Disposal and pendency of cases in the Telecom Disputes Settlement Appellate Tribunal (TDSAT) Limited empirical study and results Upamanyu Hazarika Senior Advocate 14 May

TDSAT established by an amendment to the TRAI Act 1997 on TDSAT came into existence on 29 May 2000 Effective functioning of TDSAT from January 2001 Jurisdiction of TDSAT to adjudicate on disputes between the eligible parties and appeal arising out of TRAI orders 2

Procedure and powers The procedure for filing is set out in Section 14A of the TRAI Act 1997 Sub-Section (6) of Section 14A provides for disposal of application/appeal as expeditiously as possible and to make endeavours to dispose of within 90 days from the date of filing. 3

Pendency, arrears and disposal in the national perspective Pendency of cases has constantly shown an upward trend in the courts in India. Pendency was at 23.5 million in 2004 and the last two years the same trend is seen evident from the chart on next slide 4

Contd… Courts Supreme Court* Admission Regular Total 34,976 20,815 55,791 32,773 21,827 54,600 High Courts**4,060,7094,183,731 Lower Courts**27,275,95327,889,465 Total (All Courts)31,392,45332,127,796 *Statistics as of 31 October 2010 **Statistics as of 30 June 2010 (Source – Supreme Court of India) 5

30 % of the cases pending in fell into “3-10 year old” period and over 10 year old period in Delhi and Bihar in oldest cases pending in the Delhi Courts are reported to have languished for about years. 6

The 77 th and 79 th Law Commission Reports in 1978 and 1979 recommended period of disposal for : – Criminal Matters- 6 months – Civil Matters- 1 year – Appeals in different categories- 6 months- 2 years 7

TDSAT filing and disposal – Salient facts From 2001 until 2004 TDSAT adjudicated disputes only relating to telecom sector. From 2004 cable and broadcasting sector also brought within the ambit of TDSAT jurisdiction. Number of cases shows a marked increase after 2004 with cable and broadcasting matters comprising the bulk of filing. Between 2001 to 2004 major policy and regulatory issues affecting telecommunication sector resolved, after which were left the individual disputes of service providers. 8

Category of matters Appeals Review applications Execution applications Petitions 9

The number of cases instituted in TDSAT till 2010 is 2229 of which TDSAT has disposed of 2039 cases which constitutes a disposal of 91%. Institution Disposal Des crip tion Tota l Tota l Petit ion Revi ew Appl icati on App eal Exe cutio n Appl icati on Tota l

Appeals (upto ) YearFilingDisposal Year wise breakup the disposal Pendency = = = =

Contd… YearFilingDisposal Year wise breakup the disposal Pendency = = = = = Total as on

Review Applications (upto ) YearFilingDisposalYear wise breakupPendency = (of 2011) 13

Execution Application (upto ) YearFilingDisposalBreak upPendency = = = = = = = = =

Petitions (upto ) YearFiling Disposal Break-up year wise Pendency TelecomCableTelecomCableTelecomCable NIL NIL NIL 15

Contd… YearFilingDisposalBreak-up Year wisePendency T-7 C T-7 C T-0 C-5 5 T-3 T-1 NIL 16

Contd… YearFilingDisposalBreak-up Year wisePendency TelecomCableTelecomCableTelecomCable T-8 C C-52 T T-5 C T-1 C-1 2 T-1 C-1 2 T-4 C

Contd… YearFilingDisposalBreak-up Year wisePendency TelecomCableTelecomCableTelecomCable T-3 C T-5 C T-0 C T-3 C T-5 C

Contd… YearFilingDisposalBreak-up Year wisePendency TelecomCableTelecomCableTelecomCable T-2 C T-2 C T-3 C T-15 C T-0 C

Contd… YearFilingDisposalBreak-up Year wisePendency TelecomCableTelecomCableTelecomCable T-2 C T-4 C T-13 C T-1 C T-18 C T-0 C

Contd… YearFilingDisposalBreak-up Year wisePendency TelecomCableTelecomCableTelecomCable T-29 C T-6 C C

In the first year of its institution the TDSAT disposes only 3 out of the 24 matters and all 24 matters are disposed of evenly by In 2002 out of 20 matters instituted, 9 were disposed in the same year, another 7 by 2005 and the balance in 2008 and Out of 20 matters instituted in 2003, 5 were disposed in the same year, 12 by 2005 and one each in 2008, 2010 and Out of 56 matters instituted in 2004, 28 were disposed in the same year and the balance by Out of 155 matters instituted in 2005, 61 matters were disposed in 2005, 62 in 2006, 18 in 2007 and the remaining few over 2008 to

Contd… Out of 318 matters instituted in 2006, 126 were disposed in the same year, 152 in 2007 and the balance in 2009 and Out of 333 matters instituted in 2007, 146 were disposed in the same year, 76 in 2008, 43 in 2009, 53 in 2010 and 15 in Out of 271 matters instituted in 2008, 138 were disposed in the same year, 76 in 2009 and 47 in 2010 with a pendency of 10 in the present year. Out of 284 matters instituted in 2009, 119 were disposed in the same year, 135 in 2010 with a pendency of 18 in the present year. Out of 437 matters instituted in 2010, 258 were disposed in the same year. 23

Discernible trends From its inception in 2001, the initial years from 2001 till 2004 show a disposal rate of around 25%, only in telecom matters with significant, regulatory and policy implications: After inclusion of cable and broadcasting sector, volumes have increased considerably. After introduction of cable and broadcasting, 2005 shows a major increase in matters in cable and broadcasting from 38 in 2004 to 124 in 2005 and 312 in 2006, which remained the same in 2007 came down to 252 in 2008 and 265 in On an average disposal has been 50% of the current year filings and the balance 50% has been carried over and disposed of within the next 4-5 years. Total number of matters disposed of show a sharp increase in the year 2009 and The present pendency has come down drastically, for instance pendency of 2008 matters as of now is only 10. Out of total of 271 and of 2009 is 10, out of total of 284 and out of 2010, is 144. Filing in 2010 shows an increase of around 45% up from 284 in 2009 to

Clearance of pending cases commencing in 2009 and 2010 brought in increased institution. In 2009 total matters filed were 284 and total number of matters disposed of was 290, which also included pending cases of previous years 25

Why did filing increase by 45% from 2009 to Adherence to time standard by the Tribunal, rarely granting adjournment made disposal quicker. Every matter listed for an effective date, either for hearing or for evidence or for framing of issues or orders. Feedback from stake holders and lawyers demonstrate that filing has increased entirely due to quicker disposal. Major increase in filing of cable and broadcasting matters showing an increase of round 50% from 265 in 2009 to 403 in The increase in filing is not attributable to any regulatory or policy measure on the part of government and TRAI and are entirely private disputes inter se parties. That is, no policy decisions taken by TRAI/Government which have been challenged, leading to increased pendency 26

Significant finding Cable matters show an increase in filing from 265 in 2009 to 403 in 2010 and telecom matters from 19 to 32. Bulk of the increase is attributable to cable matters. Efficient and timely disposal has encouraged ordinary litigants like cable operators to approach TDSAT, empowering them in the process. 27

Efficient practices Rule of service of advance copy with appearance/representation of other side at the first hearing cuts out delays attributable to service etc. Despatch of certified copies after every date to counsel intimates next date along with proceedings of previous date, ensures presence of parties. Check list at the time of filing ensures petition being in order and ensures accountability of registry. No adjournments are granted as a practice and for pending matters upto year 2008 are clearly mentioned in the list that no adjournments will be granted. This ensures presence of counsel and hearing. Introduction of oral evidence since 2009 as a practice in all matters, ensures true determination of facts, acts as a deterrent against false cases, coupled with timely disposal. All hearings are recorded, making it easier for Chairman and Members to recapitulate arguments. 28

Suggestions for way forward Institutionalise a system of recording pendency and disposal, categorywise, yearwise and for different stages within a matter, which will throw up data and trends enabling and devising efficient disposal mechanism. This can be done by framing appropriate rules under Section 16(1) of the Act.. Most disputes, if not all are between parties who are in a continuing relationship and mediation as a measure of dispute resolution can be effectively explored. To ensure lower pendency on a continuous basis, necessary also on a continuous basis to assess optimum judge to case ratio. Section 14B limits strength of Tribunal to three, including Chairperson. The Central Government should take cognizance of increase and pendency and amend the act to provide for more members, both judicial or otherwise. 29

Acknowledgement Convey thanks and gratitude to the Chairperson, Members and Registrar Ms. Kajal Singh, Joint Adviser Mr. Anil Srivastava, Mr. Sujit Gangopadhyay, Mr. Pant and Mr. Bajpai. The entire ground work, compilation of data and interaction was carried out by my able colleague Ms. Dharitry Phookan. 30