ground (C) in the petition. Therein it has been alleged that "the exorbitant increase of rate is with the sole object of helping the big private mobile telephone industries such as Reliance Infocomm, Escotel, Air Tel etc. etc." It has been stated that the companies "have tremendous influence over the Government and in particular, the honourable Minister in charge of Telecommunication Department. The influence commanded by the Reliance group of industries on the present Central Government is no longer a secret". etc." It has been stated that the companies "have tremendous influence over the Government and in particular, the honourable Minister in charge of Telecommunication Department. The influence commanded by the Reliance group of industries on the present Central Government is no longer a secret". On the basis of these allegations, the petitioner maintains that the "recent revision of rates by the BSNL is utterly malafide and intended to increase the purchase of mobile phone from private industrialists". 55. The allegations made by the petitioner have been comprehensively controverted in the controverted in the counter affidavit filed on behalf of respondents 3 and 4. In paragraph 4, there is a categorical denial of the allegations. In fact, the respondents have given facts to demonstrate that the new rate is justified and was warranted by the existing circumstances. 56. On a perusal of these allegations, it is clear that there is no suggestion that the Telecom Regulatory Authority was acting malafide or was wanting to promote the interests of the mobile telephone operators. There is no specific allegation against any individual person, officer or authority. It has been averred that the action is calculated to 'help the mobile telephone manufacturers'. Who is manufacturing the telephones? There is no answer. Again it is said, "the exorbitant increase of rate is with the sole object of helping the big private mobile telephone industries such as Reliance......" How would the action help Reliance etc.? The averments are vague. There is an insinuation against the Minister. But nobody has been named or 0impleaded as a party. On the basis of such allegations, the charge of malafides cannot be sustained. 57. Mr. Ram Kumar laid great emphasis on an advertisement published in a Malayalam newspaper. It was issued by the Escotel. In this advertisement, certain newspaper reports in Malayalam have been printed to show that people were surrendering their landline phones. On this basis, the counsel raised the contention that the action of the respondents is actually helping the private operators. 58. The suggestion made on behalf of the petitioner was categorically controverted by the counsel for the respondents. In addition to that, we find no material on the record to sustain the plea that the subscribers have really surrendered their landline phones. 58. The suggestion made on behalf of the petitioner was categorically controverted by the counsel for the respondents. In addition to that, we find no material on the record to sustain the plea that the subscribers have really surrendered their landline phones. In fact, a perusal of the advertisement indicates that the private operators are not charging at a rate lower than the one fixed by the respondents. The pulse rate introduced by the particular private operator is 30 seconds while that of the BSNL in case of a call from a landline phone to a mobile phone is 60 seconds. Thus, the rate of the private operator for use of mobile phones is in no way less than that introduced by the BSNL. In any case, the contention of the counsel could have some content of legitimacy if it was shown that the impugned rate was higher than that for a call from a mobile to a mobile. That could have been a cause for a subscriber to switch over from a landline to a mobile. Such is admittedly not the situation. Still further, it is also an admitted fact that even the Nigam has entered the mobile telephone operations. Thus, it could possibly have no motive for helping any private operator. And then, we have a free Press in our country. On the basis of a mere advertisement in a newspaper or a press report, a definite finding cannot be recorded. There should be evidence to show that people have really surrendered their landline phones. 59. On behalf of the respondents, reference was made to a report in the Hindu dated May 23, 2003. The statement of the Deputy Governor of the RBI was reported. It was stated that the telecom firms were in danger of bankruptcy. The effort was to show that the private operators were suffering substantial losses. 60. As already observed, in the circumstances of this case, the reports in the newspapers cannot form the basis of a firm finding. For the present, it shall suffice to say that there is no evidence to show that there was any lack of bona fides. 61. Faced with this situation, learned counsel for the petitioner pointed out that according to the Minister for Telecommunication, the recommendation of the Authority "is not compulsorily required to be followed and can be altered". It may be so. 61. Faced with this situation, learned counsel for the petitioner pointed out that according to the Minister for Telecommunication, the recommendation of the Authority "is not compulsorily required to be followed and can be altered". It may be so. Yet, nothing stops the Government or the operating agency from accepting the recommendation of the Authority. In the present case, the respondents have actually accepted it. The recommendation made by the Authority, as observed earlier, was based on a thorough consideration of all aspects. If it had not been accepted, the action may have been criticized on the ground that there were no reason to reject it. The competent authority having accepted the recommendation, the petitioner suggests that it has acted in a malafide manner. We find no justification for this suggestion made by the petitioner. 62. In view of the above, even the third question is answered against the petitioners. 63. Mr. Ram Kumar also contended that the petitioners had a right to be heard before the rates were revised. 64. There are millions of subscribers in the country. The Counsel has not referred to any rule requiring the authority to hear the individual subscribers. Still further, the Authority had actually made the recommendation after consideration of all the relevant facts and open discussion. The claim that the petitioner had a right to be heard, if accepted, would mean that every subscriber should be called and questioned. This would make the working of the Authority as well as the Nigam impossible. We are unable to accept the contention. 65. Mr. Sreedharan Pillai, learned counsel for the respondents had raised the contention that the petitioner in both the cases have an effective alternative remedy by way of an appeal before the appellate tribunal. Since we have heard the case at length, we do not think that it would be appropriate at this stage to relegate the petitioners to any other remedy. Resultantly, it also does not appear to be necessary to examine the issue with regard to the actual availability of an alternative remedy. Having heard the matter, we have considered it appropriate to decide the issues. 66. Mrs. Molly Jacob, learned counsel for the petitioner in the connected case had adopted the arguments raised by Mr. Ram Kumar. No new point was raised. Thus, it is not necessary to go into the case separately. The issues are common. 67. Having heard the matter, we have considered it appropriate to decide the issues. 66. Mrs. Molly Jacob, learned counsel for the petitioner in the connected case had adopted the arguments raised by Mr. Ram Kumar. No new point was raised. Thus, it is not necessary to go into the case separately. The issues are common. 67. The petitioner has also filed a Contempt Petition. It is alleged that the respondents are continuing to charge at the revised rates despite the interim order passed by a Bench of this Court on May 13, 2003. This, it is alleged, was continued despite the service of notice through a lawyer. On this basis the petitioner prays that the respondents, viz., the Managing Director BSNL and the Deputy General Manager be punished for contempt. 68. On behalf of the respondents it was contended that no bill for the period in question was issued to the petitioner. Thus, he can have no cause to complain. 69. Even otherwise, we have examined the matter. We have found no merit in the contentions raised. No bill having been issued to the petitioner, it cannot be said that the respondents have willfully disobeyed any order passed by the Court. Resultantly, we find no merit in this Contempt Petition. It is dismissed. 70. No other point was raised. 71. In view of the above, it is held that: 1. The Telecom Regulatory Authority as constituted under the 1997 Act consists of experts in different fields like accounts, finance, industry, law, management and telecommunication. It was on a consideration of the Consultation Papers, the suggestions from various quarters and Open House Discussions that it had issued the Tariff Order of 2003. 2. On consideration of the matter, it has taken the view that it was not proper to make the receiver of the call to pay any expense. This was a pure matter of policy. Similarly, it was also decided to reduce the number of free calls. Nobody has a right to claim free calls. It does not violate any rule or law. It is not arbitrary or unfair. There was a clear rationale for the tariff as fixed by the Authority. 3. The Government had initially accepted the recommendation of the Authority. Later on, it was modified vide Ext. P3. Even this was approved by the Authority vide its letter of May 13, 2003. It does not violate any rule or law. It is not arbitrary or unfair. There was a clear rationale for the tariff as fixed by the Authority. 3. The Government had initially accepted the recommendation of the Authority. Later on, it was modified vide Ext. P3. Even this was approved by the Authority vide its letter of May 13, 2003. The tariff was not excessive or exorbitant. The enhancement was justified by the provision of extra facility viz. a person from the landline telephone being able to call another who is not present at his house or office. Thus, the challenge based on arbitrariness of the action and Art.14 of the Constitution cannot be sustained. 4. There is no discrimination based on the use of the particular instrument. The subscriber has been given the option to make a call on the mobile phone. The differential in rate is actually based on the additional facility made available to the calling party. The charge of discrimination as leveled by the petitioners cannot, thus, be sustained. 5. Even the ground of unreasonable restriction on the freedom under Art.19 is untenable. There is no evidence that the revised tariff places any unreasonable restriction on the freedom of speech or communication. The claim is wholly imaginary. Thus, it cannot be accepted. 6. A person who levels the charges of malafides has to plead facts and prove the allegations beyond reasonable doubt. An allegation of malafide can be easily made. However, it can be sustained only when the allegations are clear and categorical. The allegations have to be proved. When personal malice is alleged, the person concerned has to be personally impleaded as a party. He is entitled to answer the allegations and give his version of the factual position. 7. In the present case, no person has been impleaded as a party. Neither the private parties who are allegedly influential nor those who were influenced have been impleaded in these petitions. The allegations are wholly vague. There is no evidence to support the plea. Thus, it cannot be sustained. 8. Still further, it has not been even suggested that the impugned rate for a call from a landline to a mobile phone is higher than that for a call from a mobile to a mobile. Thus; there can be no reason for a person to switch over from a landline to a mobile phone. Thus, it cannot be sustained. 8. Still further, it has not been even suggested that the impugned rate for a call from a landline to a mobile phone is higher than that for a call from a mobile to a mobile. Thus; there can be no reason for a person to switch over from a landline to a mobile phone. In the circumstances, the charge of malafides cannot be sustained. In view of the above conclusions, we find no merit in both the petitions. These are, consequently, dismissed. Even the Contempt Petition is dismissed. However, the parties are left to bear their own costs.