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CASE NO.: Appeal (civil)  7200 of 2002

PETITIONER: Bharti Telenet Ltd.

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 31/03/2005

BENCH: ASHOK BHAN A.K.Mathur

JUDGMENT: J U D G M E N T

With

Civil Appeal No. 1816 of 2003

BHAN, J.

       These appeals are statutory appeals under  Section 18 of the Telecom Regulatory Authority  of India Act, 1997 [for short "the Act"] against  the final judgments and orders dated 29.7.2002  and 19.12.2002 passed by the Telecom Disputes  Settlement & Appellate Tribunal, New Delhi [for  short "the Tribunal"] dismissing the appellant’s  applications for condonation of delay and  consequently the statutory appeal No. 1 of 2002  and Appeal No. 9 of 2002 under Section 14 A read  with Section 14A (2) of the Act challenging the  order/determination dated 15.6.2001 and  order/letter dated 29.8.2002 passed by the  Telecom Regulatory Authority of India.

       At the first instance Appeal No.  7200 of  2002 arising from the Appeal No. 1 of 2002  decided on 29.7.2002 will be taken up for  consideration and thereafter the second appeal  No. 1816 of 2003.

       We are stating the facts as found by the  Tribunal, as there is no dispute on them.  

Appellant is a licensee to provide basic  telephone services to subscribers in Madhya  Pradesh. As a part of the licence agreement the  appellant is expected to develop its own  telecommunication network within its own service  area, viz., Madhya Pradesh and also interconnect  with the network of Bharat Sanchar Nigam  Limited, respondent No. 2,  [for short "the  BSNL"] so as to provide national and inter- circle links which is currently available with  only BSNL. This link is also required to connect  the subscribers of the appellant with the  subscribers of BSNL within the same service  area, viz., Madhya Pradesh. The issue under  dispute is the location of points of  interconnection between the appellant and BSNL.  The appellant claims that as per the terms and

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conditions of its licence it is entitled to  carry the traffic originating from its own  subscribers to the farthest point through its  own network before handing it over to BSNL at  the point of interconnection [ for short "the  POI"].   BSNL, on the other hand, is of the  opinion that the licence agreement clearly  stipulates that the two respective networks and  the points of interconnection of the appellant  and BSNL would have to be at equivalent level.  Thus within the short distance charging area  [for short "the SDCA"], the interconnections  would have to be at the level of local and  tandem exchanges. In so far as long distance  charging area [for short "the LDCA"] are  concerned, the point of interconnection would  have to be located between the trunk automatic  exchanges of the long distance charging area  of  both BSNL and the appellant. For this, BSNL  contends that the appellant would have to build  up a parallel network within their long distance  charging area  on the same pattern as the  network hierarchy of BSNL starting with the  short distance charging area.  In case the  appellant does not have its own trunk automatic  exchange  in the long distance charging area it  would have to bring the traffic from its own  short distance charging area  tandem with local  exchange to the nearest to the trunk automatic  exchange of BSNL for onward  transmission/carriage to any other trunk  automatic exchanges.  Since BSNL has the trunk  automatic exchange in each long distance  charging area  this practically means that the  appellant would have to handover all long- distance traffic in the same long distance  charging area  in which it has originated.    

The dispute arose in October 2000 when the  Chief Genral Manager, Madhya Pradsh Circle, BSNL  informed the appellant in a meeting about the  manner in which BSNL would provide points of  interconnection in handing long distance   traffic originating from the subscribers of the  appellant.  Since mutual discussions held  subsequently did not prove fruitful, the  appellant approached Telecom Regulatory  Authority of India [for short "the TRAI"] for  appropriate orders and directions on 6.12.2001.

       After hearing both the parties, TRAI  decided the case as under: "In the light of the foregoing the  Authority has come to the following  conclusions:-

(i)     BSNL’s refusal to accept at  Ujjain and Indore, the STD  inter network traffic for calls  originating in other LDCAs is  in accordance with the  stipulations in the license  agreement as well as  interconnect agreement signed  by both the contending parties.

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(ii)    Clause 1.7.6.5. of the licence  agreement gives the licensee  option of carrying a STD call  entirely on his own network  within the circle/service area.

(iii)   This clause (1.7.6.5.) also  gives the licensee the option  of far end hand over of calls  to BSNL for termination only.  The licensee may, therefore,  also use his network to carry  inter-Network calls to the Far  End and hand over in the  terminating LDCA/SDCA to the  DOT (now BSNL) in the same  manner as is permitted to the  DOT (now BSNL) in the license  agreement. The BSNL should not  refuse such Far End hand over  from licenses received by them  for termination within the  LDCA.

(iv)    Intermediate hand over of calls  for terminating is not in  conformity with the license  agreement as well as  interconnect Agreement and,  therefore, neither the licensee  nor the BSNL is obliged to  accept any such hand over of  calls.

Though this Order has been made  in relation to the specific  complaint relating to Madhya  Pradesh Circle, it will have  general applicability in  similar interconnect  scenarios."                                  [Emphasis  supplied]

Since the Tribunal did not decide the  dispute on merits and dismissed the appeals as  barred by limitation we would also confine  ourselves to the question as to whether "in the  facts and circumstances of the case the  appellant had shown sufficient cause to condone  the delay in filing the appeal and the Tribunal  has erred in the exercise of its jurisdiction in  holding that sufficient cause for condoning the  delay had not been shown and consequently  dismissing the appeal barred by time.

       Section 14A (2) and (3) of the Act which is  relevant for this case are reproduced below:

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"14A. Application for settlement of  disputes and appeals to Appellate  Tribunal.-(1) The Central Government  or a State Government or a local  authority or any person may make an  application to the Appellate Tribunal  for adjudication of any dispute  refereed to in clause (a) of section  14.

(2) The Central Government or a State  Government or a local authority or  any person aggrieved by any  direction, decision or order made by  the Authority may prefer an appeal to  the Appellate Tribunal.

(3) Every appeal under sub-section  (2) shell be preferred within a  period of thirty days from the date  on which a copy of the direction or  order or decision made by the  Authority is received by the Central  Government or the State Government or  the local authority or the aggrieved  person and it shall be in such form,  verified in such manner and be  accompanied by such fee as may be  prescribed:

Provided that the Appellate Tribunal  may entertain any appeal after the  expiry of the said period of thirty  days if it is satisfied that there  was sufficient cause for not filing  it within that period."

TRAI passed the order on 15.6.2001 and  communicated the same to the appellant on that  very day under a covering letter dated  15.6.2001.  On 17.8.2001 a review application  was filed which was dismissed by the TRAI on  27.11.2001.  A copy of the said order was  received by the appellant on 5.12.2001.  The  appeal was filed on 2.1.2002, i.e., within the  period of 30 days from the communication of the  order dismissing the review application and  after a delay of 172 days from the passing of  the order dated 15.6.2001 along with an  application seeking condonation of delay in  filing the appeal.   

TRAI made its order under Section 11  (1)(b)(i) and (ii) of the Act.  Though the order  was made in relation to specific complaint  relating to Madhya Pradesh Circle but was same  was ordered that "it will have general  applicability in similar interconnect  scenarios."  Since that order was made  applicable generally to all the telecom  operators, appellant forwarded a copy of the  said order under cover of letter dated  17.06.2001 to its Association (Association of  Basic Telecom Operators \026 ’ABTO’ for short), for

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seeking review of the order in collective  interest.   ABTO circulated the said order among  its members vide its circular dated 19.06.2001.   Executive council of ABTO met on 20.6.2001 and  26.6.2001 in which the order/determination of  the TRAI was discussed and deliberated. At the  subsequent meeting held on 27.6.2001, Executive  Council of ABTO observed that members had agreed  for the need to file a petition challenging the  order of the TRAI before the Tribunal.  On  17.7.2001 appellant reminded the Secretary  General of ABTO about the said decision of the  executive council and requested to convey the  action taken, if any.  

On 26.7.2001 ABTO informed the appellant  that some of the members of ABTO had reservation  about filing the appeal before the Tribunal  challenging the said order. It was contended by  them that since the order was passed affecting  all the members/basic service operators without  affording an opportunity of hearing to the  members (except the Appellant herein), it would  be appropriate to file a review application  before the TRAI.   Appellant again represented  to the ABTO that the said order dated 15.6.2001  was causing huge loss and financial hardship to  the appellant and requested for collective  action under the aegis of ABTO at the earliest.   On 17.8.2001 ABTO filed a review application  before the TRAI for review of the order dated  15.6.2001.  

TRAI dismissed the review application on  27.11.2001.  The order passed in review was  again discussed amongst the members of the ABTO  but no consensus was forthcoming till 2.1.2001.   By way of abundant caution and since the  appellant was the most affected by the order of  the TRAI the appellant filed the appeal before  the Tribunal on 2.1.2002 challenging the order  of the Tribunal dated 15.6.2001  along with  application seeking condonation of delay in  filing the appeal.  To the application filed by  the appellant reply was filed by the respondent  and on the direction issued by the tribunal the  appellant filed a supplementary affidavit  explaining the delay.

The Tribunal dismissed the application for  condonation of delay and held that the  application for condonation of delay was  speculative and was not      bona fide.   That   the appellant had failed to make out a case for  condoning the delay for 172 days in filing the  appeal.   The tribunal recorded the following  three findings for coming to the aforesaid  decision:

"It will be clear from this letter  that BTNL abandoned its earlier  decision to prefer an appeal and  decided to extend full support to  ABTO if a review petition was filed  instead of an appeal. This review

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petition was filed on 17.8.2001 well  after expiry of the period of  limitation for preferring an appeal  i.e. 14.7.2001."

"In the review petition filed by ABTO  before TRAI, the appellant did not  separately join as a party even  though TRAI had passed the  determination order on the  application made by the appellant. It  is also significant that ABTO has  kept itself away from the present  appeal filed by the appellant. We  are, therefore, of the opinion that  the appellant has failed to furnish  sufficient cause for not preferring  the appeal within the statutory time  limit."

       "There is another aspect of this  case. The review petition made by  ABTO was dismissed by TRAI on  5.12.2001. The determination made by  TRAI has been accepted by the other  members of ABTO. A number of  interconnect agreements with BSNL  have been signed by the members of  ABTO on the basis of the  determination made by TRAI on  15.6.2001. The petitioner who has  preferred this appeal before us also  signed an interconnect agreement with  BSNL on 6.12.2001 in respect of  Haryana Circle. After filing this  appeal in this tribunal, the  petitioner on 15.2.2002 has entered  into two more agreements with BSNL in  which the determination made by TRAI  has been accepted and made part of  the agreements."

With respect we do not agree with either of  these reasons recorded by the Tribunal for  dismissing the application filed by the  appellant in condonation of delay.

       In the instant case before passing of the  order dated 15.6.2001 the issue of BSNL’s  refusal to accept intermediate hand  over of  transit calls of long distance charging area  in  Madhya Pradesh Circle  (licensed to the  appellant), was specific and confined to the  appellant and therefore the appellant directly  approached TRAI for appropriate direction to  BSNL.   Since the order dated 15.6.2001  expressly stated that the order would have  general applicability in similar interconnect  scenarios, the appellant being a member of the  Association not only had an option but was also  bound by the spirit of unity to approach the  Association and consult other members.   In any  event being a member of the Association the

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appellant had the option to either challenge the  order individually or through the aegis of its  Association and neither course of action could  be said to be inexplicable.    The Tribunal has  erred in holding that the appellant had  abandoned its decision to prefer an appeal or  its right of appeal merely because it conveyed  to the Association that it will extend its  support to the Association if a review is filed  instead of an appeal against the said order.   The appellant’s support to the Association in  filing review petition is not indicative of its  abandonment of its right to file appeal.  Mere  acquiescence of the appellant at one stage to  file the review petition instead of the appeal  would not amount to the abandonment of its right  to file the statutory appeal or to an estoppel  disentitling it from claiming the relief in  appeal.   

This Court in Sha Mulchand & Co. Ltd. vs.  Jawahar Mills Ltd., Salem, AIR 1953 SC 98 held:    

" Further, whatever be the effect of  mere waiver, acquiescence or laches  on the part of a person on his claim  to equitable remedy to enforce his  rights under an executory contract,  it is quite clear, on the  authorities, that mere waiver,  acquiescence or laches which does not  amount to an abandonment of his right  or to an estoppel against him cannot  disentitle that person from claiming  relief in equity in respect of his  executed and not merely executory  interest. [See per Lord Chelmsford in  Clarke’s case (supra) at p. 657.]  Indeed, it has been held in \026 ’Garden  Gully United Quartz Mining Co. v.  McLister’, (1876) 1 A C 39 that mere  laches does not disentitle the holder  of shares to equitable relief against  an invalid declaration of forfeiture.  ..."     

       In the instant case, the mere letter of  appellant stating that it would extend support  to the Association if review petition is filed  instead of appeal cannot amount to abandonment  of its right to challenge the invasion of and  interference with its legal/contractual right.   The Tribunal failed to appreciate that filing of  an appeal or review petition by the appellant or  through its Association or joining itself or the  Association as a party to the proceeding  initiated by either of them to avail of either  of the alternate procedures available to the  aggrieved party in the given circumstances could  not be said to be inexplicable or fatal for not  choosing the other procedures.

       Tribunal has misconstrued the fact that the  ABTO  kept itself away from the present appeal

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filed by the appellant. Firstly, action of an  Association was guided by the majority opinion  of its members.  Secondly, in the given  circumstances of stiff competition amongst  members it was the lack of consensus amongst the  members and the failure/delay on the part of the  Association which drove the appellant to file  the appeal itself before the Tribunal.  Hence  whether or not the Association joined the appeal  filed by the appellant is irrelevant for  considering the merits of the appellant’s case  much less for deciding whether or not to condone  the delay in filing the appeal.  Acceptance of  TRAI’s determination dated 15.6.2001 by other  members of ABTO signing of interconnect  agreements with BSNL by other members on the  basis of the said determination or signing of  such agreement by the appellant in respect of  Haryana Circle or any other service area except  the Madhya Pradesh circle, have no relevance to  the case at hand.  Merely because the  interconnect scenarios in other service  area/circles permit or enable the licensees  there to sign the interconnect agreement even  though such agreement is contrary to the express  provisions in the licence agreement for the M.P.  Telecom Circle the appellant cannot be denied  its legal/contractual right flowing from the  subsisting licence agreement.  Therefore, the  Tribunal erred in holding that having accepted  and acted upon the determination made by TRAI in  Haryana, Karnataka and Tamil Nadu Circles, the  appellant cannot contend to the contrary in  respect of Madhya Pradesh circle alone.  The  licensees have varying levels of network in the  various licensed areas and if the network in one  service area permits the licensee to accept the  said determination, it does not follow that the  licensee in another service area could be denied  his contractual rights regardless of the nature  and extent of its network there.

       In our view, the Tribunal erred in holding  that on the facts of the case a ground of  condonation of delay of 172 days in preferring  the appeal was not made out.  The point in issue  was of general importance and since there was no  authoritative pronouncement of the Tribunal or  of this Court on the point in our view the  Tribunal should have condoned the delay and  decided the appeal on the merits.

       CIVIL APPEAL NO.  1816 OF 2003         The Tribunal has dismissed the appeal filed  by the appellant relating to Haryana Circle by  holding that there was an enormous delay of more  than 450 days in preferring the appeal from the  earlier order of the TRAI dated 15.6.2001  although the licence for Haryana Circle was  granted to the appellant on 8.10.2001, the  interconnect agreement which gave rise to the  issues in dispute was signed on 6.12.2001 and  the appellant’s representation was rejected by  the TRAI on 29.8.2002.  Appellant filed the  appeal on 27.9.2002 within the period of

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limitation, i.e., 30 days.  In our considered  view the Tribunal has erred in dismissing the  appellant’s appeal on the ground of bar of  limitation.   

The licence agreement was signed on  6.12.2001.  The appellant’s representation was  put on hold by the TRAI by its order dated  24.7.2002 awaiting the decision of the Tribunal  in appellant’s appeal No. 1 of 2002relating to  the Madhya Pradesh Telecom Circle.  Thereafter,  by letter dated 29.8.2002 TRAI rejected the  appellant’s representation upon dismissal of  Appeal No. 1 of 2002 by the Tribunal on  29.8.2002.  The appeal was filed on 27.9.2002.   In this case there was no delay in filing the  appeal.  The appeal has been filed within 30  days of the rejection of the appellant’s  representation finally by the TRAI on 29.8.2002.   The Tribunal has erred in taking the starting  point for limitation from the determination made  by the Tribunal on 15.6.2001 which was in  relation to Madhya Pradesh circle.  The order  dated 15.6.2001 and the order dated 29.8.2002  are two separate orders passed by the TRAI  relating to different circles and the starting  point for limitation for the same could not be  taken from the previous order passed by the TRAI  in relation to the Madhya Pradesh circle.

       For the reasons stated above, both the  appeals are accepted.  The orders passed by the  Tribunal in Appeal No. 1 of 2002 and Appeal No.  9 of 2002 dated 29.7.2002 and 19.12.2002 are set  aside, delay in filing the appeals is condoned  and the case is remitted  back to the Tribunal  for a fresh decision on merits of the dispute  and in accordance with law.   

Nothing stated herein-above be taken as an  expression of opinion on merits of dispute.  The  Tribunal shall be at liberty to decide the  dispute on merits and in accordance with law  without being influenced by any of the  observations made in this judgment touching upon  the merits of the dispute.  There will be no  order as to costs.