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SUPREME COURT OF INDIA
S.B. Sinha, Lokeshwar Singh Panta, JJ.
Bharat Sanchar Nigam Ltd. & Anr - Appellants
Versus
BPL Mobile Cellular Ltd. & Ors - Respondents
Civil Appeal Nos. 6341 of 2003, 1537 and 2015 of 2004 and 3448 of 2006
Decided On : 14-05-2008
Indian Telegraph Rule – Rules 475, 478, 494 – Indian Telegraph Act, 1885 – Sections 7, 9, 10 – Minimum guarantee period – Civil Appeal involve the question of payment of charges – Civil Appeal involves the question as to the effect of pre-mature surrender of fifteen leased circuits of 2 MBPS which had been obtained by BPL from DOT during the period January 1997 to June 1998 – Civil Appeal No. 3448 of 2006 involves a dispute in relation to minimum guarantee period for 2 MBPS leaded lines. – Held, Proviso appended to Section 9 and Section 10 providing for a minimum guaranteed period of three years does not appear to have any application – Authorities of the DOT also did not think so. – They proceeded on the basis of and having regard to the phraseology used in Rules 478 and 496 that minimum period is only three months. – Applicability of minimum guaranteed period of three years was sought to be enforced from a circular letter only. – Effect of the said circular letter has been discussed hereinbefore. – Court have furthermore noticed the vacillating stand taken by the appellants herein in the case of C.G. Faxemail. – They sought to charge the double of the amount as prescribed in the contract on the basis that the service which is being provided by them is close user group service. – TRAI held it not to be so. – TRAI, as noticed hereinbefore, relied upon two circulars only, latter one being after the contract was entered into. – TDSAT, apart from holding that the said circular letters are internal documents, did not deal with the internet service providers. – It thereafter relied upon the circular letter and not on the circular letter, the former having no application to a contract which was entered into prior thereto. – Even the said letter provided for three months minimum guarantee period for long distance lease lines. – Even DOT raised three months demand notice on or about 26.11.1998. – Court do not find that these appeals raise any substantial question of law warranting interference. – Appeals Dismissed
JUDGMENT :
S.B. Sinha, J.
The core question involved in this appeal is the effect of the application of internal circulars issued by the Department of Telecommunications (DOT) in the contracts entered into by and between the parties hereto in respect of as regards inter-connection links provided by it.
2. Civil Appeal Nos. 6341-6342 of 2003, 1 of 2004, 537 of 2004 and 2015 of 2004 involve the question of payment of charges. Civil Appeal No. 6375 of 2003 involves the question as to the effect of pre-mature surrender of fifteen leased circuits of 2 MBPS which had been obtained by BPL from DOT during the period January 1997 to June 1998. Civil Appeal No. 3448 of 2006 involves a dispute in relation to minimum guarantee period for 2 MBPS leaded lines.
3. Judgments were delivered by the Telecom Disputes Settlement and Appellate Tribunal, New Delhi (TDSAT) on various dates, viz., 1.04.2003, 17.02.2003, 8.09.2003 and 3.03.2006.
4. Before, however, we consider the views taken by the Tribunal, we may notice the facts involved in each of the case separately. Civil Appeal Nos. 6341-42 of 2003 DOT circulated a booklet "commercial information on leased circuits" clearly providing for that the rent and guarantee charges for leased circuits would be on capital cost basis and only after the guarantee period has expired, it would be on capital cost or flat rate whichever is higher. Clause 7.0 of the said booklet provides for rent and guarantee charges to the following effect :
"(xi) Contribution Works - This term is applied to works of construction or repair the cost of which is met, not out of funds of the Department, but out of funds supplied by private persons, local bodies, other Government Departments, etc." Respondents herein are providers of cellular mobile services. They did not have the requisite infrastructure. DOT had the requisite infrastructure to provide interconnecting links/circuits and other resources. Respondents entered into a licence agreement with the Government of India for operating/providing cellular services in the 4 State of Kerala. Similar agreement were entered into for inter- connection links in other parts of the country. Basically we are concerned with Clause 4.1 of the said agreement, which reads as under :
"The resources required for operation of the services for extending them over the network of the DOT and MTNL and any other service provider licensed by the Authority will be mutually agreed between the parties and shall be listed. The resources may refer to include but not limited to physical junctions, PCM derived channels, private wires, leased lines, data circuits, other communication elements. The Licensee shall apply for and obtain from the DOT the determined resources. The operation and charge of the traffic passed through these resources shall be treated on the basis of the prevalent rules and the guidelines of the DOT on the subject."
Allegedly, pursuant to the instructions issued by the DOT, the respondents imported equipment worth Rs. 30 lakhs. The said equipments were to be installed. The DOT issued a letter on 2.08.1996 stating that such equipments could be installed and, furthermore, suggested that the required digital microwave equipment should be installed on "contribution work" basis. However, it is beyond any cavil of doubt that owing to resistance to the said move and resorting to strike by the employees of DOT, the respondents were not allowed t
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