Delhi HC stays TDSAT order ‘preventing’ pre-paid mobile subscribers to exercise right to portability

The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) order was passed on December 24 on a plea moved by Vodafone Idea challenging the TRAI direction passed on December 7.

In 2019, the government had provided a two-year moratorium on such payments.
In 2019, the government had provided a two-year moratorium on such payments.

The Delhi High Court on Wednesday stayed a TDSAT order that was stated to be preventing prepaid mobile phone subscribers from exercising their right to portability.

Justice Rekha Palli issued a notice to Vodafone Idea, seeking its response on a petition filed by the Telecom Regulatory Authority of India (TRAI) challenging the tribunal’s order that stayed the regulator’s mandate requiring all telecom service providers to permit one text message for portability and receiving a Unique Porting Code.

The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) order was passed on December 24 on a plea moved by Vodafone Idea challenging the TRAI direction passed on December 7.

The telecom operator opposed any interim relief and argued that it was fully complying with all the regulations concerning the portability service and once a tariff has been fixed in accordance with law and a consumer has opted for a plan with full knowledge that it would not include the text message facility, no additional condition can be imposed upon it.

The judge asked the company “why was it shying away from one SMS” and opined that a stay on the TRAI directive would cause irreparable loss to the public.
“I am of the prima facie view that the directions issued on December 7, 2021 in no way take away the freedom granted to the respondent to fix tariff plans. In fact, any interim stay of the direction as done (by TDSAT) will cause irreparable loss to the general public,” the judge said.

“The petitioner has made out a prima facie case for stay of the impugned order, which is accordingly stayed,” the court said and clarified that the telecom tribunal is free to proceed with the case pending before it.

Solicitor General Tushar Mehta, representing the TRAI, contended that the December direction was issued in public interest and to ensure that all consumers have the option of mobile number portability, irrespective of their tariff plan not having the text message facility.

“Merely because a poor person has taken a prepaid plan for less rupees, he or she cannot be deprived of his or her right to portability, that too when the telecom service provider is required to allow only one SMS, that too on regular charges being levied by it on the consumer,” the TRAI said in its petition filed through lawyer Arjun Natarajan.

“In the impugned order dated 24.12.2021, hon’ble TDSAT has not only granted relief available at final hearing (to the respondent company) but has virtually and literally prevented prepaid mobile subscribers from exercising their right to portability, which is recognised by law. The only effect of the petitioner’s direction dated 07.12.2021 impugned by the respondent herein before hon’ble TDSAT was requiring all telecom service providers to permit only one SMS for portability and for receiving a Unique Porting Code,” it added.

Senior advocate Maninder Singh, appearing for Vodafone Idea, defended the stay imposed by the TDSAT and submitted that the telecom operator’s mobile network is already equipped to provide portability to the users.

The matter would be heard next on April 25.

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