TELECOM DISPUTES SETTLEMENT
& APPELLATE TRIBUNAL
NEW DELHI
Dated 11th February, 2010
Petition No.56 of 2009
M/s Vodafone Essar Gujarat Ltd. … Petitioner
Versus
Bharat
Sanchar Nigam Limited …Respondent
BEFORE:
HON’BLE MR. JUSTICE S.B.SINHA, CHAIRPERSON
HON’BLE MR.G. D. GAIHA, MEMBER
|
For Petitioner |
: |
Mr.
Navin Chawla,Advocate Mr.
Sharath Sampath, Advocate |
|
For Respondent |
: |
Mr.ManinderSingh,
Senior Advocate with Mrs.Prathiba M. Singh, Mr.
Yoginder Handoo, Mr.Tejveer
Singh Bhatia, Ms.Nitya Thakur, Mr.Arjun Natarajan, Advocates |
JUDGMENT
S.B. Sinha
The
petitioner is a licensee under the provisions of the Indian Telegraph Act, 1885. Being not an ILDO licensee it was not authorized
to bring any international calls for termination in India.
The respondent is also a
licensee. It admittedly has its network
throughout
The
petitioner indisputably has been issued with a bill dated 16.10.2004 asking it
to pay a sum of Rs.3,54,94,916/- purported to have been calculated on the basis
of the number of incoming calls received at the respondent’s network at the
rate of Rs.5.65 per minute paying the highest charge prescribed by the Telecom
Regulatory Authority of India (TRAI) in terms of Interconnect Usage Charge
Regulation 2003(IUC).
The said bill was issued relying
on/or on the basis of clauses contained in Chapter 7 of the interconnect agreement
entered into by and between the parties hereto.
We may notice the factual matrix involving
the disputes between the parties.
As referred to hereinbefore the
Interconnect Agreement entered into by and between the parties hereto on or
about 21.08.2002. The said agreement did
not contain any penal clause of the nature referred to hereinbefore on the
basis whereof the respondent could raise a bill. On or about 26.03.2003 the Ministry of
Communications & IT (Department of Telecommunication) noticing that
clandestine exchanges were being operated by some unscrupulous persons for
receiving international calls and distribution of PSTN in India wherefor
vigilance should be exercised and call details record should be analysed,
issued a circular letter advising the cellular operators inter alia, the
following:
“i) Utmost vigilance should be
exercised in providing bulk telephone connections for a single used as well as
for a single location. Provision of 10
or more connections may be taken as bulk connections for this purpose. Special Verficiation of bonafide should be
carried out for providing such bulk connections information about bulk connections
will be forwarded to Sr.DDG (Vigilance).
DoT as well as all Security Agencies on monthly basis.
(ii) The call detail records for
outgoing calls made by mobile customers should be analyzed for the sucribers
making large number of outgoing calls day and night and to the various
telephone number normally, no incoming call is observed in such cases. This can be done by running special program
for this purpose. The service provider
should devise appropriate fraud management and prevention programmed and fix
threshold levels of average per day usage in minutes of the telephone
connection, all telephone connections crossing the threshold of usage should be
checked for bonafide use. A record of
check must be maintained which may be verified by Licensor any time. The list/details of suspected subscriber
should be informed to the Sr.DDG (Vigilance), DoT, West Block-I, Wing-2, R.K.
Puram, New Delhi – 110 066, immediately.
(iv) Caller Line Identification(CLI)
shall never be tampered as the same is also required for security purpose and
any violation of this amounts to breach of security. CLI restricting should not be normally
provided to the customers. Due
verification for the reason of demanding CLIR must be done before provision of
the facility. It shall be the
responsibility of the service providers to work out appropriate guidelines to
be followed by their staff members to prevent misuse of this facility. The subscriber having CLIR should be listed
in a password protected webside with their compete address and details so that
authorised Government Agencies can view or download for detection and
investigation of misuse. However, CLIR
must not be provided in case of bulk connections, call centre, telemarketing services.
(v) Bulk users, premises should be
inspected by the services providers at regular intervals for satisfying
themselves about bonafide use of such facilities. A record of such inspection should be
maintained and preserved for minimum one year, for inspection/verification by
the licensing authority or designated officer of the authority.
(vi) Leased Circuits should also be
checked for their bonafide use and to detect any misuse.”
Respondent thereafter also in terms
of its letter dated 15.10.2004 opining that such international incoming traffic
would amount to tampering of CLI, issued a notice upon the predecessor in
interest of the petitioner namely FASCEL Ltd. stating as under:
“Incoming
international traffic has been observed purportedly coming on Gujarat LSA
subscribers at Vadodara TAX but actually originating from abroad which amounts
to passing ISD Calls through CMTS POI.
This is strictly prohibited and amounts to tampering of the CLI of these
calls, which is in violation of the terms and conditions of the Interconnect
Agreement.
Few of
the sample CLIs observed are 9825174114, 9825351280, 9825212757. Similar calls have been observed from the
month of Sept-04.
As per
the terms and conditions of Interconnect Agreement, incoming international
calls cannot be handed over for termination in the BSNL Network by Private CMTS
Operators at their CMTS POI. Such calls
can be delivered by an ILD Operator at BSNL’s level ‘1’ TAX. Hence as per letter No.208-20/2003-Reg. dated
28.01.2004, BSNL shall charge @ Rs.5.65/- per minute for all incoming calls at
your CMTS POI with Vadodara level-2 TAX.
A provisional bill has been raised and enclosed as per Annexure-1. You are instructed to pay the same by
25.10.04.
This
notice is hereby served on you to refrain from offering ISD calls on CMTS POI
with immediate effect. In case of any
continuing violation of the Interconnect Agreement, your CMTS POI at Vadodara
TAX shall be disconnected without any further notice to you.”
The
said FASCEL Ltd. in terms of its letter dated 19.10.2004 contended that it had
not contravened the Interconnect Agreement and refused to make any payment of
the said provisional bill inter alia, stating:
“If,
through no fault of ours, a very small number of our subscribers are misusing
our service breach the laws of the land, we are ready to assist in any manner
to investigate this and take any action to put a stop to further
activities. However, we cannot be held
responsible or liable for the action of a few subscribers any more than BSNL could
be liable for a criminal using a BSNL landline to extort money.”
By
another letter dated 21.10.2004 the petitioner stated as under:
“We also
assure that we have not tampered and do not tamper with the CLI for any of the
calls handled by us. We take this
opportunity to refer to the numerous occasions in the past when we have
co-operated with BSNL to detect people who carry out such illegal
activities. We reiterate our commitment
to you to continue such assistance in the future also. We strongly believe such illegal activities
are anti-national and cause huge revenue loss to the nation.”
Respondent in response to the said
letters, while acknowledging that FASCEL Ltd. is not an international long
distance operator alleged that international calls were being routed through
its network and were offered at POI with BSNL in support whereof again 6 sample
CLIs observed through purported misuse
was pointed out by a letter dated 01.11.2004.
It was stated:
“Instead of taking corrective action,
you have indicated that you will assist us in doing the investigation. You may kindly note that it is the
responsibility of the Operator to ensure that its customers do not misuse the
services to subvert the laws of the land.
In order to do this, you are required to do bonafide verification of all
the customers, which perhaps, has not been done or done in a very casual
manner.”
By a letter dated 02.11.2004, the
petitioner stated it was in possession of observation sample of the calls which
terminated on its network having CLI of BSNL numbers wherefor a floppy
containing list of such calls was also given for necessary action at its end.
The
respondent was informed that the connections having suspicious numbers have
been disconnected.
Yet again the respondent by its
letter dated 19.11.2004 called upon the petitioner to disconnect all numbers
which were being misused, lodge first information reports with the police
authorities and recover the amount payable to it by way of Access Deficit
Charges (ADC) for such ISD calls.
It might have been possible for the
petitioner to disconnect all numbers which were found to be suspicious in
nature but we feel that it was difficult for it to recover the amount of ADC
for such ISD calls as those were really responsible therefor could not have
been identified.
We have noticed hereinbefore that
First Information Reports (FIRs) were to be lodged by the DoT on the basis of
the information received by it from the cellular operators. The DoT did not say that in each case the
cellular operator must lodge independent FIR as lodging the same at various
places in India would not have led to an investigation of all the cases either
by the same authority or at least by the respective investigating officers in
collaboration with each other. Be that
as it may, non lodging of FIRs by itself could not have clothed the respondent
with jurisdiction to invoke clause 6.4.6 of the contract.
By its letter dated 20.11.2004, the
petitioner informed the General Manager of the respondent in regard to various
actions taken by it for curbing the said illegal activity. Despite the same the respondent by its letter
dated 18.12.2004 reiterated that the petitioner should disconnect those
numbers, lodge FIRs and recover ADC, stating:
“You are further given an
extension for submitting a responsive reply.
The action may be taken within 10 days failing which we will be
compelled to initiate action for recovery of compensation for the loss of
ADC/IUC due to BSNL.”
By another letter dated 27.12.2004
the petitioner informed the respondent as to the action taken by it. Respondent, however, in terms of its letter
dated 17.01.2005 while accepting that it was not an international long distance
operator but the calls were permitted through its POI made it responsible for
payment of ADC for the calls transited.
It was furthermore pointed out:
“You have not specified
whether the FIR have been filed or nor for the numbers which were intimated by
this office earlier letter no.154 dt.18.12.04.
You are again intimated that the liability of payment of bill issued by
this office stand as it is.”
The petitioner by its letter dated
04.03.2005 lodged protest thereagainst, stating:
“We had explained in our
letter dated 27.12.2004 that the mobile numbers given in your letter dated
18.12.2004 were all not in use on that date.
We are following the norms stipulated by the DoT for the prevention of
the ISD call routing, fraud done by some unscrupulous parties across the
country. We take reference to the
various correspondences with your office in this regard to convince you of our
efforts in aiding the Government of India and its agencies in curbing the
menace of ISD illegal call routing.”
By reason of a letter dated
18.03.2005 the respondent furthermore made the petitioner responsible in
respect of the said matter, stating:
“You may kindly note that
it is the responsibility of the operator to ensure that its customers do not
use subvert the law of land and pose any threat to national security. Your approach seems to be very casual and
perhaps indicate active connivance on your side to permit such misuse.
However, this letter is
to reiterate our demand for payment of IUC as per agreement for POI. Since the international calls have emanated
from your network into our POI, we reiterate our stand for your liability of payment
of bills raised by us without any prejudice.
Copy of the bill for Rs.3,54,94,916/- sent to you on 16.10.2004 remains
unpaid till date.”
The petitioner, however, by its
letter dated 04.04.2005 represented that it was not liable to make any payment
to the respondent. The respondent by its
letters dated 16.06.2006, 22.06.2006 and 19.12.2006 reiterated its demands but
no action was taken pursuant thereto or in furtherance thereof.
It however, only on 31.01.2009 i.e.
after more than two years, issued the impugned disconnection notice for alleged
non-payment of the aforementioned demand in support whereof it inter alia relied
on internal instruction from its headquarters dated 31.12.2008 and circular
letter dated 15.01.2009.
Mr.Navin
Chawla, learned counsel appearing on behalf of would contend:
(i)
The
petitioner being not an international long distance operator, the question of
handing over any international call to the respondent would not arise.
(ii)
No
allegation of any tampering/modification of CLI having been made against the
petitioner, the impugned order is wholly illegal.
(iii)
There
is no provision in the Interconnect Agreement between the petitioner and
respondent justifying imposition of demand by it.
(iv)
The
petitioner cannot be held to be liable for any criminal act on the part of its
subscribers.
Mr.Maninder Singh, learned counsel on
behalf of the respondent, on the other hand, urged :
(i)
The
petitioner as a service provider was bound to comply with the directions of the
DoT as well as the respondent and thus it did not lie in its mouth to contend
that it was neither bound to lodge any FIR nor recover the ADC from its
subscribers.
(ii)
The
petitioner having accepted in the petition itself that the calls handed over to
the network of the respondent were international calls, by necessary
implication it must be held to have accepted that there had been a tampering
with CLI as the calls received were only local CLIs.
(iii)
The
petitioner is bound by the internal circular dated 28.01.2004 in terms whereof
the petitioner is bound to pay the entire charges at the highest slab i.e. for
ISD calls.
(iv)
The
petitioner was fully conscious and aware that the international calls were
being received on its network and the same were handed over to the respondent
is clearly guilty of violation of para (viii) of the internal circular dated
28.01.2004.
(v)
The
letter dated 11.11.2004 of the petitioner clearly demonstrates that it could
put in place the system of tracking and picking of data for analyzing usage
pattern in terms whereof it could detect the suspicious telephone numbers
misusing its network.
(vi)
The
delay of approximately one year i.e. between December, 2006 to December, 2007
in sending the disconnection notice, has fully been explained by reason of its
communications dated 31.12.2008 and 15.01.2009.
In this case the Interconnect
Agreement entered into by and between the parties hereto do not contain any
stipulation that in the event of detection of any invalid or tampered CLI the
respondent would be entitled to make a demand on the basis of the highest
number of calls received within a period of two months at the highest slab of
rate i.e. the international calls. It
has not been shown before us that by tampering and/or misusing its network the
petitioner could receive an international call and transfer the same to BSNL as
a local call. No fraud or malice on the
part of the petitioner has been alleged.
Respondent, however, contends that it is not concerned therewith in as much
as when it appears that international calls have been routed through the
petitioner’s network it incurs the civil liability contained in clause 11 of
the circular letter dated 28.01.2004.
In order to appreciate the said
contention we may notice that by reason of the said circular, IUC Regulations
2003 was sought to be implemented.
Clause 11 of the said purported circular reads as under:
“11. The CLI based barring facility shall be
activated at the POIs wherever technically feasible to ensure that the traffic
handed over to BSNL is in the appropriate trunk groups only. Wherever it is technically not feasible to
activate CLI based barring, periodic monitoring of the incoming trunk groups
shall be done by BSNL to ensure this objective.
The calls received without CLI by BSNL from various operators shall be
charged at the highest slab i.e. as for ISD Calls. In case such calls are received by BSNL on a
trunk group not meant for such calls then all the traffic received on such
trunk group for that month billing cycle shall be charged at the rates
applicable for IUC of incoming ISD Calls.”
IUC Regulations, however, do not
contain any such provision. The source
of authority of the respondent to issue and implement such a circular has not
been pointed out before us far less its authority to insert such a provision while
purporting to issue the implementation circular.
IUC Regulation has been framed by
TRAI in exercise of its regulation making power conferred on it under Section
36 of the TRAI Act. IUC Regulation, thus,
is a piece of subordinate legislation.
It comes into effect on its own.
There is no provision in the TRAI or any subordinate legislation made
thereunder authorizing BSNL to issue such circulars. We would, however, assume that such was the
practice. The practice to issue and
implement such circular by no stretch of imagination could authorize the
respondent to create a liability clause of such a nature. In our opinion BSNL could not have done
so.
We may, however, notice the effect
thereof. The first link of the said
circular talks of an obligation. It is not a charging clause. Charging provision is contained in the second
part of the said provision. The second link of the said provision speaks of the
clause received without CLI by the respondent from various operators. In all of its communications the respondent
has categorically stated that CLI had been received by it from the petitioner’s
network.
It may be noticed from the letter
dated 15.10.2004 that the respondents therein themselves had given the CLI
which these calls bore. There was no
allegation that the CLI had been tampered with or modified. By reason of the said notice, thus, a legal
fiction was sought to be created. Before
issuance of the said letter no show cause notice was issued. It is also of some significance that the said
notice was issued within a very short period of the purported detection of some
calls allegedly with non-CLI.
It would appear that such calls were
being forwarded even by the BSNL to the network of the petitioner.
Mr.Maninder Singh, however, submitted
that although some numbers had been disconnected but nothing has been brought
on record in regard thereto as to why such actions could not be taken earlier. It is evident that even the respondent could
not stop such calls nor at the relevant time took preventive measures.
The respondent by a letter dated
03.11.2004 acknowledged that there had been a growth of ‘grey market’ in
international calls which became an area of growing concern for the Department
of Telecom and in view of several communications received in that behalf it is
necessary to take steps to curb illegal routing of international calls. Proposals were made to appoint nodal officers
by each operator in order to curb the menace.
The petitioner, it appears installed
a system for tracking and picking up data for analyzing usage pattern which
could be termed as suspicious and informing of such phones have been
disconnected the details whereof were specified therein.
Submission of Mr.Maninder Singh was
that petitioner thus could prevent the misuse by the user of the said phones
which step it could have taken long back particularly it was all along aware of
the illegal routing of international calls.
It however, would appear that despite strong vigilance the petitioner
out of thousands of million numbers could find only 10 communications which
could be termed as suspicious. The
petitioner, therefore, has done whatever it could legally do.
If the petitioner was neither
authorized to receive international calls it was for the respondent to
demonstrate that the petitioner had introduced certain devices to violate the
terms of the license. Respondent does
not say so. The burden of proof in view
of the conditions of license that the petitioner has tampered with the CLI in a
situation of this nature was upon the respondent. It failed/neglected to discharge the said
burden. By reason of unilateral circular
letter the respondent could not have created an obligation on the part of the
petitioner.
In BSNL & Anr. Vs. BPL Mobile
Cellular Ltd. & Ors - 2008(13) SCC 597, the Supreme Court of India has held
as under:
“51. In the instant case, the resources to be leased out were subject to
agreement. The terms were to be mutually agreed upon. The terms of contract, in
terms of Section 8 of the Contract Act, fructified into a concluded contract.
Once a concluded contract was arrived at, the parties were bound thereby. If
they were to alter or modify the terms thereof, it was required to be done
either by express agreement or by necessary implication which would negate the
application of the doctrine of “acceptance sub silentio”. But, there is nothing
on record to show that such a course of action was taken. The respondents at no
point of time were made known either about the internal circulars or about the
letters issued from time to time not only changing the tariff but also the
basis thereof.
52. We will
assume that the contention of the learned Additional Solicitor General that the
internal circulars are issued for their application by the local officers. If
they have committed a mistake, the same could be rectified. Indisputably,
mistakes can be rectified. Mistake may occur in entering into a contract. In
the latter case, the mistake must be made known. If by reason of a
rectification of mistake, except in some exceptional cases, as for example,
where it is apparent on the face of the record, mistake cannot be rectified
unilaterally. The parties that would suffer civil consequences by reason of
such act of rectification of mistake must be given due notice. Principles of
natural justice are required to be complied with. The fact that there was no
mistake apparent on the face of the records is borne out by the fact that even
the officers wanted clarification from higher officers. The mistake, if any, was
sought to be rectified after a long period; at least after a period of three
years. When a mistake is not rectified for a long period, the same, in law, may
not be treated to be one.
53. Furthermore,
what would be the effect of such a mistake must be determined having regard to
the provisions of the Contract Act.
54. It is not a
case where the contract is sought to be terminated on the ground of a mistake.
Only a higher rate is sought to be enforced on the basis of internal circulars.
55. We
have noticed hereinbefore the effect of an internal circular. There is no
presumption about their correctness. Presumption of correctness of documents is
provided for in Sections 81 and 84 of the Evidence Act. Even the contents of a
newspaper, as envisaged under Section 81 of the Evidence Act, would not be
presumed to be correct.”
Yet again this Tribunal in M/s
Reliance Infocomm Ltd. Vs BSNL (Petition No.224 of 2006), by its order dated
05.05.2009 has held:
“12. We accordingly hold that the Circulars dated
12.6.2006 and 24.7.2006 issued by the Respondent will have no application
whatsoever to any Agreement unless it has been specifically agreed between the
parties that the Agreements entered into prior to the date of these Circulars
are to be amended suitably.”
Submission of Mr. Maninder Singh was
that the petitioner was all along aware that the calls in question were
international calls. In support of such
a contention our attention has been drawn to the following portion of para 1 of
the petition which reads as under:
“It is submitted that the
calls in question arose out of alleged illegal/clandestine telecommunication
facilities/exchanges set up by some private miscreants without any knowledge,
consent, support, authority, abetment or any remote involvement of the
Petitioner. ISD calls were received by
such miscreants in such illegal telephone exchanges/facilities through
International Private Leased Circuits (IPLC), Very Small Aperture Terminal
(VSAT), Internet Service Providers’ Link/Internet Leased Line ISDN(BRA) none of
which is provided by the Petitioner herein.
Normally ISD calls were received by such miscreants through the Voice
Over Internet Protocol (VOIP) and then through computer or other equipment
transferred these calls as local originated calls to the network of the
Petitioner for further transmit/termination as local call using the telephone
connection to the Petitioner/Respondent and/or other telecom operators.”
The said pleadings in our opinion do
not constitute any admission on the part of the petitioner.
In para 1, the petitioner has
contended the nature of the challenge involved therein. It is in that context, it has been contended
that the bills had been raised on the alleged ground of routing of ISD in the
STD trunk in POI at DTAX. A
typographical error has occurred as instead of ‘respondent’, the word
‘petitioner’ has been mentioned. The
statement in question was by way of submission.
The petitioner by reason thereof intended to refute the allegation of
the respondent. It is now a well settled
principle of law that for the purpose of ascertaining admissions contained in a
pleading, the same has to be read in its entirety. So read, in our opinion paragraph 1 of the
petition does not contain any admission of its knowledge that the calls in
question were international calls.
We have noticed hereinbefore that
even the Department of Telecommunication in its circular letter dated
23.06.2003 clearly stated that some miscreants operate clandestine/illegal
exchanges for receiving international calls and distribution of PSTN in
India. The DoT has pointed out that the
miscreants use the types of telecommunication facilities provided by the
operators. The DoT acknowledged that
apart from the national security it causes loss not only to the Government but
also to the telecom operators. It is,
thus, one thing to say that the telecom operators are themselves guilty of commission
of fraud for the purpose of boosting its revenue and thus depriving the
Government therefrom, but it is another thing to say some miscreants have been
operating such clandestine/illegal exchanges and for the said purpose use the
facilities granted by the operators.
We have heretobefore noticed that not
only the facilities of the petitioner but also the facilities of BSNL had been
used by such miscreants. So far as the
petitioner was informed by the respondent about transmission of such calls the
petitioner in turn has also furnished BSNL the requisite particulars to show
that the facilities of BSNL had also been used by such miscreants. The circular letter dated 23.06.2003 does not
create a monetary obligation on the part of an operator. The powers and functions of the Government are
contained in the Indian Telegraph Act.
TRAI Act is being a special statute in respect of the matters specified
therein. In terms of the said enactment
TRAI has been created. Section 11 of the
Act empowers TRAI to fix the terms and conditions of interconnectivity between
the service providers as contained in sub-clause(ii) of Clause (b) of
sub-section (1) of Section 11 of the TRAI Act.
The said provision also contains a non obstante clause.
A non obstante clause confers an
overriding effect over provisions of another enactment in case of any conflict. In Iridium India Telecom Ltd. Vs. Motorola
Inc. - 2005(2) SCC 145, it is stated thus:
“36. ………………….There is no doubt that where the non
obstante clause is widely worded, "a search has, therefore, to be made
with a view to determining which provision answers the description and which
does not". The historical development of the law suggests that the non
obstante clause in Section 129
is intended to bypass the entire body of the Code so far as the rules made by the
Chartered High Court for regulating the procedure on its Original Side are
concerned.”
Reference has therein made to Chandavarkar
Sita Ratna Rao Vs. Ashalata S. Guram – 1986(4) SCC 447, wherein it was stated
as under:
"33. Interpretation must depend on the text and
the context. They are the bases of interpretation. One may well say if the text
is the texture, context is what gives the colour. Neither can be ignored. Both
are important. That interpretation is best which makes the textual interpretation
match the contextual. A statute is best interpreted when we know why it was
enacted. With this knowledge, the statute must be read, first as a whole and
then section by section, clause by clause, phrase by phrase and word by word.
If a statute is looked at, in the context of its enactment with the glasses of
the statute- maker, provided by such context, its scheme, the sections,
clauses, phrases and words may take colour and appear different than when the
statute is looked at without the glasses provided by the context. With these
glasses we must look at the Act as a whole and discover what each section, each
clause, each phrase and each word is meant and designed to say as to fit into
the scheme of the entire Act. No part of a statute and no word of a statute can
be construed in isolation. Statutes have to be construed so that every word has
a place and everything is in its place."
If the petitioner had no hand in the
matter of transmission of an international call to the respondent’s network,
the question of its liability to recover ADC on its behalf would not
arise. The petitioner cannot be subjected
to any fiscal liability for the wrongs committed by a third party. The exchange through which such calls are
transmitted being illegal or invalid ones and the same having been set up by
miscreants, in our opinion no fiscal liability can be harped on the
petitioner. The circular letter dated
24.06.2003 does not provide for any revenue generation. It is a general circular meant for all the
cellular operators. The respondent
cannot take any advantage thereof being not a revenue generation circular in
absence of any such provision in the Interconnect Agreement. It may be one thing to say that conditions of
licence and tariffs provided for in the IUC Regulations may have to be
considered together but it would have no application herein as the circular
dated 24.06.2003 has nothing to do with realization of ADC. ADC is payable to BSNL in terms of IUC
Regulations and not otherwise. If
because of the activities of some miscreants, cellular operators as also the
Government of India suffered a monetory loss, the same cannot be recovered by
one operator from the another on the premise that the later had not fulfilled
its obligation of the DoT circular dated 24.06.2003.
In terms of Section 11(1)(b)(i) of
the TRAI Act it is the function of TRAI to implement the conditions of licence
issued by the licensor and not the respondent.
By reason of the said circular we
would assume the petitioner has incurred certain liabilities. Such liability, if any, having been fastened
upon it by DoT, it is for the DoT to implement the same. Clause (i) of
Clause (iii) provides for appointment
of nodal officers in respect of each service area. Nodal officers were required to be appointed
so that vigilance unit of DoT may contact them.
It was again not for BSNL, who is another service provider, to make any
complaint thereabout. In any event
nothing has been pointed out before us that the nodal officers have not been
appointed.
Clause (iv) speaks of an obligation
on the part of the cellular operators not to tamper the CLI. A responsibility has been thrust upon the
service providers to work out appropriate guidelines to be followed by the staff
members to prevent misuse of the said facility.
The said provision also has been laid down for security purposes. There is no contention that Clause (v) and
(vi) of para 3 have been violated. It is
also not the contention of the respondent that the petitioner has not carried
out its obligations in respect of clauses (v) & (vi). Petitioner has terminated the telephone
connections of those who were found to be suspects.
In terms of circular letter dated
23.06.2003 the service providers were required to pass on the informations to
the DoT. The petitioner had installed
appropriate devices to find out such suspicious numbers. Clause
(ii) of para 3 merely provides for passing of the information to the Senior DDG
(Vigilance). It may not be correct to
contend that reluctance on the part of the petitioner to lodge FIR was a
violation of the said circular letter.
In any view of the matter refusal to lodge an FIR by itself would not
attract clause (ii) of the implementation circular dated 28.01.2004.
We cannot accept the submission of
Mr.Maninder Singh that the implementation circular letter dated 28.01.2004
became a part of the licence. It would
not be, as BSNL had no jurisdiction to issue the said circular and in
particular clause 11 thereof.
In a case of this nature it was
obligatory on the part of the respondent to give an opportunity of hearing to
the petitioner. For whatever reasons, no
action had been taken on the representation of the petitioner and/or refusal on
its part to make any payment for a period of more than one year. The headquarter of the respondent’s letter
dated 28.01.2004 evidently gave rise to the issuance of the demand dated
31.01.2009. It is not the case of the
respondent that the claim of the petitioner is barred by limitation as the
petitioner’s contentions had not been finally rejected by the respondent.
It cannot be said that the petitioner
was guilty of any delay or latches on its part.
Reference to an earlier circular in respect of
We also regret our inability to
accept the contention of Mr.Maninder Singh that a non-CLI call is inherently a
call handed over a trunk groups, in absence of any materials placed in this
behalf and in particular having regard to the reference made differently in
para 11 of the said circular letter.
For the reasons aforementioned, this
petition deserves to be allowed. It is
directed accordingly. The impugned
demands dated 16.10.2004 are set aside.
The respondent shall pay and bear the costs of the petitioner. Counsel’s fee assessed at Rs.1,00,000/-.
…………..J
(S.B. Sinha)
Chairperson
…………….
(G.D. Gaiha)
Member