Telenet Ltd. Vs. Union of India & Ors  Insc 208
(31 March 2005)
Civil Appeal No. 1816 of 2003 BHAN, J.
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.
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.
stating the facts as found by the Tribunal, as there is no dispute on them.
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.
appellant claims that as per the terms and 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.
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.
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.
hearing both the parties, TRAI decided the case as under:
the light of the foregoing the Authority has come to the following conclusions:-
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
Clause 184.108.40.206. of the licence agreement gives the licensee option of carrying
a STD call entirely on his own network within the circle/service area.
This clause (220.127.116.11.) also gives the licensee the option of far end hand over
of calls to BSNL for termination only.
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.
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.
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.
14A (2) and (3) of the Act which is relevant for this case are reproduced
Application for settlement of disputes and appeals to Appellate Tribunal.-
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.
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.
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:
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.
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 'ABTO' for short), for seeking review of the order in collective
interest. ABTO circulated the said order among its members vide its circular
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
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.
ABTO filed a review application before the TRAI for review of the order dated
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
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
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:
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 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.
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 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
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.
Court in Sha Mulchand & Co. Ltd. vs. Jawahar Mills Ltd., Salem, AIR 1953 SC 98 held:
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 '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.
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.
has misconstrued the fact that the ABTO kept itself away from the present
appeal 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.
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.
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.
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 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
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.
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.
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.
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.
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