BHARTI AIRTEL LIMITED Vs BHARAT SANCHAR NIGAM LTD. & ANR

The parties hereto have entered into an interconnect agreement on or about 26.03.2004. Indisputably for laying down cables, the operators have to dig earth, during the process whereof cable laid by the other operators is likely to be damaged. There is no controversy between the parties hereto that any operator who causes such damages is liable to compensate the other. Inter alia, on the premise that the Petitioner has caused such damages to the cable laid by the Respondent herein, bills were raised. The Petitioner admits that it has caused damages to the cable laid by the Respondent at three places.

By reason of a notice dated 07.07.2012 the Respondent demanded payment of a sum of Rs. 51 lakhs from the Petitioner, said to be owing and due from it in terms of various bills raised, within a period of ten days, failing which it was threatened that the services provided to it in the J&K circle shall be withdrawn without any further notice.

Various factual controversies have been raised in the matter by the parties hereto. The learned counsels have taken us also through a large number of correspondences exchanged between the parties.

Mr. Maninder Singh, learned senior counsel, appearing for the Petitioner would contend :- 1. At different points of time different demands were raised namely from a sum of Rs. 34,50,000/- to a sum of Rs. 51 lakhs, which shows the exaggerated demand of the Respondent and this is not payable in law. 2. The Respondent failed and/or neglected to take into consideration the fact that digging of earth alongside the road is not only resorted by the Petitioner but also by various other operators as also the Border Road Organization; which also uses heavy earth moving machinery, as a result whereof the chances of damaging the cables would be much more than manual digging of earth.

3. Although a purported joint verification was carried out by the parties hereto on or about 09.09.2011. From a perusal of the report with regard thereto, it would be evident that the contention of the Petitioner that it was not responsible for causing damages to the cable laid by the Respondent apart from three places and in fact no such damage was caused, has not been considered at all by the Respondent on the plea that further digging at those points again might cause some more cuts in all the under ground cables laid on the side of the road.

Mr. Kohli, learned counsel appearing for the Respondent, on the other hand, urged:

a. The bills have been raised by the Northern Telecom Regime of BSNL from 2007 onwards which being the subject matter of this Petition, no order of injunction should be passed in favour of the Petitioner.

b. The Petitioner has not filed as many as 19 documents which were annexed by the Respondent with it’s letter dated 17.4.2012 and in that view of the matter the Petitioner is not entitled to any discretionary relief.

Attention of this Tribunal has furthermore been drawn to clause 7.6.4 of the Interconnect Agreement which reads as under : “In cases other than those referred in clause 7.6.3 UASL shall immediately obtain a provisional bill form BSNL before the pay by date of the original bill on the basis given in clause 7.6.1. the provisional bill shall be paid by the UASL before the pay by date indicated in the provisional bill. Thereafter, within 7 days of the issue of the provisional bill, the UASL shall approach the designated authority of BSNL along with all his relevant records based on which the UASL disputes the bill issued by BSNL. The UASL shall, in consultation with the designated authority of BSNL, settle the dispute within 15 days of the issue of the provisional bill referred in this clause. In this consultation, the records made by the measurement devices located at the BSNL interface point shall have precedence over the records of the UASL. If after consultation, it is found that the bill issued by BSNL is correct, the balance amount of the bill, which was kept under dispute after the issue of the provisional bill, will also have to be paid by the UASL within 7 days of the settlement of such dispute.”

In this petitioner, this Tribunal is primarily concerned with the right of the Respondents to issue the impugned notice of disconnection. It may not, thus, be necessary for us to dial with the fictional matrix involved.

The bills referred to in the said provisions relate to settlement of disputes in regard to wrong/ excess billing, which in turn would imply that the bills have to be raised within the four corners of the agreement.

No provision of the interconnect agreement has been brought to our notice to show that in terms thereof bills can be raised in respect of damages caused for cable cutting of one operator by the other. A practice, it is stated, has come into vogue that bills are raised for causing damages to the cable laid by the Respondent and circular letters have also been issued in this regard. No possible exception to the procedure adopted by the Respondent can be taken but the question which arises for consideration is as to whether in terms thereof, the power of disconnecting the POIs of the Petitioner can be invoked. Right to disconnect the POIs of an operator either may emanate from the contract. The same must be exercised, if any, bill has remained unpaid within the meaning of the provisions of the interconnect agreement and not outside the same.

Damages caused to one’s property by others is a tortuous act. If not admitted, such an action is required to be established before a competent court of law.

This petition, as indicated heretobefore, involves various factual disputes.

The core question which arises for consideration is as to whether in absence of any provision contained in the interconnect agreement of 2004, the Respondent could issue the impugned notice dated 07.07.2012 threatening withdrawal of the provisioning of services in J& K circle.

The parties hereto prima facie are governed by the interconnect agreement. Interconnect agreement does not provide for any right in favour of the Respondent to cause any disruption in the service on the ground of nonpayment of any charges by way of damages to its cables caused by the other operators.

We would assume that the Respondent has issued various circular letters in this regard. Such circulars, however, cannot be invoked in the cases involving civil or evil consequences unless agreed to by both the parties to the agreement.

It has been so held in Bharat Sanchar Nigam Ltd. & Anr vs BPL Mobile Cellular Ltd. & Ors, 2008 (13) SCC, page 597.

The principle of estoppel provides for a procedural matter. If, however, a question of jurisdiction is raised, in the event, it is found that an order passed by the Respondent and/or any action taken by it lacks jurisdiction, the same being nullity, principles of estoppel or res judicata cannot be invoked.

In the case of Chief Justice of Andhra Pradesh & Anr etc. Vs. L.V.A. Dikshitulu and Ors. A.I.R. 1979, SC Page 193 at 198, the Supreme Court of India held that:

“Moreover this pure question of law depending upon the interpretation of article 371-D. if the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppels as urged in this case.”

The Petitioner has made out a triable issue in the petition. In that view of the matter it has established a prima facie case.

In the event, the Respondent is permitted to exercise its right to disconnect the POIs of the Petitioner, not only the Petitioner but also its subscribers may suffer substantial injury.

The balance of convenience also lies in favour of the Petitioner inasmuchas in the event this petition is ultimately dismissed, the Respondent can be monetorily compensated by directing it to pay the demanded amount together with interest.

The Petitioner shall, however, deposit with the Respondent a sum of Rupees three lakhs, if not already done as it has admitted its liability to the said extent.

Such deposit should be made within one week from date.

The Respondent is, thus, restrained from giving effect to the impugned notice dated 07.07.2012, subject to the compliance of the aforementioned direction.

……………….. (S.B. Sinha) Chairperson

……………….. (P.K.Rastogi) Member MM