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2014 Supreme(Online)(TDSAT) 69
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
HON’BLE MR. AFTAB ALAM, CJ, HON’BLE MR. KULDIP SINGH, J
Unitech Wireless (T.N.) Pvt. Ltd. – Appellant
Versus
Bharat Sanchar Nigam Ltd. – Respondent
Petition No.436 of 2013 | Petition No.437 of 2013 | M.A. No. 334 of 2013 | M.A. No. 335 of 2013
For the Appellants/Petitioners:Mr. Meet Malhotra, Sr. Advocate, Mr. Ravi S.S. Chauhan, Advocate, Ms. Padmaja Kaul, Advocate, Ms. Shagun Jain, Advocate, Mr. Prateek Dahiya, Advocate, Ms. Pallak Singh, Advocate, Mr. Anant Ramadhyani, Advocate
For the Respondents:Ms. Maneesha Dhir, Advocate, Mr. K.P.S. Kohi, Advocate, Mr. Prashant Jain, Advocate, Ms. Neha Singh, Advocate, Ms. Anamika Tomar, Advocate, Mr. P.K. Chaudhary, Advocate, Mr. Rajiv Kapur, Advocate
A telecom operator is not liable for port charges as removal costs if cessation arises from license revocation beyond its control.
Headnote:(A) Telecom Regulatory Authority of India - Telecommunication Interconnection (Port Charges) Regulation 2001 - Agreement for interconnectivity requires payment of port charges for removal. - The removal cost is not payable if the cessation is due to circumstances beyond control, as the licenses of Unitech were quashed by the Supreme Court. (Paras 55-68)
(B) Contract Law - The principle of frustration applies when an unforeseen event renders performance impossible and is outlined under Section 56 of the Indian Contract Act. Debated whether obligations arise if losses are self-induced. (Paras 69-72)
Facts of the case:
Unitech, a mobile operator, faced demands from BSNL upon cessation of services post the Supreme Court's quashing of its licenses. The key question was the liability for port charges upon removal of infrastructure.
Findings of Court:
Unitech is not liable for port charges per the interconnections agreement post-license quashing, as it had no control over the circumstances leading to cessation.
Issues: The court addressed liability for cessation costs when operating licenses are quashed by a court.
Ratio Decidendi: The court found that since the cessation of operations resulted from a lack of control by Unitech due to the license cancellation, port charges for removal could not be enforced.
Result: The petitions are allowed.
ORDER
By Aftab Alam, Chairperson –
In terms of the Inter-connect agreement entered into between Bharat Sanchar Nigam Limited (BSNL) and the different private mobile phone operators, if an operator asks for removal and cessation of a port,
The facts of the case are quite simple and brief. The petitioner, M/s Unitech
Wireless Private Limited is a mobile phone operator. At the material time it was in inter-connect agreements with BSNL in several circles where it was operating on the basis of the Unified Access Services Licences granted by the Central Government. As provided under chapter 3 of the agreement it had a numbers of ports installed by BSNL in the latter’s exchanges to allow for inter-connectivity between the two net-works in each of the circles where it was operating. It was Telecom Regulatory Authority of India ‘Port’ is defined as under:
“In this Regulation, a “port” means a place of termination on a Switch/distribution frame to provide a point access or interconnection for ingress and egress of traffic between the two Interconnecting networks. The bandwidth of the Port shall be 2.048 Megabits per second.” duly making payments for all the ports in the different circles as specified by clause 6.3.2, in terms of Regulations framed by the Telecom Regulatory authority of India (TRAI) from time to time. It had also furnished to BSNL, in every circle the requisite bank guarantees as required under clause 7.4 in chapter 6 of the agreement.
All the UAS licences held by Unitech came to be quashed by the Supreme Court by judgment and order dated 12 February 2011 passed in Centre for Public Interest Litigation Vs. Union of India , [2(2012) 3 SCC 1]. By that judgment the Supreme Court found and held that a large number of UAS licences to different operators (122 in all, including all the licences held by Unitech) were granted by the central government in an illegal way. It, accordingly, quashed all those licences and directed the government to grant fresh licences and allocate the spectrum, released as a result of quashing of the licences, through auction after taking into consideration the recommendations of the Telecom Regulatory Authority of India (TRAI) as was done for allocation of spectrum in 3G band. The operative order is contained in paragraph 81 of the judgment which, in so far as relevant for the present, is reproduced below:
"81. In the result, the writ petitions are allowed in the following terms:
(i) The licences granted to the private respondents on or after 10.1.2008 pursuant to two press releases issued on10.1.2008 and subsequent allocation of spectrum to the licensees are declared illegal and are quashed.
(ii) The above direction shall become operative after four months.
(iii) Keeping in view the decision taken by the Central Government in 2011, TRAI shall make fresh recommendations for grant of licence and allocation of spectrum in 2G band in 22 Service Areas by auction, as was done for allocation of spectrum in 3G band.
(iv) The Central Government shall consider the recommendations of TRAI and take appropriate decision within next one month and fresh licences be granted by auction.
(v) xxxxxxxx
(vi) xxxxxxxx
(vii) xxxxxxxx
(emphasis added)
There was some delay in holding the auction and a number of interlocutory applications (IAs) came to be filed before the court by the Union of India and some private operators seeking some clarification or further directions on different issues. On 24 April 2012, di
