B.S.N.L. Vs VODAFONE ESSAR GUJARAT LIMITED
Bench: RANJAN GOGOI,PRAFULLA C. PANT
Case number: C.A. No.-008107-008107 / 2010
Diary number: 25728 / 2010
Advocates: GAGAN GUPTA Vs
NAVIN CHAWLA
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8107 OF 2010
Bharat Sanchar Nigam Limited ...Appellant (s)
Versus
Vodafone Essar Gujarat Limited ...Respondent (s)
With Civil Appeal No. 8108 of 2010 Civil Appeal No.1105 of 2013 Civil Appeal No.8269 of 2010
J U D G M E N T
RANJAN GOGOI, J.
CIVIL APPEAL NO.8107 OF 2010
1. The challenge in this appeal is to a judgment dated
11.02.2010 passed by the Telecom Disputes Settlement and
Appellate Tribunal, New Delhi (hereinafter referred to as the
‘Tribunal’) by which the demand raised by the appellant BSNL
on the respondent, Vodafone Essar Gujarat Limited, for
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alleged tampering with the Caller Line Identification (CLI) has
been set aside by the learned Tribunal. 2. The facts in brief may be noticed at the outset.
In the year 1996 the competent authority granted a
license to one M/s. Fascel Limited (predecessor-in-interest of
the respondent Vodafone) under Section 4(1) of the Telegraph
Act, 1885. As the successor-in-interest of Fascel Limited, the
respondent entered into an Interconnect Agreement with BSNL
for the purpose of interconnecting its network with the BSNL.
Under the aforesaid Agreement, the respondent was liable to
pay access charges to BSNL for calls originating from its
network and terminating in the BSNL’s network. Under the
Agreement there was an obligation on the part of the
respondent to transmit the authentic CLI for the purpose of
levy of charges in terms of Agreement. CLI essentially is the
information generated by the network which identifies and
forwards the calling number. It must be mentioned, at this stage, that it is during this
period of time that the telecommunication sector was
undergoing revolutionary changes and witnessing innovations
to deal with which both the Department of Telecommunication
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(DoT) and the regulatory body i.e. Telecom Regulatory
Authority of India (TRAI) had issued a series of advisories and
regulatory measures some of which are being indicated
hereinafter. 3. To the issues arising in the present case would be
relevant the circular dated 23.06.2003 issued by the DoT
specifying that CLI cannot be tampered in any circumstances.
By the same circular the DoT also gave directions to service
providers on how to prevent tampering of CLI. The Telecom
Regulatory Authority of India (TRAI) had issued a directive
dated 24.11.2003 to BSNL not to tamper with CLI of any
call; not to offer calls without CLI and also not to accept any
calls without CLI. This was followed by a circular dated
20.01.2004 reiterating the above directions. In exercise of
powers under Section 36 of the TRAI Act, 1997 the Regulatory
Body also made a set of Regulations known as the
Interconnect Usage Charge Regulations, 2003 (IUC
Regulations). In terms of the IUC Regulations, the service
providers were to raise bills on the basis of Call Detail Records
(CDR). Under the CDR based platform in place of the earlier
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prevailing system of metered calls in which call duration in
number of minutes was multiplied by the pulse rate per
minute applicable for the trunk group, under the new regime,
reliance was on the CLI to identify the type of call and apply
the appropriate rates/charges. The BSNL by circular dated
28.01.2004 implemented the aforesaid circular dated
23.06.2003 of the DOT alongwith IUC the Regulations of 2003.
Clause 11 of the aforesaid circular which states that calls
received without CLI by BSNL would be charged at the highest
slab i.e. at the rate of ISD calls, being relevant to the issues
arising, may be noticed below : “The CLI based barring facility shall be activated at the Pols 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 month/billing cycle shall be charged at the rates applicable for IUC of incoming ISD Calls.”
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4. According to the appellant BSNL, monitoring of the
incoming traffic from Vodafone’s network from various
exchanges at Vododara Trunk Automatic Exchange revealed
that many incoming calls were actually international calls
which were routed on the BSNL’s network as national calls.
According to the appellant this was done by Vodafone by
tampering with the CLI and thereby violating the terms and
conditions of the Interconnect Agreement. On the said facts
relying on the circular dated 28.01.2004 particularly clause 11
thereof, the appellant raised a bill of Rs.3,54,94,916/- on
Vodafone at the rate of Rs.5.65 per minute for the period
between July, 2004 to September, 2004. Though the demand
was reiterated from time to time, issues did not get forged
until BSNL issued a disconnection notice dated 5.03.2009
prompting the respondent to move the Tribunal challenging
the demand raised by the BSNL. The Tribunal, by the
impugned judgment, came to the conclusion that the demand
raised by the appellant was illegal and unjustified inasmuch
as the Interconnect Agreement between the parties did not
carry any stipulation that in the event any invalid or tempered
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CLI is transferred to the BSNL network, BSNL would be
entitled to raise the demand at the highest slab rate. The
learned Tribunal also held that the IUC Regulations did not
contain any such provision and the same could not have been
so created on the basis of the unilateral circular dated
28.01.2004 (Clause 11). The Tribunal also held that the BSNL
had failed to establish that the respondent Vodafone by
tampering or misusing its network could receive an
international call and transfer the same to the BSNL’s network
as a local call. Vodafone, it may be noticed, did not have an
International Long Distance Operator (ILDO) Licence. 5. The arguments advanced on behalf of the appellant BSNL
by the learned Solicitor General, in short, is that admittedly
Vodafone had failed to comply with its obligation under the
Interconnect Agreement and had routed international calls as
national calls making it liable to pay damages for the loss
suffered by BSNL. In this regard the learned Solicitor General
has specifically relied on the averments made in Paragraph 1
of the Petition filed by the respondent Vodafone before the
Tribunal to contend that the tempering of CLI on the basis of
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which demand is raised has been admitted by the respondent
Vodafone. Reliance was placed on the decision of this Court in
Bharat Sanchar Nigam Limited Vs. Reliance
Communication Ltd. 1 wherein it was held by this Court that
Clause 6.4.6 of the Interconnect Agreement in the said case,
which is similar to clause 11 of the Circular dated
28.01.2004, was not penal in nature but a pre-estimate of
reasonable compensation and further that it was the duty of
the licensee to maintain the integrity of the exchange/Point of
Interconnect (POI) which the respondent Vodafone failed to
honour. 6. In reply, Shri Navin Chawla learned counsel appearing
for the respondent submits that Vodafone was not an
International Long Distance Operator (ILDO) and could not, in
any way, deliver ISD Calls to BSNL’s network. Learned counsel
has denied that Para 1 of the petition filed before the Tribunal
can be construed as an admission on the part of the Vodafone
as the averments made therein are merely to the effect that if
any international call has been transferred to the BSNL
1 (2011) 1 SCC 394]
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network the same is a handiwork of miscreants. Shri Chawla
has drawn the attention of the court that no specific
allegations had been made that Vodafone was involved in
masking or altering CLI. Learned counsel has further
submitted that BSNL has failed to show how any such calls
could have been generated in the Vodafone’s network for being
transferred to the BSNL’s network. The reliance placed in
Bharat Sanchar Nigam Ltd. vs. Reliance Communication
Ltd. (supra) by the learned Solicitor General is sought to be
countered by Shri Chawla by contending that no clause
similar to Clause 6.4.6 of the Interconnect Agreement in the
said case exists in the Interconnect Agreement between the
parties to the present case. 7. The short question that arises for consideration in the
above premises is whether the appellant BSNL could levy the
highest applicable IUC charges on the basis of Clause 11 of
the circular dated 28.01.2004. One of the recitals to the
Interconnect Agreement is to the effect that BSNL reserves the
right to modify the terms and conditions of the agreement, if it
receives a direction from the licensor or any other competent
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authority to that effect. The circular dated 28.01.2004, clearly,
was not pursuant to any direction from the licensor but was
unilaterally issued stipulating that charges at the highest
applicable rate would be levied for calls coming with invalid
CLI. The circular dated 28.01.2004, being unilateral, does not
become a part of the Interconnect Agreement inasmuch as the
respondent Vodafone had consented to be bound by any
additional/fresh terms and conditions only if the same is/are
issued by the competent authority or pursuant to the
directions of the competent authority. Admittedly, in the IUC
Regulations there was no stipulation for levying charges in the
manner it has been done. In so far as the decision of this
Court in Bharat Sanchar Nigam Ltd. vs. Reliance
Communication Ltd. (supra) is concerned, it will suffice to
notice that Clause 6.4.6 of the agreement between the parties
in that case was not existent in the agreement between the
parties to the present case. That apart the licencee in the said
case Reliance Communication Ltd. (supra) was holding an
ILDO licence unlike the respondent Vodafone in the present
case. On the other hand it appears that the Tribunal correctly
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placed reliance on the decision of this Court in Bharat
Sanchar Nigam Limited. Vs. BPL Mobile Cellular Ltd. &
Ors.2 to hold that circular issued by the DoT does not ipso
facto become a part of the Agreement. 8. Apart from the above it has already been noticed that
before the circular dated 28.01.2004 came to be issued by
BSNL, TRAI had issued an directive dated 24.11.2003 and a
circular dated 20.01.2004 to all operators advising them not
to tamper with CLI of any call and not to offer or accept any
call without CLI. BSNL’s action in receiving calls originating
from the respondent’s network without CLI and the further
decision to charge such calls at the highest rate would,
therefore, be clearly against the aforesaid directions of TRAI.
9. Lastly, the appellant BSNL could not also discharge its
burden to show as to how respondent even by tampering with
its network could wrongly receive and route international calls
when it did not have an International Long Distance Operator
Licence. 10. For the aforesaid reasons, we cannot find any fault with
the conclusions recorded by the learned Tribunal in the
2 (2008) 13 SCC 597
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impugned order under challenge in the present case. The
appeal, therefore, is liable to be dismissed which we hereby do
without, however, any order as to costs.
CIVIL APPEAL NO.8108 OF 2010 AND CIVIL APPEAL NO.1105 OF 2013
11. Both the above mentioned appeals having raised
somewhat similar issues are being answered by the present
common judgment.
12. The appellant – Bharat Sanchar Nigam Ltd. (‘BSNL’ for
short) and the respondent – Bharti Airtel Ltd. entered into an
Interconnect Agreement dated 15.02.2002 that governed two
licenses under the Indian Telegraph Act that were obtained by
the respondent for basic telecom service and mobile telephony
respectively. In the year, 2004 a Unified License was obtained
and the respondent – Bharti Airtel migrated to a Unified
Access License (UAL). The core issue pertains to the validity of
two separate demands raised in the two cases by the appellant
– BSNL for alleged routing non CLI/invalid CLI calls to the
BSNL network by the respondent – Bharti Airtel Ltd.
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13. Before proceeding to deal with the facts and
circumstances surrounding the demand raised, it will be
necessary to note Clause 6.4.6 as contained in the Original
Interconnect Agreement between the parties and, thereafter,
as amended from time to time. While doing so, the details of
certain other circulars/communications etc. would also
require a specific notice. Clause 6.4.6 of the Interconnect
Agreement as originally contained in the Agreement is in the
following terms:
“BSNL will pay access charges for STD/ISD calls originating in the BSNL’s network and delivered to the BSO’s network, at the rate of Rs.0.84 per unit measured call at the point of interconnect to the BSO, only in such cases where the BSNL delivers the call in an exchange other than the BSO’s tandem/terminal exchange. However, for STD/ISD calls delivered from BSNL’s TAX to BSO’s main exchange serving multiple SDCCs, the latter shall be treated as the terminal exchange and no access charges shall be payable by BSNL to BSO.
It is acknowledged that BSNL shall not pay any charges for all types of calls including terminating ISD calls in the following cases.” An addenda was added to the said clause of the
Agreement on 21.07.2004, which is in the following terms:
“Unauthorized calls i.e. calls other than specified for that trunk group if detected, for which the applicable IUC is higher than the IUC applicable for calls prescribed in that trunk group, then BSNL
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shall charge the UASL the highest IUC, as applicable for unauthorized calls, for all the calls recorded on these ports from the date of provisioning of that POI or for the preceding two months whichever is less. In addition, BSNL shall also have the right for taking other legal actions including disconnection of POIs or temporary suspension of the interconnection arrangements under misuse. In case BSNL wishes to disconnect the POI, it shall give a one week notice to UASL. If the unauthorized routing of calls to BSNL is not removed within one week, BSNL shall disconnect the POI.”
Thereafter, with effect from 19.07.2005, Clause 6.4.6 was
further amended in the following terms:
“a. Unauthorised calls i.e. calls other than specified for that trunk group if detected, for which the applicable IUC is higher than the IUC applicable for calls prescribed in that trunk group, then BSNL shall charge the UASL the highest applicable IUC, as applicable for such unauthorized calls, for all the calls recorded on this trunk group from the date of provision of that POI or for the preceding two months whichever is less.
b. 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 without CLI or modified/tampered CLI from UASL shall be charged at the highest slab i.e. as for STD calls. In case such calls are received by BSNL on any trunk group, then all the calls recorded on this trunk group shall be charged at the rates applicable for IUC of incoming ISD calls from the date of
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provisioning of that POI or for the preceding two months, whichever is less.
c. When CDR based billing is introduced in BSNL’s network some of the trunk groups shall be merged. In such cases also, in case unauthorized or incoming international calls, without CLI call, call with tampered CLI is handed over to BSNL at the merged trunk group, then BSNL shall charge the UASL the highest applicable IUC, as prescribed in clauses 6.4.6 (a) above for unauthorized calls & 6.4.6(b) for incoming international call, without CLI call, call for tampered CLI for all calls recorded on this merged trunk group from the date of provisioning of that POI or for the preceding two months whichever is less.
d. In addition, BSNL shall also have the right for taking other legal actions including disconnection of POIs or temporary suspension of the interconnection arrangements under misuse.”
14. In the discussions in connection with Civil Appeal
No.8107 of 2010 (decided by the present order) it has been
noticed that the Telecom Regulatory Authority of India (TRAI)
vide letter dated 24.11.2003 had advised the appellant – BSNL
not to tamper with the CLI of any call and not to offer or receive
calls without CLI. The aforesaid letter was followed by a
circular dated 20.01.2004 issued to the same effect by TRAI. In
the said circular it was specifically mentioned that the
appellant – BSNL’s decision to accept calls without CLI and
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charging therefor at the highest slab was against the TRAI’s
direction.
15. In the said discussions it has also been noticed that on
28.01.2004, the appellant –BSNL issued a circular for
implementation of the Telecommunication Interconnection
Usage Charge (IUC) Regulation, 2003 which, inter alia,
contained Clause 11 dealing with charges leviable on calls
received without CLI and also unauthorized calls. The aforesaid
Clause 11 having already been extracted as a part of the
discussions in Civil Appeal No. 8107 of 2010 will not require a
repetition.
16. There is yet another circular dated 13.06.2005 issued by
the BSNL which must now be taken note of. In the said
circular, it has been stated that there may be many technical
reasons for routing invalid/incomplete CLI calls such as,
“transient faults in the switch, software version/signalling
problem, non-recognition of CLI by exchanges, lack of
capability to analyze all digits by some exchanges” etc. In the
said circular, it was also mentioned that it has been decided
that where non-CLI calls received at the POI were less than
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0.5% of the total number of calls received, the access provider
would be charged for double the number of such non-CLI calls,
at the highest slab i.e. incoming ISD calls .
17. For the period May, 2003 to June, 2005 a demand of
Rs.59,40,94,834/- was raised by BSNL for invalid and
incomplete CLI calls handed over by Bharti Airtel to the BSNL
network. The respondent-Bharti Airtel vide letter dated
21.04.2006 claimed that the irregularities as mentioned were
on account of technical faults at the BSNL’s end. The said
plea was rejected by the BSNL upon due enquiry. Thereafter,
the respondent produced a certificate dated 29.05.2006 issued
by the supplier of its switch box i.e. Siemens offering technical
explanations for non display of CLI in respect of calls with 10
digits to the BSNL network. This was not acceptable to BSNL
who thereafter issued a disconnection notice leading to the
proceedings before the Tribunal wherein by order dated
11.02.2010 the learned Tribunal had set aside the demand
raised by the appellant-BSNL.
18. The basis on which the Tribunal seems to have answered
the question is that while Clause 6.4.6 of the Interconnect
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Agreement relating to non-CLI calls came into effect only in
July 2005 (19.07.2005), the demands raised were prior to the
date of coming into effect of the amended Clause 6.4.6. The
learned Tribunal also concluded that the certificate issued by
Siemens with respect to the technical glitches was not
considered by BSNL in proper prospective and further that the
respondent was not given an opportunity to perform a
simulation exercise to establish the reasons for calls being
handed over to the BSNL network without CLI.
19. Aggrieved by the aforesaid order, Civil Appeal No.8108 of
2010 has been filed by the appellant-BSNL.
20. We have considered the respective submissions of the
parties. On behalf of the appellant-BSNL it is argued that
though Clause 6.4.6 of the Interconnect Agreement had come
into force with effect from 19.07.2005, clause 11 of the
circular dated 28.01.2004 empowered the BSNL to raise the
demands in question. It is urged that Clause 11 of the said
circular became effective from 01.05.2003 i.e. date from which
the IUC Regulations became applicable. The
respondent-Bharti Airtel, according to the appellant, has also
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not been able to establish its compliance with the stipulation
and conditions incorporated in the DoT circular dated
24.06.2003. The plea of technical glitches alleged by the
respondent-Bharti Airtel has been contended to be wholly
unsustainable inasmuch as Siemens is the vendor of the
service provider (Bharti Airtel) for which reason the certificate
issued is unworthy of credit.
21. In reply, learned counsel appearing for the
respondent-Bharti Airtel has drawn the attention of the Court
to the finding recorded by the Tribunal that the irregularities
in the 10 digits CLI calls handed over to the BSNL network
was not because of any deliberate violation or wrongful
conduct and that such deficiency was on account of technical
glitches in the switch box/gear provided by Siemens. The said
finding is final and conclusive. It is further urged that the
circular dated 28.01.2004 being a unilateral exercise by BSNL
cannot authorize the BSNL to raise the demand in question
particularly when the IUC Regulations, 2003 did not contain a
provision to the said effect empowering the BSNL to so act.
Reference has also been made to the circular of the TRAI dated
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20.1.2004 particularly in respect of the fact that BSNL’s
decision to accept calls without CLI and then to charge for
such calls at the highest slab rate was against the direction of
the TRAI.
22. Having considered the respective submissions of the
parties, we find that the matter lies in a short compass. The
allegation against the respondent operator is with respect to
handing over calls with invalid CLI to the BSNL network.
Clause 6.4.6 of the original Interconnect Agreement between
the parties dealt with the computation of access charges. The
July, 2004 amendment, prospective in nature, dealt with the
liability in case of unauthorized calls i.e. calls other than
specified for a particular trunk group. The subsequent
Addenda dated 19.07.2005 dealt with calls without CLI and
the charges applicable. The recital to the Addenda clearly
states that it is prospective in operation. If that is so, we do
not see how on the strength of Clause 6.4.6 which came into
effect from 19.07.2005 the demand for the period upto June
2005 could have been raised by BSNL. The contention of
BSNL that the said demand would be justified on the strength
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of clause 11 of the circular dated 28.01.2004 also cannot have
our acceptance in view of the fact that we have held the above
issue against the BSNL in Civil Appeal No.8107 of 2010 (BSNL
v. Vodafone Essar Gujarat Limited), decided today.
Furthermore, the finding of the Tribunal that the demand
raised by BSNL would not be justified in view of the certificate
issued by Siemens, the manufacturer of the switchgear
instituted in the Respondent’s POI, a pure finding of fact,
would provide an additional plank for our decision to dismiss
the present appeal filed by the appellant-BSNL, which we
hereby do.
CIVIL APPEAL NO.1105 OF 2013
23. Two bills raised by BSNL against the respondent-Bharti
Airtel in respect of its cellular services form the subject matter
of the present appeal. The first bill is for the period May, 2003
to January, 2004 and the second bill dated 03.06.2009 is for
the period February, 2004 to November, 2004. The learned
Tribunal vide its judgment dated 11.02.2010 partly allowed
the demand for the period 21st July, 2004 to November, 2004
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by holding that for the said period the appellant-BSNL would
be entitled to charge the respondent for double the number of
actual calls which did not have any CLI on the basis of the
circular of BSNL dated 13.06.2005 whereas for the period
May, 2003 to 21st July, 2004 its judgment dated 11.02.2010 in
the case between same parties (subject matter of Civil Appeal
No.8108 of 2010 would govern the issue).
24. Having heard the learned counsel for the parties and on
due consideration, we find that the Tribunal failed to notice
bill dated 23.07.2008 for the period May, 2003 to January,
2004 was solely with respect to calls with invalid CLI. The
period of demand therefore is before the date of the addendum
to Clause 6.4.6 i.e. 19.07.2005. This issue, therefore, will
stand decided by the present order insofar as Civil Appeal
No.8108 of 2010 is concerned. The second bill dated
30.06.2009 for the period February, 2004 to November, 2004
was a consolidated bill for non-CLI calls as well as trunk
group violation. For the latter violation the demand as
mentioned in the said bill is Rs.76.26 lakhs. This later
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demand, in part, appears to be in order in light of the Addenda
to Clause 6.4.6 dated 21.07.2004.
25. Accordingly, the appeal is allowed to the aforesaid extent,
namely, by holding that the liability for trunk group violation
for the period 21.07.2004 to November, 2004 can be
legitimately levied on the respondent-Bharti Airtel in terms of
Clause 6.4.6 added in the Interconnect Agreement by Addenda
dated 21.07.2004. The appellant may work out the precise
quantum of penalty on the aforesaid basis which will be paid
by the respondent.
CIVIL APPEAL NO. 8269 of 2010
26. The respondent – Tata Teleservices Ltd. had challenged
the demand notices dated 03.09.2006, 23.03.2007 and
09.04.2007 issued by the appellant - BSNL whereby it called
upon the respondent to pay an amount of Rs.10,63,88,772/-
in terms of Clause 6.4.6 of the Interconnect agreement which
is in the same terms as introduced by the addenda dated
19.07.2005 in the case of Bharti Airtel (supra), details of which
have been noticed herein above in the discussion pertaining to
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the said appeal (Civil Appeal No.8108 of 2010). The demand
notices were issued for the period from May 2003 to May 2004
and the irregularity/illegality alleged is transfer of non
CLI/wrong CLI calls to the BSNL network.
27. The learned Tribunal by its impugned judgment dated
11.02.2010 had set aside the demand(s) on the ground that as
Clause 6.4.6 was added to the Interconnect agreement
between the parties to the present case by the addendum
dated 01.12.2005 with effect from 14.11.2003, the same,
therefore, can have no application to the period prior thereto.
It was also held that a comparison of the CDRs of both parties
showed that CLI was available on the CDR of Tata Teleservices
Limited and not with the BSNL. Therefore, the fault lay in the
system of B.S.N.L. for which the respondent cannot be
penalized. The Tribunal further held that the Circular dated
13.06.2005, relied upon by BSNL to support the impugned
demand, details of which have already been noticed in the
case of Bharti Airtel (supra), itself provides for due application
of mind necessitating an enquiry as to the reasons for the
irregularities/shortcomings in the display of the CLI. No such
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opportunity was afforded to the respondent by BSNL before
resorting to the impugned demand(s).
28. Elaborate arguments had been advanced on behalf of
both sides, the core of which, insofar as BSNL is concerned, is
that Tata Teleservices Limited having taken the benefit of the
Circular dated 13.06.2005, (made effective from 01.05.2003)
for the latter part of the period involved, its liability would
accrue from the said date and the demand has been worked
out on the basis that 48.9% of the calls are non-CLI calls and
therefore Clause 6.4.6 would apply. It is urged that the
contention of the Tata Teleservices Limited that the calls are
less than 0.5% is plainly incorrect.
29. In reply, it is urged that Clause 6.4.6 of the Interconnect
agreement, in the form and content in which it has been
applied to the case of the respondent, was introduced by the
addendum dated 01.12.2005, effective from 14.11.2003. In the
present case, the alleged violation of Clause 6.4.6 is on the
ground of transmitting calls without CLI. It is urged that upto
the date on which Clause 6.4.6 came into operation i.e.
14.11.2003, the demand raised on the said basis is without
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any authority. It is further submitted that the receipt of calls
without CLI having been disapproved/rejected by the TRAI and
there being express directions requiring BSNL to reject such
calls, the appellant cannot take advantage of its own action
contrary to the directions of the Regulator i.e. TRAI.
Furthermore, according to the respondent, the Circular dated
13.06.2005 prohibits BSNL to mechanically apply Clause 6.4.6
and it is only upon elimination of technical failures,
incompatibility between exchanges, etc. that Clause 6.4.6 can
be resorted to and that too for the period after 14.11.2003.
30. In a situation where it is the case of the appellant BSNL
itself that non-CLI calls transmitted by the Tata Teleservices
Limited to the BSNL network was more than 0.5% and hence
Clause 6.4.6 of the Interconnect agreement would be
applicable, ex facie, the demand raised for the period from May
2003 to November 2003 would be without any legal authority
inasmuch as Clause 6.4.6 became a part of the Interconnect
agreement between the parties with retrospective effect from
14.11.2003.
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31. In view of the aforesaid finding recorded by the learned
Tribunal with which this Court is in full agreement, it will not
be necessary to go into any other issue so far as the demand
for the said period is concerned. For the remaining period i.e.
November, 2003 to May 2004 during which period Clause
6.4.6 was in force, the finding of the learned Tribunal that
Tata Teleservices Limited should be given an opportunity and
the quantum of loss suffered by B.S.N.L. should be computed
accordingly would, however, require a close look. In Bharat
Sanchar Nigam Ltd. Vs. Reliance Communication Limited
(supra), this Court has held that Clause 6.4.6 prescribes a
pre-estimate of reasonable compensation. The premise on
which the learned Tribunal had held the necessity of affording
an opportunity to Tata Teleservices Limited for determination
of the quantum of loss suffered by BSNL for the period from
November 2003 to May 2004 proceeded on the basis that
Clause 6.4.6 is a penal clause. As the said basis stands altered
by the decision of this Court in Bharat Sanchar Nigam Ltd.
vs. Reliance Communication Limited (supra), computation
of liability for the period from November 2003 to May 2004,
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during which period Clause 6.4.6 was in operation, must
necessarily be made in accordance with the terms of the said
clause. The order of the learned Tribunal, therefore, to the
aforesaid extent, is set aside and the appeal is partly allowed.
The demand raised for the period from May 2003 to November
2003, as held earlier, shall stand set aside while for the period
from 14.11.2003 to May, 2004 shall be determined in
accordance with Clause 6.4.6 of the Agreement as brought
into effect with retrospective effect from 14.11.2003.
….……......................,J. [RANJAN GOGOI]
….……......................,J. [PRAFULLA C. PANT] NEW DELHI; SEPTEMBER 23, 2016.