M/S BHARTI TELEVENTURES LTD. Vs BHARAT SANCHAR NIGAM LTD. & ANR

ORDER The Petitioners, M/s Bharti Televentures Ltd is providing fixed line service under its unified access service license granted to it on 8.10.2001 for provision of service in Haryana Telecom Circle. The Respondent, Bharat Sanchar Nigam Limited (BSNL) is a Government owned Company also in service for provision of telecom services. For provision of service by the petitioner, the petitioner has to take interconnectivity into the network of the respondent, for which, it seeks Points of Interconnect (PsOI).

2. In the present Petition, the petitioner had sought PsOI at the respondent’s Level-II Trunk Automatic Exchanges (TAXs) at Gurgaon and Faridabad. The petitioner and the respondent entered into an interconnect agreement dated 6.12.2001 for providing such interconnection. The rates of access charges were also agreed to mutually. The petitioner claims that it was paying to the respondent in accordance with the rates laid down in these agreements. This dispute basically pertains to TAX at Gurgaon, PsOI for which were provided on 25.12.2001 and got disconnected by the petitioner on 30.3.2004 and all charges thereof were settled and paid by the petitioner. However, on 4.10.2005, a new demand was raised by the respondent demanding additional access charges and carriage charges which have been challenged by the petitioner in this Petition who has prayed as under :- “(a) pass an order declaring the letters bearing no. 8-3/2001-Regin/ Bharti dated 25.12.2001, 10.8.2005 and letter bearing no. BSNL/CMTD/ GUR/BHARTI TELENET/3 dated 27.10.2005 and letter bearing no. CGM/HR/NC/902/KW dated 8.11.2005 along with Bill No. BSNL/GMTD/ GLU/TR-I/IUC BILLS-CLAIMs/2 dated 4.10.2005 as illegal and unlawful; (b) set aside the demand letters of Respondent referred in prayer (a); (c) restrain the Respondent, their servants, agents or assigns from in any manner disconnecting or disrupting the Points of Interconnect of the Petitioner based on letters in prayer (a). (d) declare that the Petitioner is entitled to benefit of the Order dated 27.4.05 in respect of all the Circles including Haryana and also the consequential relief of refund along with interest. (e) pass an ad-interim ex-parte order in terms of the prayers made above; and (f) pass such other and further orders as may be deemed fit and proper in the facts and circumstances of the case.”

3. When the case came up for directions on 30.12.2005 we were informed that the respondent BSNL had given notice to the petitioner for disconnection of PsOI at Faridabad if the demands raised by the respondent were not paid by the petitioner. We directed the petitioner to deposit 75% of the demand with the respondent within one week and we ordered that there would be no disconnection subject to the deposit of this amount. The matter was finally heard on 14.8.2007.

4. The dispute basically pertains to charges for interconnection to TAX at Gurgaon. The dispute is two-fold; (a) demand of access charges at the TAX for STD and ISD calls and (b) for the carriage charges for carriage of calls from Gurgaon to Faridabad TAX.

5. The petitioner contends that it had sought PsOI at Gurgaon and Faridabad TAXs for which interconnect agreements were entered into between the parties. As per this interconnect agreement, the petitioner was to pay Re. 0.50 per MCU for the STD calls and Re. 0.70 per MCU for ISD calls. It is the stand of the petitioner that it had been paying to the respondent accordingly. The PsOI were finally got disconnected on 30.3.2004 and the petitioner contends that it had cleared all the dues in accordance with the interconnect agreements. It was to the surprise of petitioner that after a lapse of almost four years from the date of interconnection and 1 year 7 months after the PsOI had been surrendered, the respondent on 4.10.2005 raised a demand for additional amounts at the rate of Re. 0.60 per MCU for STD calls and Re. 0.78 for ISD calls.

6. At the outset, the petitioner questioned the late demand raised by the respondent under the Limitations Act. He stated that the initial interconnection was provided in December, 2001 whereas the demand now is raised after more than four years from that date and therefore suffers from limitation. The learned counsel for the respondent Mr. Maninder Singh however, stated that on Government Account, the payment is ‘on account’ and therefore this case does not fall under the Limitations Act. He also stated that the petitioner had given an undertaking to the respondent whereby it had accepted the special terms that it will pay to the respondent on the rates decided by the respondent. He said that now it cannot back out from this undertaking and the respondent was well within its right to levy the rates as decided by it. Petitioner’s letter dated 25.12.2001 quoted by the respondent in this respect is reproduced as under :- “As you are aware, we have a licence to operate basic telecom service in the state of th Haryana and we are launching basic telecom services in Gurgaon and Faridabad on 25 December, 2001. The Hon’ble Minister of Communication and Chief Minister of Haryana have consented th to make the inaugural call on 26 December, 2001. In this connection, we have already requested BSNL to provide us STD connectivity at Gurgaon on the charges being worked out by BSNL. Therefore, we also request you to provide the connectivity at Gurgaon to route our STD calls from Gurgaon TAX based on the charges which would be worked out by BSNL and we will make the payment accordingly. Payment for these ‘B’ TAX E’1 will th be made on 26 December, 2001 by 10.30 am.”

7. Since the interconnection carried on till March, 2004 for Gurgaon TAX and even later for Faridabad Tax in Haryana Circle, we were not convinced with the argument of the petitioner that this case falls under the Limitations Act and we proceeded to hear the matter on its merits.

8. The learned counsel for the petitioner brought to our notice the agreement signed between the two parties on 6.12.2001 which lays down the rates of STD and ISD calls to be charged from it, the relative clauses of which are reproduced as under :- “3(iii). For STD calls originating in one party’s network and accepted by the other party for carriage and termination, the originating party will pay to the latter @ Rs. 0.50 per meter call unit measured at the point of Interconnection for carriage and termination. (iv) For international calls originating in the network of BSO and handed over to BSNL for further carriage, BSO will pay at the rate of Rs. 0.70 per metered call unit as per the applicable ISD pulse rate at the Point of Interconnection. (v) Access charges for net local calls, ISD and STD calls shall be reviewed within six months (of signing this interim Interconnection Agreement) through mutual discussions. These access charges as finalized above shall be made effective retrospectively from the date of signing of this interim interconnect agreement. TRAI’s orders/regulations in this regard will become applicable from the date of effect of such orders/regulations.”

9. The contention of the petitioner was that in accordance with these clauses, it has paid to the respondent and the respondent raised no outstanding amount at the time of disconnection of the points of interconnect at Gurgaon TAX on 30.3.2004. The respondent, however, argued that these were all interim arrangements and the respondent was free to charge the rates decided by it relying on the undertaking given by the petitioner to the respondent quoted in para 6 above.

10. On the issue of payment, the learned counsel for the petitioner in fact went a step further and stated that the respondent was supposed to charge access charges as per the TRAI’s Orders/Regulations. He said that according to TRAI’s Interconnection Regulationss (Charges and Revenue Sharing) 2001, the respondent is supposed to charge only Re. 0.48 per MCU for the STD and Re. 0.66 for the ISD calls. He also quoted this Tribunal’s Order dated 27.4.2005 in Appeal No. 5 of 2002 whereby these charges are upheld. The respondent however contended that these rates were applicable to the designated TAX which in the instant case was Faridabad. Since the petitioner had taken interconnection at an additional Tax, it was liable to pay charges as decided by the respondent in terms of the agreement and also undertaking given by the petitioner (Para 6). It was submitted that on the contrary Access Charges at the rate of 0.50 Paise and 0.70 Paise already stands paid by the Petitioner as per the terms of the Supplementary Agreement. As against this, the Respondent is now belatedly demanding from the Petitioner 60 paisa per minute for STD and 78 paisa per minute for ISD calls as Access Charges. The petitioner has already paid the Access Charges @ 50 paisa per minute for STD calls and 70 paisa per minute for ISD call, i.e., charges higher than those prescribed by TRAI and upheld by this Tribunal.

11. Having gone through the IUC, our Order dated 27.4.2005, agreement between the petitioner and the respondent dated 6.12.2001, we find that the petitioner is entitled to seek PsOI from the respondent at the designated LDCC TAX in Haryana Circle which according to the respondent is at Faridabad. The contention of the petitioner that respondent nowhere in writing has conveyed that designated TAX is Faridabad is not acceptable to us since the petitioner had asked for interconnection at Faridabad and additional interconnection at Gurgaon. We say so because in accordance with the routing plan for handing over of calls by one operator into the network of another operator, the calls can be handed over either at near-end or far-end. In the instant case, the far-end TAX can be one of the two TAXs, i.e., Gurgaon or Faridabad. We have no reason to dispute the stand taken by the respondent that far-end TAX was Faridabad. The connection at Gurgaon TAX was additional TAX. Therefore, access charges for Faridabad TAX will be governed by the IUC which in the instant case is not under dispute. We will restrict our discussions only to TAX at Gurgaon. The petitioner had asked for PsOI and had given an undertaking to pay to the respondent on charges as decided by the respondent. At the same time, the mutual agreement was also binding on both the parties. According to the mutual agreement’s clauses (iii) and (iv), the petitioner is liable to pay at the rate of Re. 0.50 and Re. 0.70 per MCU for STD and ISD calls respectively. Since this interconnection is in addition to the TAX where the calls are supposed to be handed over, i.e., Faridabad, the IUC Regulation laying down rates of Re. 0.48 and Re. 0.66 for STD and ISD calls respectively is not applicable for Gurgaon TAX. We also note that as per further Clause (iv) of the interconnect agreement the rates beyond Re. 0.50 and Re. 0.70 were to be revised within six months of the signing of the agreement which was not done. Therefore a demand for access charges at the rate of Re. 0.60 and Re. 0.78 for STD and ISD calls respectively raised by BSNL in the impugned demand note are illegal and arbitrary and have been raised as an after-thought. We therefore set aside this demand and quash the demand note.

12. On the issue of carriage charges, the respondent stated that the appellant did not have its own network and it carried petitioner’s calls from Gurgaon to Faridabad but the point was opposed by the petitioner. The petitioner contends that it had its own network and was in a position to carry its calls from Gurgaon to Faridabad. Both the parties produced their Call Data Records (CDRs) to prove their respective stands. The CDR produced by the respondent was for calls carried by them from 1.1.2002 to 11.1.2002 only. The learned counsel for the petitioner said that for this period they had a special permission from the BSNL and it does not prove that its calls were carried by the respondent. The respondent states that as per clause 6.1.3 of the interconnect agreement, the petitioner is supposed to hand over these calls at the LDCC TAX at the far-end. The clause 6.1.3 is reproduced as under :- “STD/ISD calls originated by subscribers of BSO will be delivered to BSNL’s LDCC TAX of the LDCA in which the call is originated and not at any other intermediate points as provided under clause 2.1.13. On answer by the exchange on R2 signaling and for CCS7 signaling a Charge Band Message (Ref. Annexure-4) will be sent by the LDC TAX to BSO’s calls from BSO at the SDCC tandem in originating SDCA and LDCC TAX in the terminating LDCA on terms and conditions to be prescribed by BSNL separately. Far end handover shall be accepted at the terminating SDCC in respect of calls meant for terminating in that SDCA.”

13. It was submitted that the petitioner had no network and therefore the respondent carried its calls to Faridabad and petitioner was liable to pay carriage charges for the calls. As per clause 6.1.3, the calls are either to be handed over at the far-end at the TAX on LDCC or at the near-end at the SDCC tandem. In case the calls are handed over at respondent’s SDCC tandem, these calls will be carried by the respondent from SDCC tandem to the TAX and petitioner is liable to pay for the same as per the IUC regulation. However, in the instant case, the petitioner never sought connection at SDCC tandem and neither the respondent asked the petitioner for connectivity at SDCC tandem. On the contrary, the interconnectivity was asked at both the TAXs at Gurgaon and Faridabad. This does not therefore make a case for carriage of calls of the petitioner from Gurgaon to Faridabad and any bills raised by the respondent with the petitioner are illegal. However, in case any calls have been carried by the respondent, it is well within its rights to charge the same from the petitioner based on the CDR which will be the basis of raising such bills and the copy of the CDR will be given to the petitioner for such bills for carriage charges. We consider this fair on the work done principle.

14. Accordingly, 75% of the demand deposited by the petitioner with the respondent as per our Order dated 30.12.2005 will be refunded to the petitioner with interest at bank rate.

15. With the above directions, the petition stands disposed of.

…..……………..J (Arun Kumar) Chairperson

………………. (D.P.Sehgal) Member