BHARTI TELENET LTD. Vs UNION OF INDIA

Appeal against the order of TRAI relating to the Interconnection of network and handing over of the traffic originating in the network of the appellant and terminating in the network of BSNL (Respondent No.2) either in the service area of the appellant or outside the service area. Condonation of delay application under Section 14(A)(iii) of the TRAI Act - Delay of 172 days - Condonation not allowed in the facts of the case. Held condonation of delay is a matter of discretion of the Court; there must be sufficient cause for condoning the delay; something must have happened to the Applicant which prevented from preferring Appeal on time; mere laxity or lack of vigilance cannot be a ground for condonation; equity aids vigilant and not indolent.

Condonation of delay – a matter of discretion of the Court. Mere laxity or lack of vigilance on the part of the Petitioner will not be a ground for condonation of delay. Equity aids the vigilant and not the indolent. The application for condonation of delay is speculative and has not been made bonafide.

ORDER

An application for condonation of delay of 172 days and an appeal under Section 14(b) read with Section 14A(2) of the Telecom Regulatory Authority of India Act, 1997 have been filed by M/s Bharti Telenet Ltd. (BTNL). The appeal should have been filed on or before 14.7.2001. It has actually been filed on 2.1.2002. The appellant is aggrieved by an order passed by the Telecom Regulatory Authority of India (TRAI) on 15th June, 2001 relating to the interconnection of network and handing over of the traffic originating in the network of the Appellant and terminating in the network of the Respondent No. 2 either in Appellant’s Service Area of Madhya Pradesh or outside. The Appellant is licensed 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 Respondent No. 2, viz. BSNL so as to provide national/Inter-circle Links which is currently available only with 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 Respondent No. 2, viz. BSNL. The 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 Respondent No. 2, viz. BSNL at the Point of Interconnection (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 M/s Bharti Telenet Limited (BTNL) and BSNL would have to be at equivalent levels. Thus within the Short Distance Charging Area (SDCA), the interconnections would have to be at the level of local and tandem exchanges. In so far as Long Distance Charging Area (LDCA) are concerned, the points of interconnection would have to be located between the Trunk automatic Exchanges (TAX) of the LDCA-s of both BSNL and BTNL. For this, BSNL contends that BTNL would have to build up a parallel network within their LDCA on the same pattern as the Network Hierarchy of BSNL starting with the SDCA.

In case BTNL does not have its own TAX in the LDCA it would have to bring traffic from its own SDCA Tandem/ Local Exchange to the nearest TAX of BSNL for onward transmission/carriage to any other TAX-s. Since BSNL has a TAX in each LDCA, this practically means that BTNL would have to handover all long-distance traffic in the same LDCA in which it has originated. The dispute arose in October, 2000 when the Chief General Manager, Madhya Pradesh Circle, BSNL informed the Appellant in a meeting about the manner in which BSNL would provide Points of Interconnection in handling long-distance traffic originating from the subscribers of BTNL. Since mutual discussions held subsequently did not prove fruitful, the Appellant approached Telecom Regulatory Authority of India (TRAI) for appropriate orders and directions on 6th February, 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 agr4eement signed by both the contending parties.

(ii) Clause 1.7.6.5 of the license 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 Department of Telecommunications (now BSNL) in the same manner as is permitted to the Department of Telecommunications (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.” It may be noted that this order also affected the BTNL in its operations in three other Circles Haryana, Karnataka and Tamil Nadu.

The case has been heard in extenso and several adjournments were granted from time to time to enable the parties to place their case in full. Both the parties cited several decisions. We are not dealing with the case law separately. The law in this regard is well settled. Condonation of delay is a matter of discretion of the Court. There must be sufficient cause for condoning the delay. Something must have happened within the period of limitation, which prevented the applicant from preferring an appeal in time. Mere laxity or lack of vigilance on the part of the petitioner will not be a ground for condonation of delay. Equity aids the vigilant and not the indolent. If the petitioner was pursuing the remedy in some other forum bonafide and under a genuine misconception of law, the time taken in this process may be excluded for calculating the period of limitation. But in order to get a favourable order the petitioner must be able to show the Court that it had acted expeditiously and bonafide. Bearing these principles in mind we shall now examine the application for condonation of delay.

Section 14A(2) & (3) of Telecom Regulatory Authority of India Act, 1997 are relevant for this case: “14A.(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) shall 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”. We shall now examine whether there was sufficient cause for not filing the appeal within the prescribed period of thirty days. The order of TRAI was passed on 15th June, 2001 and communicated to the petitioner on that very day under a covering letter dated 15th June, 2001 sent by Harsha V. Singh, Secretary-cum-Principal Advisor.

The petitioner immediately decided to appeal. This is borne out by the following noting in the body of the order received from TRAI. “Mr. Rajinder Sharma/Anuradha

We need to go to TDSAT on this immediately. Signature illegible 15/6”.

According to BTNL the order dated 15.6.2001 was communicated on the very same day to the Association of Basic Telecom Operators (ABTO) and a copy of the order was also forwarded to ABTO on 17.6.2001. the case of BTNL is that ABTO was interested in the order because it was stated in the order that “the order will have general applicability in similar interconnect scenario”. This however does not explain why the petitioner who had approached TRAI individually and who directly affected by the Order dated 15.6.2001 did not appeal against that order pursuant to its original decision but left it to the ABTO to prefer an appeal on behalf of all its Members. On 22.6.2001 ABTO convened a meeting which was attended by T.R. Dua and Satish Kejriwal representing BTNL and 4 other members representing HFCL, Infotel, Huge Telecom, Reliance Telecom and Tata Telephone Services. In the minutes of that meeting it was recorded “members agreed that it was necessary that ABTO file a petition in TDSAT against TRAI’s determination these points must be contested in the TDSAT. Secretariat to initiate necessary action with assistance from Bharti Telenet Limited who was requested to sent copies of all correspondence on this to the Legal Counsel and the Secretariat for necessary action.

On 14th July, 2001 appeal against the order of TRAI dated 15th June, 2001 became time barred. On July 17, 2001 T.R. Dua on behalf of BTNL wrote to the Secretary General of ABTO in which it was stated, “As deliberated and agreed, the Executive Counsel had agreed to file an appeal against the determination dated 15.6.2001 of TRAI on hand over of STD Traffic. The Secretariat was required to initiate necessary action collectively. Needless to mention an urgent collective action WILL HELP to effectively handle the situation arising out of the TRAI determination”. The Secretary General in his reply dated 26th July, 2001 informed T.R. Dua that some of the members felt that the determination of TRAI was passed without giving any hearing to the other members of the Executive Council. Therefore an application may be filed by ABTO to TRAI to reconsider its decision. BTNL agreed to the suggestion and wrote to the Secretary General. “It is, therefore, imperative that a collective action under aegis of ABTO be initiated at the earliest. We would also like to inform you that we will extend our full support to ABTO in case a final decision is taken to file a review instead of an appeal”.

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 petition was filed on 17.8.2001 well after expiry of the period of limitation for preferring an appeal i.e. 14.7.2001. Moreover, this letter goes to show that the petitioner took a conscious decision to abandon its right of appeal individually, and did not appeal even when it came to know that the ABTO will not appeal. BTNL also did not file any review petition on its own but decided to rely on the petition filed by ABTO. The position of other members of ABTO was different from the petitioner’s because TRAI gave its decision after hearing BTNL only and not other members of ABTO who were not parties to the application made by BTNL. Those members might have decided to go to TRAI to reconsider its decision on that ground. But BTNL who was the applicant before TRAI and was directly affected decided to abandon its right of appeal and left it to ABTO to make a review petition on behalf of all the members instead of preferring an appeal to this Tribunal.

The petitioner who was fully aware of its right of appeal consciously and deliberately abandoned that right. There is no explanation why the petitioner did not individually prefer an appeal even at that stage. This is not a case of the petitioner’s pursuing a wrong remedy out of ignorance or inadvertence. The appellant cannot claim that it was not aware of the appropriate legal remedy, the forum and the time limit for appeal. Even if one accepts its plea that the issue was one of general interest to all the basic service telecom operators which needed intervention at the level of their Association, viz., ABTO, nothing prevented it from filing an appeal and joining ABTO as a party or requesting ABTO to intervene in the appeal. For reasons not disclosed, the appellant was unwilling to prefer an appeal on its own. Even when ABTO decided not to appeal, the appellant with full knowledge of that fact did not appeal. 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.

While we have not gone into the merits of the issues relating to the point of interconnection raised by the appellant in its appeal, it is clear from the documents on record that the other Basic Service Operators have accepted the determination of TRAI. There is no inclination on the part of either ABTO or its other members to reopen this issue. As of now, therefore, there is only the individual grievance of the appellant that too confined to Madhya Pradesh Circle. It has accepted and acted upon the determination made by TRAI in Haryana, Karnataka and Tamil Nadu Circles. Mr. Rawal, A.S.G. is right in his submission that the appellant cannot blow hot and cold at the same time. The principles laid down by TRAI have been incorporated in the interconnect agreements which have been accepted and signed by all the members of the ABTO. The determination is partly in favour of BSNL and partly against it. BSNL, ABTO and its members have accepted the decision of TRAI and have not tried to challenge it at any other forum. The petitioner after accepting it and signing three interconnect agreements for three different circles on the basis of the determination made by TRAI is now estopped from challenging the determination made by TRAI.

The appellant had also full knowledge of its right to appeal. It had decided to appeal on 16.6.2001 itself. Later it tried to persuade ABTO to appeal on behalf of all the members. It decided not to appeal individually. The ABTO initially agreed but later on gave up that idea and decided to apply for review. The appellant agreed to and/or accepted that decision. It is a clear case of conscious relinquishment of a known right. Nothing prevented the appellant to prefer an appeal on its own even at this stage. After the review petition was dismissed by ABTO on 5.12.2001, the appellant promptly signed an interconnect agreement with BSNL on 6.12.2001 in respect of Haryana circle. This signified that along with the other members of ABTO it had accepted and acted upon the determination made by TRAI. After about a month as an after though it preferred this appeal before this Tribunal in respect of Madhya Pradesh Circle. Thereafter it signed two more interconnect agreements with BSNL in respect of two other circles incorporating the same principles laid down by TRAI which it is now seeking to challenge before us.

In other words, it accepted and acted upon the determination given by TRAI on 15.6.2001 in respect of 3 other Circles but has chosen to challenge that determination in case of the Madhya Pradesh Circle. No explanation has been offered for this contradictory stand taken by BTNL. We are of the view that this application for condonation of delay is speculative and has not been made bonafide. On the facts stated hereinabove, there is no ground for condonation of delay of 172 days in preferring this appeal. The petitioner took a conscious decision not to appeal on its own. It fully agreed when ABTO decided to abandon its earlier decision to appeal and go for a review. The petitioner offered its full co-operation in filing the review petition. After the review petition was dismissed, it did not show any urgency to challenge the determination of the TRAI individually but promptly signed an agreement with BSNL on 6.12.2001 in which the principles laid down by TRAI were incorporated. On 2.1.2002 it preferred this appeal and applied for condonation of delay. Shortly thereafter, it signed two other interconnect agreements with BSNL on 15.2.2002.

On the basis of facts and circumstances of this case, we are disinclined to exercise our discretion to condone the delay in preferring the appeal. The Miscellaneous application, in our view, is without any merit. Therefore, the Miscellaneous Application No. 1 of 2002 for condonation of delay is dismissed. The appeal No. 1 of 2002 is consequently also dismissed. Sd/- (Suhas C. Sen) Chairman Sd/- (R.U.S. Prasad) Member Sd/- (P.R. Dasgupta) Member