Indian Draft Telecom Bill 2022 — Changes and Implications (Part4)
This is part of the current series, I plan to cover the provisions in the Draft Telecom Bill (2022) which shall empower the Central Government to make rules to facilitate the Right of Way for the operators to set up telecom infrastructure for offering services. In order to understand the real impact of these new provisions, we have to examine and compare what provisions already exist in the current Telegraph Act of 1885 with the Proposed Draft.
Telegraph Act of 1885
Current Provisions
The current provisions are enumerated in Part III of the Indian Telegraph Act (1885). Some of the critical and relevant clauses are reproduced here for ready reference.
Section 10 — “The telegraph authority may from time to time place and maintain a telegraph line under, over, along, or across, and posts in or upon any immovable property”
Section 10(c) — “Except as hereinafter provided, the telegraph authority shall not excercise those powers in respect of any proiperty vested in or under the control or management of any local authority, without the permission of that authority”
Note the highlighted phrase in bold. The Current Act empowers the local bodies (States) with the capability to grant permission. Does that mean that they can withhold permission as well? Maybe, as I did not see any clauses on the contrary.
Section 10(d) — “….telegraph company… shall pay full compensation to all persons interested for any damage sustained by them by reason of exercise of those powers”
Note that the amount of compensation has not been specified.
Section 12 — “Any permission given by a local authority under section 10(c), may be given subject to such reasonable conditions as that authority thinks fit to impose, as to the payment of any expense to which the authority will necessarily be put in consequence of the exercise of the powers conferred by that sections, or as to the time or mode of execution of any work, or as to any other thing connected with or relative to any work undertaken by the telegraph authority under those powers.
Note that the Telegraph Act of 1885 only empowers the local authority (municipal authorities under the states) to set levy fees and impose SLAs of time and mode of execution, and not the Central Government.
Section 15 (1)— “If any dispute arises between the telegraph authority and local authority in consequence of the local authority refusing the permission…………. it shall be determined by such officer as the Central Government may appoint either generally or specifically in this behalf”
Section 15(2) — “An appeal from the determination of the officer so appointed shall lie to the Central Government and the order of the Central Government shall be final.”
Now Section 16 provides tremendous power to the District Magistrate and District Judge for empowering the telegraph authority to lay infrastructure over properties other than that of a local authority. This includes granting of permission, determination of compensation, etc. Note DM, reports to State Government, and District Judge has to give a ruling based on the constitutional provisions of the Federal Structure.
Summary
In a nutshell, the Indian Telegraph Act 1885, does NOT provide any guidance for any rates/compensation that the local authorities may charge, and nor does it specifies any time limit in which permission to be granted to telegraph authority.
However, it provides the Final Authority to the Central Government to decide disputes, which might have to be scrutinized based on our Constitutional Framework — defining the relationship between Center and States, and given that “Management of Land” is defined in our constitution as a State subject.
Note that only “Acquisition And Requisitioning of Land” falls under the Concurrent List and is defined under the 7th Schedule of our Constitution.
Right of Way Rules (2016)
In absence of clear guidelines and uniformity across states on the issue of ROW, the Central Government, on 15th Nov 2016, came out with specific rules with an intent to streamline the assignment of ROW to the telecom licensees. The power to make such rules was extracted from the Indian Telegraph of 1885 — Section 7(2e) and Section 10, 12, & 15 as described above.
Key Provisions
Section 5(1) — “A licensee shall, for the purpose of establishment of telegraph infrastructure under any immovable property vested in or under the control or management of any appropriate authority, make an application, supported by such documents, to that authority in such form and manner as may be specified by that appropriate authority”
Section 5(3) — “Every application under sub-rule(1) shall be accompanied with a such fee to meet administrative expense for examination of the application and the proposed work as the appropriate may, by general order, deem fit: Provided that such fee to meet administrative expense shall not exceed one thousand rupees per kilometer.
Section 6(4) — “The appropriate authority shall not charge any fee other than those prescribed under sub-rule (3) of rule 5 and clause (a) of sub-rule (2) from the licensee for establishing underground telegraph infrastructure”
Note — The ROW Rules of 2016, impose a ceiling on the fees that the local authority may charge, but as discussed the Telegraph Act of 1885 (from where it draws its powers) has no such provisions.
Section 6(2) — “The appropriate authority shall within a period not exceeding sixty days from the date of application made under rule 5 — a) grant permission on such conditions including, but not limited to, the time, mode of executions, measures to mitigate public inconvenience or enhance public safety, and payment of restoration charge, as may be specified, subject to the provision of the Act and these rules; or b) reject the application for reasons to be recorded in writing”
Note — The Telegraph Act sections which empower the Central Government to draft these rules actually have no such provisions to enable the Central Government to decide these SLAs. As described above, these have to be enlisted by the local bodies themselves.
Section 14(1) — Any dispute arising between a licensee and the appropriate authority in consequence of these rules shall be referred to the officer designated by the Central Government….
Note — Dispute resolution mechanism is exactly similar as has been spelled in the Indian Telegraph Act of 1885, however, the reference to “District Judge” has been omitted.
But the problem here is the validity of the provisions (fees and SLAs) as mentioned in the rules. These seem to have no explicit backing from the mother Act of 1885 from which it draws all its powers.
Draft Telecom Bill (2022)
As discussed above, most of the provisions in the ROW rules of 2016 are not in resonance with the Indian Telegraph Act of 1885, which has empowered the local authorities with more powers to decide rates and SLAs. Hence, it was important for the Central Government to modify the Act itself to make it in alignment will be rules to preserve the legality of these rules.
Key Provisions
Section 13(2) — “The public entity shall grant permission under sub-section(1) in an expeditious manner, and within the timelines, as may be prescribed.”
Section 13(3) — “The public entity granting permission under sub-section(1), shall be entitled to collect fees for such right of way granted, which shall not exceed the amount as may be prescribed.”
Note — Through these provisions, the lack of synergy between the Indian Telegraph Act of 1885 and the ROW rules of 2016 stands corrected.
Section 13(4) — “Any rejection of an application under sub-section(1) shall be based on substantive grounds.”
Section 15 — “Any person providing right of way under Section 14 or Section 15 shall ensure grant of the right of way to the facility in a non-discriminatory manner, as far as practicable, on a non-exclusive basis”
Note — This is a new provision that neither exited in the Telegraph Act of 1885, nor the Rules notified in 2016.
Section 16(3) — “The telecommunication infrastructure installed on any properly, shall not be considered as part of such property for the purpose of any transaction related to the property, or any property tax, levy, cess, fees or duties as may be applicable on that property”
Note — Using the above provision the current issue of the State Agencies charging huge amounts from property owners on which towers get installed may get mitigated. As these changes were being passed on to the tower companies by the property owners.
Center vs States
Though the Draft Telecom Bill of 2022 tries its best to correct most of the incompatibilities between the Indian Telegraph Act of 1885 and the ROW Rules of 2016, however, the key issue here is the “Constitutional Validity” of some of the rules — mostly related to the quantum of fees to be collected by State Agencies for granting ROW. Schedule 7 of our constitution defines the distribution of powers between the Center and the States. And under this Schedule, Section(18) of Part II (Items for which only States are empowered to make laws) is reproduced below.
Land, that is to say, rights in or over land, land tenures including the
relation of landlord and tenant, and the collection of rents; transfer and
alienation of agricultural land; land improvement and agricultural loans;
colonization.
Hence, States have exclusive rights over land and have the exclusive privilege to decide rates and fees relating to their use. The Center's powers over land in the concurrent list is for a matter of only “Acquisition and requisitioning of property” (Section 42 of the Concurrent List). Hence, any law encroaching on it might get disputed, especially in States which are not in alignment with the Center.
Conclusion
Although the intent of the Center in bringing homogeneity of rules between all States is explicitly clear from the provisions enlisted in the Draft Telecom Bill (2022). However, the fact still remains to be seen how much additional empowerment these laws will provide the Center in their ability to direct the States to all fall in line regarding the issues related to ROW — especially on the matters of fees and taxes. In my view, States should fall in line by leaving all the legality aside, as the establishment of robust telecom infrastructure is in their interest too — State’s GDP growth depends on it. We must all hope that better sense prevails and we as a country drive ourselves towards deploying world-class telecom infrastructure — accelerating India into becoming a developed economy.
To be continued in part(5)…
(Views expressed are of my own and do not reflect that of my employer)
PS: Find the list of other relevant articles in the embedded link.
