CELLULAR OPERATORS ASSOCIATION OF INDIA Vs TATA TELESERVICES LTD.

6/7/2018 TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL

TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL NEW DELHI th Dated 18 March, 2010 Petition No.74 of 2005 Cellular Operators Association of India & Ors. …Petitioners Vs Tata Teleservices Ltd. & Ors. …Respondents And Petition No.140 of 2005 Cellular Operators Association of India & Ors. …Petitioners Vs Reliance Infocomm Limited & Ors. …Respondents BEFORE: HON’BLE MR. JUSTICE S.B.SINHA, CHAIRPERSON HON’BLE MR. G. D. GAIHA, MEMBER For Petitioners – COAI : Mr. C. S. Vaidyanathan Mr. Manjul Bajpai, Advocate Mr.Ashish Yadav, Ms.Devika Bajpai, Advocate For Respondent - Tata : Mr. Ramji Srinivasan, Senior Advocate, Mr. Vinoba Bhoopathy, Advocate For Respondent – Reliance : Mr. Ramji Srinivasan, Senior Advocate, Ms. Manali Singhal, Advocate

Mr. Santosh Sachin, Advocate For Respondent – BSNL : Mr. Maninder Singh, Senior Advocate Mrs. Prathiba M. Singh, Advocate Mr. Yoginder Handoo, Advocate Ms.Nitya Thakur, Advocate Mr.Arjun Natarajan, Advocate

JUDGMENT

S.B. Sinha

A short but interesting question, which arises for consideration in these petitions, is as to whether the petitioners having joined several respondents and causes of action in one petition would be entitled to the reliefs claimed for herein.

The first petitioner is an association of the Cellular Operators. The other petitioners are Cellular Operators having obtained licenses from the Government of India in terms of the provisions of Section 4 of the Indian Telegraph Act, 1885 (The 1885 Act).

Inter-alia on the premise that the first respondent in each of these petitions have launched a service known as ‘Walkie’ and ‘Unlimited Cordless’ which can be operated not only within the premises of the subscribers but also outside the same and within the SDCA, the first petitioner made a complaint to the Telecom Regulatory Authority of India (TRAI).

TRAI as also the Department of Telecommunication (DoT) issued certain directions in this behalf.

The respondent No.2 also raised huge bills.

Aggrieved by and dissatisfied with the said demands, the first respondent filed petitions before this Tribunal.

It is not in controversy that in the said petitions this Tribunal inter alia held that having regard to the nature of services offered to its customers by the first respondents herein, the same answered the description of WLL(M) services and consequently the demand raised by the second respondent against them were liable to succeed.

Aggrieved by and dissatisfied therewith, the first respondent in each of those petitions preferred appeals before the Supreme Court of India in terms of Section 18 of Telecom Regulatory Authority of India Act, 1997 (the Act). The said appeals were dismissed.

The judgments of the Supreme Court of India are reported in Tata Teleservices Ltd. v. BSNL - 2008 (10) SCC 556 and Reliance Infocomm Ltd. v. BSNL - 2008 (10) SCC 535.

In the aforementioned judgments, the Supreme Court of India categorically held that the services offered by the first respondent(s) herein, were WLL(M) Services. The Court assigned reasons in addition to those of this Tribunal.

According to the Court, in view of various authorities brought to its notice as also the technology involved and furthermore having regard to the advertisements issued by the first respondent(s) and others in regard to the nature of services, they had the requisite knowledge that the services offered by them were WLL(M) Services.

Attention of the Supreme Court of India however was drawn to the fact that the second respondent herein as also MTNL had introduced similar services to its customers, known as ‘Tarang’ and ‘Garuda’ respectively.

On the aforementioned premise, the Court in Tata Teleservices (Supra) observed as under:- “52. Before concluding, one aspect needs to be mentioned. It is alleged by the appellants and also by Reliance Infocomm Ltd. in the conjoint appeal which we will separately deal with in the subsequent judgment that BSNL have also not disclosed their numbering levels for their fixed wireless service and for their WLL(M) services which they have been providing during the relevant period in the name of “Tarang”, which according to the appellants, would now constitute WLL(M) service. According to the appellants, BSNL has also been providing fixed wireless phone services which has limited mobility. This is a matter of quantification. That stage has not yet arrived. However, Mr Gopal Subramanium, learned Senior Counsel appearing on behalf of BSNL, has fairly stated that BSNL would abide by the parameters laid down in our judgment and whatever adjustments required to be made in that regard in the context of claims and counterclaims, the same shall be worked out in near future. Be that as it may, we express no opinion on the point of quantification which question did not arise even before TDSAT in this case. Suffice it to state that the services of the appellants vide the instrument Walky falls in the category of WLL(M) service and, accordingly, the appellants would be liable to pay ADC in that regard during the relevant period 14-11-2004 to 26-8- 2005.”

Similar observations were made in the case of Reliance Infocomm(Supra) in the following terms:

“59. As stated in our judgment pronounced earlier in Civil Appeal No. 5850 of 2005, etc. in Tata Teleservices Ltd. v. BSNL, we are not required to decide in this case quantification of the amount in question as the claim and counterclaim made by the appellant herein against BSNL and vice versa is not the subject-matter of this appeal. Those questions are left open to be decided in accordance with law at the appropriate stage by the competent authority under the 1997 Act. Suffice it to state that the impugned Circular dated 4-3-2005 issued by TRAI falls under Section 13 of the 1997 Act as clarification. The reasons given hereinabove are in addition to the reasons given by TDSAT in its impugned order dated 17-1-2006. We find no infirmity in the reasons given by TDSAT in its impugned order.”

In the meantime these petitions had been filed by the petitioners herein.

In the cases of ‘Tata Teleservices’ as well as ‘Reliance Infocomm’, the first petitioner filed an application for intervention inter alia contending that they were vitally interested in the subject matter of the decision to be rendered by this Tribunal in the aforementioned cases. However, the first respondent(s) resisted the said application. Be that as it may, the Tribunal, opined that the first petitioner may be heard in the matters.

However having regard to the fact that the petitions filed by the first respondent were to be decided separately and the matters were taken to the Supreme Court of India at their instance, these applications were directed to be listed after the decision rendered by the Supreme Court of India.

In the aforementioned fact situation, these petitions have come up for hearing before us.

The Petitioners in these petitions have inter-alia prayed for the following reliefs in the case of ‘Tata’:- “(a) hold that the WALKY Services offered by Respondent No.1 is a WLL(M) Service;

(b) Direct the Respondent No.1 to refund to the Cellular Operators all the ADC amounts it has collected from the Cellular Operators on account of its WALKY services, together with interest thereon computed from the date of payment by the Cellular Operators until refunded by the Respondent No.1 (c) Direct the Respondent No.1 to refrain from retaining ADC on calls originating from its WALKY Service;

(d) Restrain the Respondent No.2 i.e. BSNL from raising any demand of ADC on the Petitioners for the Intra circle calls from Cellular to WALKY.

(e) Direct the Respondent No.2 to withdraw/ amend all its invoices insofar as they raise a demand of ADC on the Petitioner for the intra circle calls from Cellular to WALKY and refund all amount so collected from the Petitioners with interest thereon computed from the date of payment by the Cellular Operators until refunded by the Respondent No.2 (f) Direct the Respondent No.3 to impose penalty on Respondent No.1 as also revoke/terminate its License;

(g) Direct the Respondent No.1 to use Numbering Level 56 for its “Walky Service.”

Similar reliefs were prayed for by them in the case of Reliance Infocom also.

In view of the fact that the principal reliefs claimed for by the Petitioners herein stand determined by reason of the decisions of the Supreme Court of India in the cases of the first respondent in each of these petitions, it would be wholly unnecessary to consider the disputes between the parties with regard to the respective claims once over again in the matter of payment of Access Deficit Charges by the First Respondent in each of these petitions to the Second Respondent as also members of the First Petitioner-Association.

We may, however, at the outset notice that Mr.Ramji Srinivasan, the learned Senior Counsel appearing on behalf of the first respondent contended that these petitions suffer from misjoinder of causes of action as also the parties. According to the learned counsel, the Petitioners herein having combined several causes of action against the respondents; this petition should be dismissed. It was furthermore contended that in the event these petitions are allowed, the Petitioners No. 2 to 4 would be entitled to monetary reliefs which may be passed by this Tribunal and in that view of the matter it was obligatory on their part to pay court’s fee in terms of the procedure laid down by this Tribunal.

Mr.Vaidyanathan, the learned Senior Counsel appearing on behalf of the Petitioners, on the other hand, would contend:-

I. These petitions are maintainable in view of the provisions contained in Order I Rule 3 and Order II Rule 3 of the Code of Civil Procedure, 1908(The Code).

II. The petitions were filed at a point of time, when the principal question namely; as to whether the first respondents in each of these petitions were right in their contention that the services offered by them were or were not in the nature of WLL(M) services had been pending and in view of the fact that such a declaration has been granted by the Supreme Court of India in the appeals preferred by them, a declaratory decree may be passed at this stage whereupon the parties, in terms of the observations made by the Supreme Court of India in paragraph 52 in Tata Teleservices (Supra) and paragraph 59 in Reliance Communication (Supra), the respondents may be directed to render their respective accounts whereafter, in the event, the Petitioners No. 2 to 4 are held to be entitled to any amount from the first respondent and/or the second respondent herein, they would pay the requisite court fee in respect thereof.

Mr. Maninder Singh, learned Senior Counsel, appearing on behalf of the BSNL would, contend:

1. BSNL is ready and willing to pay the Access Deficit Charges on the basis of the number of calls recorded at the exchanges of the cellular operators on the basis of the CDRs maintained by them. 2. In the event the petitioners and/or the first respondent send bills stating that they are entitled to certain amount from BSNL towards Access Deficit Charges which have been recorded in their CDRs, the requisite payments therefor shall be made. 3. However, the petitioners must disclose to the second respondent the number of calls and other details which originated from their POIs and terminated in the POIs of the other cellular operators, in respect whereof in terms of the Interconnected Usage Charge framed by TRAI, BSNL alone shall be entitled to receive ADC in terms of the IUC Regulations framed by TRAI. It is true that in these petitions apart from the Petitioner No. 1, other private operators have joined as petitioners. Their principal claim although is directed against the first respondent in regard to the nature of services offered by them to their customers, according to them the second respondent herein namely BSNL is also liable to pay ADC charges. The short question which, therefore, arises for consideration of this Tribunal at this stage is as to whether the Petitioners are entitled to any relief.

Before, however, embarking on the rival contentions of the parties hereto, we may notice the relevant provisions of the Code of Civil Procedure, 1908 (CPC).

At the outset, we must also place on record that this Tribunal is not bound by the procedures laid down in the CPC. Section 16 of the Act clearly contemplates that this Tribunal is empowered to lay down its own procedure, but while adjudicating on the petitions filed by the disputants, the Tribunal is required to comply with the principles of natural justice. However, in a case of this nature, we are of the opinion, that although the provisions of the CPC are stricto sensu not applicable, the principles analogous thereto are applicable.

Order I Rule 1 of the CPC permits a plaintiff to file a suit along with other plaintiffs in the event, the conditions precedents therefor are fulfilled.

It reads as under:- “1. Who may be joined as Plaintifs. -

All persons may be joined in one suit as Plaintiffs where:

(a) Any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and (b) If such persons brought separate suits, any common question of law or fact would arise.”

It is true that only because several plaintiffs can join in a suit against a defendant, the same by itself would not mean that the court is bound to try all such disputes in a suit. The provisions of the CPC contemplate that despite the same the Court may direct the plaintiffs to file separate suits as provided for in Order I Rule 3 of Civil Procedure.

Order I Rule 4 of the Code of Civil Procedure provides for joinder of the all defendants. It reads as under:- “4. Court may give judgment for or against one or more of joint parties Judgment may be given without any amendment:

(a) For such one or more of the Plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to;

(b) Against such one or more of the Defendants as may be found to be liable, according to their respective liabilities.

Order 2 provides for causes of action. We are herein concerned with the provisions contained in Order II Rule 3 of the CPC.

It reads as under:

“3. Joinder of causes of action. - (1) Save as otherwise provided, a Plaintiff may unite the same suit several causes of action against the same Defendant, or the same Defendants jointly; and any Plaintiffs having causes of action in which they are jointly interested against the same Defendant or the same Defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.”

A bare perusal of the aforementioned provision clearly goes to show that it is permissible for the petitioners to join multiple causes of action against the respondent. The said provision has been inserted with a view to avoid multiplicity of proceedings. It serves a wider public purpose.

In Prem Lala Nahata v. Chandi Prasad Sikaria – 2007(2) SCC 551, the Supreme Court of India held as under:

“9. But it is a different question whether a suit which may be bad for misjoinder of parties or misjoinder of causes of action, is a suit barred by law in terms of Order 7 Rule 11(d) of the Code. The Code of Civil Procedure as its preamble indicates, is an Act to consolidate and amend the laws relating to the procedure of the courts of civil judicature. No doubt it also deals with certain substantive rights. But as the preamble vouchsafes, the object essentially is to consolidate the law relating to civil procedure. The very object of consolidation is to collect the law bearing upon the particular subject and in bringing it up to date. A consolidating Act is to be construed by examining the language of such a statute and by giving it its natural meaning uninfluenced by considerations derived from the previous state of the law.

19. It is recognised that the court has wide discretionary power to control the conduct of proceedings where there has been a joinder of causes of action or of parties which may embarrass or delay the trial or is otherwise inconvenient. In that situation, the court may exercise the power either by ordering separate trials of the claims in respect of two or more causes of action included in the same action or by confining the action to some of the causes of action and excluding the others or by ordering the plaintiff or plaintiffs to elect which cause of action is to be proceeded with or which plaintiff should proceed and which should not or by making such other order as may be expedient. (See Halsbury’s Laws of England, Vol. 37, para 73.) Surely, when the matter rests with the discretion of the court, it could not be postulated that a suit suffering from such a defect is something that is barred by law. After all, it is the convenience of the trial that is relevant and as the Privy Council has observed in the decision noted earlier, the defendant may not even have an absolute right to contend that such a suit should not be proceeded with.”

The said provisions inter alia were brought in the CPC indisputably to avoid multiplicity of proceedings where disputes between several plaintiffs and defendants can be conveniently adjudicated in a single suit. This Tribunal, therefore, in a situation of this nature would be entitled to entertain a common petition which can be conveniently taken up for hearing and disposed of.

In a case of this nature where the Cellular Operators intended to know as to whether their contention before TRAI that the UASL licensees had been using limited mobile services by way of basic fixed phones and thus avoiding payment of ADC to them, it is difficult to hold that this petition is not maintainable.

We have noticed heretobefore that pursuant to or furtherance of the said representation made by the First petitioner not only TRAI but also the Department of Telecommunication took several steps. They had also issued several circular letters which have direct bearings on the subject matter on the dispute between the parties.

It is also beyond any doubt or dispute that the Second respondent herein had issued demand notes against the first respondent in each of these petitions demanding charges for all calls inter alia on the premise that they had transferred their calls in a wrong trunk group. The said bills were raised on the basis that the First respondent in each of these petitions had used the exchanges meant for fixed services, although they in fact had been rendering cellular services to their customers.

Having regard to the fact that the First respondent had questioned the said demand by filing applications before this Tribunal in terms of Section 14 of the Act, these petitions were filed. At that point of time, the position of law was not clear. The petitioners in their own interest intended to know the outcome of this litigation. It was not possible for them to file a petition with a prayer that the first respondent and/or for that matter the second respondent should be asked to pay requisite ADC to them.

If the contentions of the parties are considered from that angle, we do not see any reason as to why the provisions of Order 1 Rule 3 and Order 2 Rule 3 of the Code of Civil Procedure should not be pressed into services in support of the case of the petitioners.

In any event, BSNL is not disputing its liability in terms of judgment of the Supreme Court of India and in that view of the matter too it is not a case where this Tribunal is required to undertake any exercise of recording evidence against each of the respondent separately. Only the respondent No.1 in each of the petitions has disputed their respective liabilities. Even that has no force in the light of the aforenoticed decision of the Supreme Court of India. It is not a case where disputed questions of fact are required to be gone into. It is also not a case where for determining the claim of the petitioners No.2 to 4, oral evidence is required to be adduced. At any rate, no such prayer has been made. It is, thus, not inconvenient to try this petition jointly. It is also not a case where the parties hereto have entered into separate agreements. The liability of the parties arise on the basis of interpretation of IUC regulations vis-à-vis the nature of services rendered by them.

The only question was that of applicability of correct nature of service, the respondent No.1 was rendering in each case.

In these cases the petitioners are jointly interested in a declaration. It is not a case where each of the plaintiffs is making a separate claim on independent basis. Whether the claim was made against Respondent No.1 or Respondent No.2, the questions of law and fact are common. They could raise such common questions of law and fact, which were required to be determined.

Determination required in these petitions is one of the principles. These petitions, therefore, are not bad for misjoinder of parties or causes of action. Demand for accounting is to be addressed only after the legal principle is declared.

In this case the Supreme Court of India has already declared the law. The principal grievances raised by the petitioners, therefore, have already been addressed. In view of decision of the Supreme Court of India there is absolutely no doubt or dispute that the first respondent in each of these petitions would be bound to pay the requisite ADC charges to the other cellular operators as also the respondent No.2.

The directions issued by the Apex Court in paragraph 52 in the case of Tata(supra) and in paragraph 59 in the case of Reliance Infocomm (supra), therefore, are fully applicable in these matters.

In that view of the matter a declaratory decree sought for by the petitioner must be granted. We, therefore, pass a decree for declaration in terms of the decision of Supreme Court of India. What survives is a matter of accounting. ADC will have to be paid by the parties hereto in terms of the provisions of the IUC Regulations framed by TRAI. The relevant provisions of the said Regulations are as under: TABLE III Access Deficit Charge in Rs.Per minute applicable for various type of Calls Access Deficit Charges Local calls Intra-Circle calls Inter-Circle calls ILD Calls In Rs. Per minute 0-50 kms >50 Kms All Distances Outgoing Incoming Fixed - Fixed 0.00 0.00 0.30 0.30 Fixed – WLL(M) 0.30 0.30 0.30 0.30 2.50 3.25 Fixed – Cellular 0.30 0.30 0.30 0.30 WLL(M) – Fixed 0.30 0.30 0.30 0.30 WLL(M) – WLL(M) 0.00 0.00 0.00 0.30 2.50 3.25 WLL(M) – Cellular 0.00 0.00 0.00 0.30 Cellular – Fixed 0.30 0.30 0.30 0.30

Cellular – WLL(M) 0.00 0.00 0.00 0.30 2.50 3.25 Cellular – Cellular 0.00 0.00 0.00 0.30

There cannot be any doubt or dispute that respective mutual obligations of the parties are required to be discharged in terms thereof. For the said purpose the parties hereto are directed to furnish the CDs and other details as may be necessary for finalizing their respective accounts.

There cannot furthermore be any doubt that in the event, the petitioners No. 2 to 4 are found to be entitled to decrees for monetary claims from the first respondent and/or the second respondent, they will be bound to pay court fees thereon.

The Supreme Court of India in the cases of Tata Teleservices (Supra) and Reliance Infocom (Supra), it must be noticed, had not only declared the nature of the services rendered by them first respondent(s) to be mobile services, but also directed that accounting between the parties are required to be complied with, it must be directed accordingly.

For the aforementioned purposes, the parties are required to exchange the details of their respective call records.

The contention raised by Mr. Maninder Singh the learned senior counsel appearing on behalf of the Second Respondent that even assuming that the parties are required to reconciliate their accounts upon exchange of details, the same would not mean that BSNL will have to supply its CDRs to the Petitioners or for that matter to the respondent No.1 may be considered a little later. But there can not be any doubt that for the purpose of payment of ADC to the respondent No. 2 herein not only the first respondent(s) are required to supply the relevant datas to the petitioners herein, the members of the petitioner No. 1 are also required to exchange the said datas with the BSNL, in so far as its claim is concerned.

In view of the fair stand taken by the second respondent herein we are of the opinion that it is not necessary for BSNL to supply CDR unless and until the same is found to be necessary for reconciliation of the accounts by and between the petitioners and the second respondent. For that purpose, we are of the opinion that interest of the justice would be sub-served if liberty is granted to the members of the first petitioner association and/or the petitioners No. 2 to 4 herein to approach this Tribunal in the event, any occasion arises therfor.

We have noticed heretobefore that the BSNL is entitled to ADC not only from the first respondent but also from the calls originated from the POI of the Petitioners and delivered to the first respondent and also in respect of the calls which passed through the exchanges of the petitioners and the first respondent. Indisputably ADC is similarly payable to the second respondent herein in terms of the IUC Regulations framed by TRAI.

Let us now consider the question as to whether with a view to give effect to the order passed by the Supreme Court of India, it is necessary for the BSNL to supply its CDRs to the parties hereto. We have noticed heretobefore the submissions made by Mr.Maninder Singh that BSNL is ready and agreeable to pay the demand of the petitioners on the basis of their own CDRs. The details of such CDRs and/or calls made by them either to the BSNL or to the first respondent may, therefore, be disclosed. We have no doubt in our mind that keeping in view the statement at the Bar BSNL shall make all requisite payments to the Petitioners herein at an early date that the said undertaking shall be honoured. Even for the said purpose, the details which are with the first respondent may also be taken use of.

It is true that Bharati Airtel has made a demand on the basis of CDR. But the said demand has to be considered keeping in view the note appended thereto. The said demand furthermore was provisional in nature.

It is a case where accounts maintained by the parties are required to be gone into. Even otherwise in these matters other petitioners have not raised any demand against the respondent No.1 in each case.

We are furthermore of the opinion that once the parties exchange their respective details and re-conciliation process is undergone by them, the amount due to the Petitioners No. 2 to 4 would be crystalised. Once the amount payable and due to the members of the Petitioners No. 1 Association crystalises, the Petitioners shall pay the requisite court fee on the said amount. The claim and counter claim by and between the Petitioners No. 2 to 4 on the one hand and the first respondent on the other hand may be arrived at on the basis of the CDRs respectively maintained by them save and except BSNL at this stage. Any adjustment which is required to be made for the said purpose by and between the Petitioner and the first respondent may also be gone into. Similar exercise may be carried out in respect of the claims inter se by the respondent.

We, therefore, issue the following directions:

(1) Each of the petitioners, other than the petitioner No.1 shall raise their provisional bills on the respondent No.1 in each case on the basis of their CDRs and records within two weeks from date.

(2) The respondent No.1 of each these petitions shall also supply copies of the CDRs within the said period.

(3) Copies of the said CDRs shall also be furnished to the respondent No.2.

(4) Objection to the said bills and/or call details, if any, may be made within two weeks from the date of receipt of the bills/CDRs/call details.

(5) Parties shall, if they so desire, meet within two weeks thereafter for reconciliation of accounts.

(6) All parties including BSNL should deposit court fees within two weeks from the respective date(s) after reconciliations of their accounts are finalised.

(7) Objections to the accounts and/or call details and/or CDRs, if not reconciled, may be filed before this Tribunal within two weeks from the date of failure on the part of the concerned parties in that regard.

(8) BSNL shall pay the requisite amount of ADC to the cellular operators, within two weeks from the date of receipt of the CDRs/Bills.

It is made clear that all cellular operators will have to pay court fees on the said amounts also.

(9) However, in the event BSNL disputes the correctness or otherwise of the call details contained in the CDRs maintained by other cellular operators relying on or on the basis of its own CDRs, it inter alia at the time of reconciliation of accounts would provide the same to the other party.

Put up these petitions after three months for further direction, if any. ………………J (S.B. Sinha) Chairperson

..…………….. (G.D. Gaiha) Member