Court ruling emphasizes burden of proof on parties and mandates presence of supporting evidence for claims of financial restitution, impacting claims of refunds significantly.

ORDER

Aftab Alam, Chairperson -

Reliance Communications Limited (Reliance) earlier filed petitions claiming refund of large sums of money from Bharat Sanchar Nigam Limited {BSNL), Petition no.142 of 2007 and Mahanagar Sanchar Nigam Limited (MTNL), Petition no.143 of 2007. Those two petitions were allowed in part by a common judgment passed by the Tribunal on 17 October 2012 and the matter presently lies in appeal before the Supreme Court. The Supreme Court has declined to pass any interim order of stay in the appeals filed by MTNL and BSNL and hence, Reliance has filed these two Execution Petitions asserting that in terms of the Tribunal’s judgment on its claim for refunds, it is entitled to be paid Rs.16.43 crores (inclusive of interest calculated up to 31 Oct. 2012) from BSNL and Rs.330.83 crores(inclusive of interest calculated up to 31 Oct. 2012) from MTNL. Besides the aforesaid sums, Reliance also claims from each BSNL and MTNL, proportionate costs of the litigation and the Counsel’s fee fixed by the Tribunal at Rs.1lakh.

Both BSNL and MTNL have filed their respective responses maintaining that reliance is not entitled to be paid anything from them and the Execution Petitions are liable to be dismissed.

The question, therefore, is what Reliance is held entitled to under the judgment? And in order to find that, it is necessary to briefly examine the relief(s) that Reliance asked for in the two petitions and the circumstances in which it came to the Tribunal seeking those relief(s).

Reliance had launched a plan, called “Home Direct Calling” (HDC), purportedly in accordance with a scheme of the International Telecommunication Union. The plan mainly targeted Indians living or visiting abroad. The subscriber to the plan would be told that for calling a number in India (s)he should not dial the desired number directly but instead dial a certain assigned number. The call would thus land on the Reliance network and from there it would be handed over to the other Access Provider with a Calling Line Identification showing a national number. The international code (00) and the country code (e.g., 4 for UK, 1for USA) would be deleted and replaced by local numbers (e.g., 022 3239, 033 3239 or 044 3239) so as to make the origin of the call appear from inside the country. Thus disguised, the call would be landed/terminated on trunk groups of BSNL or MTNL (as the case may be) other than those meant for International Long Dialing calls. The trunk groups of BSNL and MTNL would accept the call as originating from Mumbai, Kolkata or Chennai, process it and raise bill against Reliance accordingly.

When the matter came to light, the department of telecommunication took a serious view of it and slapped Reliance with penalties of Rs.50 crores on each of its three licences. Reliance challenged the imposition of penalties by the DoT before the Tribunal in Petition no. 3 of 2005. It was contended on its behalf that its plan was quite legitimate and within the provisions of the licence. On behalf of the DoT it was maintained that besides being deceitful and in violation of the terms of the licence, the tampering of the Calling Line Identification (CLI) of the call coming to India from abroad was also fraught with grave national security risks. The Tribunal by judgment and order dated 4 March, 2005 dismissed the petition and upheld the imposition of penalties against Reliance. Against the order of the Tribunal, Reliance filed an appeal, Civil Appeal no. 4982 of 2005 before the Supreme Court but it was eventually withdrawn and was dismissed as such by order dated 29 September 2010.

The manner in which Reliance had executed its plan had also caused huge loss of revenue to BSNL and MTNL. For international long distance calls to fixed lines, in addition to the terminating charge, an Access Deficit Charge(ADC) was payable by the International Long Distance Operator (in this case Reliance) to the Access Service Provider (in this case MTNL and BSNL). By sending t