RELIANCE COMMUNICATION LTD. Vs BHARAT SANCHAR NIGAM LIMITED

S.B. Sinha Introduction Interpretation and/or application of Clause 6.4.6 of the Interconnect Agreement inserted by way of an Addenda VI thereto on or about 28.2.2006 is in question in this petition, which has been filed by the Petitioner herein, claiming inter alia for the following relief:- “Quash and set aside the bills dated 15.10.2004 and 21.3.2005 and disconnection notices dated 5.3.2008 and 2.2.2009.”

Background Facts 2. The Petitioner is a licensee, the license having been granted in terms of the proviso appended to Section 4 of the Indian Telegraph Act, 1865. 3. It entered into a Basic Interconnect Agreement with the Department of Telecom (DoT) of the Union of India. The Respondent herein was constituted and took over all the telecommunication activities of the Department (DoT), and, thus, the said agreement became binding on the parties hereto. The Central Government floated a scheme whereby and whereunder the basis operators could opt for migration to Unified Access Service (UAS) licenses subject to certain conditions. 4. The interconnect agreements between the two private operators are governed not only by the conditions of license issued by the UOI but also in terms of the directions issued by the Telecom Regulatory Authority of India (TRAI) under Section 11 (1) (b) of the Telecom Regulatory Authority of India Act, 1997. (The Act) 5. The DoT on or about 24.06.2003 issued guidelines to all Basic Service Operators, National Long Distance Operators and International Long Distance Operations as regards the operations of clandestine/ illegal telecommunication centres/ telephone exchanges so as to enable it to curb such menace, some of the relevant clauses whereof read as under :- “3 (ii) The call detail records for outgoing calls made by the customers should be analyzed for the subscribers making large number of calls day and night and to the various telephone numbers.

Normally such numbers do not receive incoming calls. This can be done by running special program for this purpose. The service provider should devise appropriate fraud management and prevention programme and fix threshold levels of average per day usage in minutes of the telephone connection; all telephone connections crossing the threshold of usage should be checked for bonafide use. A record of check must be maintained which may be verified by Licensor anytime. The list/details of suspected subscribers should be informed to the Sr.DDG(Vigilance), DoT, West Block-I, Wing-2, R.K. Puram, New Delhi – 110066, immediately. (iii) Active support must be extended by the service providers to the vigilance units of DoT, for detection of such clandestine/illegal telecommunications facilities. For this purpose, names of the Nodal officers & alternate Nodal officers in respect of each licensed service area as communicated to the Intelligence Agencies for monitoring of telecommunications, should also be forwarded to Sr.DDG(Vig). The Vigilance Unit of DoT will contact the Nodal Officer/alternate Nodal Officer, and till the time such nomination is received or in case of non-availability of such officer, the DoT vigilance units will contact the Chief Executive Officer of the licensee, for such support/coordination.

(iv) Calling Line Identification (CLI) shall never be tampered as the same is also required for security purposes and any violation of this amounts to breach of security. CLI Restriction should not be normally provided to the customers. Due verification for the reason of demanding the CLIR must be done before provision of the facility. It shall be the responsibility of the service provider to work out appropriate guidelines to be followed by their staff members to prevent misuse of this facility. This subscribers having CLIR should be listed in a password protected website with their complete address and details so that authorized Government agencies can view or download for detection and investigation of misuse. However, CLIR must not be provided in case of bulk connections, call centres telemarketing services. (v) Bulk users premises should be inspected by the services at regular intervals for satisfying themselves about bonafide use of such facilities. A record of such inspection should be maintained and preserved for minimum one year for inspection/verification by the licensing authority or a designated officer of the authority.

(viii) All the ILD operators should transit the CLI as received from the foreign callers. In case of CLI is not received from the distant end (foreign party) then the ILD operator in the country should introduce his assigned two digit carrier identification code followed by the country code from where the call is received in no case, the call should be offered to BSO/CMTS without any CLI. This is to identify the origin of call and ILD operator handing the call.”

6. The TRAI issued IUC Regulations, 2004, which remained operative until 31.1.2005.

7. Addenda VI, as noticed heretobefore, was inserted on or about 28.2.2006, with retrospective effect from 14.11.2003 i.e. the date from which the Petitioner migrated to UASL. It reads as under:- “(a) Unauthorized calls i.e. calls other than specified for that trunk group if detected, for which the applicable IUC is higher than the IUC applicable for calls prescribed in that trunk group, then BSNL shall charge the UASL at the highest applicable for such unauthorized calls, for all the calls recorded on this trunk group from the date of provisioning of that POI or for the preceding two months whichever is less. (b) The CLI based barring facility shall be activated at the POIs wherever technically feasible to ensure that the traffic handed over to BSNL is in the appropriate trunk groups only. Wherever it is technically not feasible to activate CLI based barring periodic monitoring of the incoming trunk groups shall be done by BSNL to ensure this objective. The calls received by BSNL without CLI or modified/tampered CLI from UASL shall be charged at the highest slab i.e. as for ISD Calls. In case such calls are received by BSNL on any trunk group, then all the calls recorded on this trunk group shall be charged at the rates applicable for IUC of incoming ISD Calls from the date of provisioning of that POI or for the preceding two months, whichever is less.” (Emphasis supplied)

8. The Respondent herein informed the Petitioner indicating its suspicion as regards use of telephone number 280-3041000 as having been illegally interconnected on the premise that international calls were being displayed with STD/Local numbers. 9. It now appears that the said telephone number was allotted to one M/s Raj Telecom at Rajkot having its office at 301, Yogi Anand, Kasturba Gandhi Road, Rajkot, by reason whereof about 200 connections had been given to it by the Petitioner. 10. On receipt of the said letter dated 8.10.2004, a joint raid was conducted and a First Information Report (FIR) was lodged. According to the Petitioner it had disconnected the POI connection of M/s Raj Enterprises on the said date. A report to the said effect was also sent by it to the Vigilance Cell of DoT on or about 8.10.2004. 11. A meeting of the parties held on 11.10.2004, wherein the Petitioner was asked to take further action in the matter i.e. by lodging a FIR with the Police Authorities, pursuant whereto, a letter was sent to the Commissioner of Police on or about 12.10.2004, requesting him to treat the same as a FIR. 12. The Respondent‟s Vadodara unit, however, on or about 13.10.2004, raised a contention that as tampering has been made from the Reliance Network; switch response having been received in relation thereto that the number was unallocated one/ not in use.

13. The Petitioner was informed by the Respondent that in terms of its circular letter dated 28.1.2004, it would be charged @ Rs.19.15 per minute for all incoming calls at all PBSOs/POIs from July, 2004, in response whereto by its letter dated 14.10.2004, Petitioner requested Respondent to provide supporting evidence for alleged termination of ISD calls through the alleged number to enable the police authorities to investigate the matter in a better manner. A request was also made to withdraw the said notice dated 13.10.2004. 14. However, a bill for a sum of Rs.6,89,63,585.15/- was sent to the Petitioner on or about 15.10.2004 for the period July and September, 2004. A disconnection notice was also issued on 15.10.2004. In the said letter, however, it was mentioned that the rate of incoming ISD calls would be @ Rs.5.65 per minute per call. 15. A circular letter was issued by the Respondent on or about 25.10.2004 laying down the procedures to be followed by the private operators to tackle unauthorized diversion/routing of calls. 16. A request was again made by the Petitioner in terms of its letter dated 15.10.2004 to withdraw the said notices. However, a fresh disconnection notice was issued on 18.3.2005, relying on or on the basis of Clause 11 of a circular letter dated 28.1.2004 issued by the Respondent itself, which reads as under :- “11 The CLI based barring facility shall be activated at the PoIs wherever technically feasible to ensure that the traffic handed over to BSNL is in the appropriate trunk groups only. Wherever it is technically not feasible to activate CLI based barring periodic monitoring of the incoming trunk groups shall be done by BSNL to ensure this objective. The calls received without CLI by BSNL from various operators shall be charged at the highest slab i.e. as for ISD Calls. In case such calls are received by BSNL on a trunk group not meant for such calls then all the traffic received on such trunk group for that month/ billing cycle shall be charged at the rates applicable for IUC of incoming ISD Calls.”

17. Another bill for a sum of Rs.9,89,68,892/- was served on the Petitioner in supersession of the bill dated 15.10.2004, to which again it requested Respondent to withdraw the bill contending that it had taken all prompt actions and in fact owner of M/s Raj Enterprises had also been arrested. 18. A circular letter was issued on or about 13.6.2005 stating that if calls received at POI was less than 0.5%, the service provider would be charged double of the calls at the highest rate, except in cases where deliberate misuse or routing/ tempering is established.

19. The Petitioner thereafter by two letters being dated 19.12.2005 and 20.4.2006 reiterated its stand that it had taken prompt action in the matter. 20. We may notice that BSNL in its letter dated 24.5.2006 acknowledged the action(s) taken by the Petitioner, stating:- “ As per guidelines issued by BSNL Corporate office as well as DOT, if any customer is found in involvement for illegal activity like put through illegal ISD calls by passing ILD Operator, then concerned Telecomm Service Operator has to register a FIR against such subscriber under Telegraph Act, 1885. Vadodra, Nadiad, Rajkot and Valsad SSAs have intimated to your office regarding illegal ISD calls received from Reliance Customers who are calling parties as per CLI and called terminated in BSNL network. BSNL have confirmed by dialing called subscriber numbers that these calls were incoming ISD calls from their relatives in aboard, accordingly BSNL office had submitted the lists CLI numbers who are involved to put through illegal ISD calls/grey market ISD calls to your office for taking necessary action against those Reliance customers as per guidelines issued for grey market ISD calls.

In response to BSNL office letter, your office had submitted the list of Name of the Parties and addresses who were found to put through ISD Calls as illegal ISD calls/grey market ISD calls. In this context, it is requested to furnish the copy of the FIR, registered against such Reliance customers, to the concerned SSA Head with request to settle the bills for illegal routing of ISD calls/ alleged grey market calls charged by BSNL to M/s. RIL along with submission of undertaking as under. “The amount of ADC for illegal ISD calls/grey market calls originated by Reliance customers, which is dues to be given to BSNL, shall be recovered from such Reliance customers and then shall be paid to BSNL.”” 21. A similar letter was also issued on 29.5.2007. By its letter dated 5.7.2007, the Respondent while appreciating the prompt action taken by the Petitioner, however, justified its demand relying on or on the basis of Clauses 2.5.1 and 6.4.6 (a-d) of the interconnect agreement; whereto Petitioner by its letter dated 12.7.2007 reminded the Respondent of the co-operation accorded by it, as also compliance of the directions issued by the Respondent in its circular letters, on its part.

Yet again, a disconnection notice for alleged illegal routing of calls under NLD services was issued raising a demand for a sum of Rs.9,17,27,716/- by its letter dated 1.4.2008 and 25.10.2004. 22. The Petitioner reiterated its stand that it had all along been co-operating with the Respondent. 23. A fresh disconnection notice was issued even thereafter. 24. This petition was filed on 14.12.2009 25. The matter was heard and by a judgment and order dated 24.5.2010, this Tribunal inter alia opined :- (i) Clauses 2.5.1, 2.5.4 and 6.4.6 (a) (b) (c) and (d) were not in existence in the year 2004.

(ii) Clause 11 of the circular dated 28.1.2004 had a limited operation. (iii) Some actions had been taken by the Petitioner as was required by the circular letter issued by the DoT and/or the Respondent. (iv) The Petitioner, was entitled to be heard in the matter in consonance with the principle of natural justice.

26. The Respondent herein preferred an appeal thereagainst before the Supreme Court of India which was marked as Civil Appeal No.6706 of 2010. 27. By reason of a judgment and order dated 29.11.2010, the said judgment and order dated 24.05.2010 was set aside and the matter has been remitted to it. 28. No other or further evidence was led by any of the parties hereto. In fact a statement was made by learned counsel of the parties that no oral evidence would be adduced. 29. We would be dealing with this aspect of the matter in some details in the connected Miscellaneous Application.

30. Mr.Navin Chawla, learned counsel appearing on behalf of the Petitioner, in support of this petition would inter alia contend:- (i) In the facts and circumstances of this case Clause 6.4.6 of the interconnect agreement as inserted by Addenda VI is not applicable. (ii) The retrospective effect given to the said Addenda was for a limited purpose i.e. continuity of the UAS license and not for the purpose of imposing any fresh liability upon the operators. (iii) In any event the Petitioner, having taken immediate action by disconnecting the telephone connections of M/s Raj Enterprises as was required in terms of various circulars issued by the DoT and the Respondent, cannot be said to be involved in any manner whatsoever sofar as tampering of the POI or wrong routing of calls is concerned. (iv) It is incorrect to contend that the Petitioner at any point of time admitted the fact that M/s

Raj Enterprises had been running a clandestine Exchange. (v) Keeping in view the letters dated 24.5.2006, 29.5.2007 and 5.7.2007 issued by the Respondent itself, admitting and acknowledging full co-operation on the part of the Petitioner, the impugned demands are liable to be quashed having regard to Respondent‟s own circular letter dated 25.10.2004, where it was clearly stated that such a penalty would be levied only when the operator does not convey the proper address of the customers. (vi) The Respondent, while admittedly gave effect to the other circular letters issued by it; could not have given a go bye to its own circular letter dated 25.10.2004 and refuse to act on the basis thereof. (vii) Clause 6.4.6 (a) and (b) in view of the decision of the Hon‟ble Supreme Court of India in its judgment and order dated 29.11.2010 having been held to be providing for a reasonable pre-estimated damages, no retrospective effect could be given thereto, as quantification of such damages must be proved as has been held by the Supreme Court in the case of Star India Ltd vs. Commissioner of Central Excise reported in (2005) 7 SCC 203. (viii) The circular letter dated 28.1.2004, having been issued unilaterally and being contrary to the directions issued by the TRAI and otherwise being not in consonance with the IUC Regulations, no liability could be fastened on the Petitioner relying on or on the basis thereof. (ix) The Supreme Court of India itself having held that a call masking would take effect when a licensee alters the identity of the incoming international connection point to some other service provider and as in this case, the said condition is not satisfied, the impugned action of the Respondent must be held to be bad in law.

(x) The Respondent, in any event, could not have levied any penalty and/or charges relying on or on the basis of the circular letter dated 24.6.2003 issued by the DoT on 24.6.2003. (xi) A licensee cannot be held responsible for the acts of a third party and that too without its knowledge. 31. Ms.Manisha Dhir and Mr.K.P.S. Kohli, learned counsel appearing on behalf of the Respondents, on the other hand, urged:- (i) Having regard to the order passed by this Tribunal wherein facts have been found against the Petitioner that Clause 6.4.6 was inserted by reason of the Addenda VI have a retrospective effect and the same having not been interfered with by the Supreme Court of India, Petitioner should not be permitted to re-agitate the same question once over again. (ii) The Supreme Court of India having held that Clause 6.4.6 postulates a reasonable pre-estimated damages keeping in view the Regulatory regime and loss of revenue suffered by BSNL, what is left for determination is only the quantification of the amount payable by the Petitioner to the Respondent herein. (iii) On a perusal of the order dated 18.7.2011, passed by this Tribunal in MA No.19/2011, it would be evident that the Petitioner having not been permitted to raise new grounds with regard to the restrospectivity of Clause 6.4.6, it is not correct to contend that the said question can still be raised. (iv) From the judgment and order passed by the Supreme Court of India itself, it would appear that the telephone number in question being 280-3041000 was unauthorized and/or unallocated one, as even for the period 5.10.2007 and 7.10.2007, the response received on dialing of the said number was that it was not in use, which would clearly go to show that call-masking had taken place at the instance of the Petitioner itself and in that view of the matter, it is incorrect to contend that it had disconnected the said connection on 8.10.2007. (v) The judgment of the Supreme Court of India would further clearly show that the question as to whether the call was an unauthorized one or not had been raised as far back as on 13.10.2004 which also clearly goes to show that the number in question was an unallocated one.

32. The factual aspects of the matter having been considered in details both in the judgment of this Tribunal dated 24.5.2010 as also the judgment and order of the Supreme Court of India dated 29.11.2010, it may not be necessary for us to state the same once over again. 33. Mr.Navin Chawla and Ms.Manisha Dhir have taken us through the said judgments as also the circular letters issued by the DoT and BSNL from time to time in great details. 34. We would, however, refer to some of the relevant circulars a little later.

35. Keeping in view the aforementioned factual backdrop, in our opinion, the questions which arise for our consideration in this petition are as under:- (i) Whether clause 6.4.6 inserted by reason of Addenda VI on 28.2.2006 could have been given any retrospective effect i.e. w.e.f. 14.11.2003. (ii) Whether the Petitioner having complied with the guidelines issued by the DoT dated 24.6.2003, any claim in terms of Clause 6.4.6 or otherwise could be raised. (iii) Whether the Petitioner is entitled to the benefit of circular letter dated 25.10.2004, issued by the Respondent.

36. This Tribunal in its judgment dated 24.5.2010 noticed the letters issued by the Respondent herein accusing the Petitioner of illegal routing of ISD calls upon tampering of the CLI from a number specified therein. 37. It is now not in dispute that the Petitioner had granted 200 connections to one M/s Raj Enterprises having its office at 301, Yogi

Anand, Kasturba Gandhi Road, Rajkot on or about 3.9.2004, therein a CLI 0281-3041000. It is, therefore, not a case of non-CLI. 38. The correctness or otherwise of the allegations that the said telephone number was used for making international calls to the local/and domestic numbers is not in issue before us.

39. It is also not in dispute that by reason of the said illegal actions on the part of a customer of the Petitioner, BSNL had suffered a huge loss of revenue to which it was entitled to in terms of the IUC Regulations framed by the TRAI. 40. The core question, however, is as to whether the Petitioner was a party to the wrong routing of calls and/or masking of the same or M/s Raj Enterprises a proprietorship concern of one Rajesh Rasik Lal Patel, was running a grey market Telephone Exchange without its knowledge. 41. There exists a difference of opinion as to whether technically it was possible to put a call from one side, although, from the other side the recipient thereof had been receiving an answer “the number does not exist”. At no stage of the proceedings any technical evidence has been adduced.

42. So far as the question as to whether the Petitioner had disconnected the telephone connection immediately on receipt of a telephone call from the General Manager of the Respondent alleging masking of calls had been considered by this Tribunal in its judgment dated 24.05.2010 in the following terms :- “For the foregoing reasons, we are also of the opinion that other contentions raised by the parties hereto need not be gone into. All contentions, save and except, what has been found by us heretobefore shall remain open. The impugned demand in our opinion being not sustainable is set aside accordingly. However, we are of the opinion that the amount deposited by the petitioner need not be directed to be refunded. This order is being passed afresh because no prayer in this behalf has been made before us. Secondly because the petitioner filed the aforementioned Misc. Petition which was not maintainable and therefore the petitioner did not deposit any amount and thirdly because in the event it would be able to show that it has not committed any breach of the interconnection agreement it would be entitled to refund of the deposited amount with interest. Even otherwise, when a demand is made, subject to just exceptions, ordinarily the operators under the interconnection agreement are bound to deposit 50% of the demanded amount besides the admitted amount. Furthermore, we have set aside the demand on the ground of non-compliance of the principle of natural justice and, therefore, we are of the opinion that a conditional order may be passed in a case of this nature.

The respondent shall be given liberty to the petitioner to show that before disconnecting the number, all actions were taken strictly in terms of the circular letter of the DoT dated 24.6.2003 and its case otherwise comes within the purview of the circular letter issued by the respondent. In the event any occasion arises therefor, the petitioner may ask the respondent to supply the CDRs for the concerned period which may be complied with. This petition is allowed in part and with the aforementioned observations and directions.”

43. The Supreme Court of India, however, in paragraph 5 of its judgment noticed as under :- “5. In September 2004, BSNL received several complaints from its subscribers in Gujarat that they were receiving ILD calls with local CLI numbers. On the basis of these reports, BSNL made its own enquiries by calling the local CLI number i.e. 0281- 3041000. This was on 5.10.2004, 6.10.2004 and 7.10.2004. Each time the number was called the response from the other end was that the number did not exist. Therefore, on 8.10.2004, BSNL reported the matter to Reliance at which time Reliance had sent its report to DoT regarding the same. In the said report to DoT, Reliance stated that the wrong routing of ILD calls was being done by one of its subscribers viz. M/s. Raj Enterprises (who was given 60 call circuits). The series of numbers allotted to Raj Enterprises was from 0281-3041000__0281-3041199 i.e.200 numbers.”

44. At this stage, it must be placed on record that the result of the purported enquiry by the Respondent herein by calling the local CLI number i.e. 0281-3041000 on 5th, 6th and 7th October, had not been placed on record before us in the original proceedings. After the matter was remanded to this Tribunal by the Supreme Court of India in terms of its aforementioned judgment dated 29.11.2010, the Petitioner filed an application for amendment of the petition which was dismissed by an order dated 18.7.2011. 45. Despite our repeated query, learned counsel for the Respondent could not state as to whether the said documents were filed before the Supreme Court of India by way of additional affidavit or merely a statement was made to that effect in the list of dates. We would consider this aspect of the matter a little later. 46. On the one hand, Ms.Dhir contended that the finding of this Tribunal that the Petitioner had disconnected the said telephone number on 8.10.2004 must be considered afresh, Mr.Navin Chawla would submit that the same is binding on the parties. 47. This Tribunal, it may be mentioned that keeping in view the observations made therein and as noticed heretobefore, did not intend to determine the said question finally as ultimately it was of the opinion that despite the fact that the conduct of the Petitioner was not free from doubt but it could not have been deprived of an opportunity of being heard.

48. The said judgment of this Tribunal, however, has been reversed by the Supreme Court of India holding as under :- “54. We need to clarify that in this case our judgment is restricted only to the interpretation of Clause 6.4.6 of the interconnect agreement read with the pre-estimate of reasonable compensation for the loss suffered by BSNL. Thus, we set aside the impugned judgment and remit the matter to TDSAT to decide the matter de novo in accordance with the law laid down hereinabove. 55. However, we need to highlight one aspect. In the letter dated 13.10.2004 addressed by BSNL to Reliance, it has been alleged that the calls have landed at the POIs of M/s. Reliance Infocomm Ltd. at Karellbaug, Panigate, Alkapuri, Makarpura, Padra, Dabhoi and Miyagam exchanges in Vadodara SSA. The said letter highlights one more important aspect. It is alleged that the number 0281-3041000 was an unallocated number with Reliance during the relevant period. This aspect needs to be examined by TDSAT on facts.”

49. The Respondent, however, did not adduce any other or further evidence to prove the contents of the said letter dated 13.10.2004, wherein it had been alleged that the number in question was an unallocated one. 50. Mr.Navin Chawla contended that principally that was the reason as to why the Petitioner sought to amend the petition. 51. Even otherwise, the parties were at liberty to adduce oral or documentary evidence in support of their respective cases on the question as to whether the Telephone Number 0281-3041000 was an unallocated number or not. Judicial discipline mandates that this Tribunal examine the said question on fact in view of the direction of the Supreme Court of India; but for the said purpose it was obligatory on the part of the parties hereto to draw our specific attention to the aforementioned direction. They neither did the same nor did they adduce any other or further evidence. 52. On the aforementioned premise, we have no other option but to determine the said question on the materials which have been brought on record by the parties. 53. Ms.Dhir would contend that both circumstantial evidences as also the presumptive evidence as envisaged under Section 106 of the Indian Evidence Act would be sufficient to hold that the number in question was an unauthorized and/or unallocated once.

On the other hand, submission of Mr.Chawla is that it was for the Respondent to prove the said fact. 54. The core question herein is as to whether the Respondent was bound to give effect to its circular letter dated 25.10.2004? The said circular letter reads thus :- “ Sub: Continuance of Unauthorised Diversion in routing of ILD Calls. It has been brought to the notice of this office that although M/s. Reliance Infocomm Ltd. (RIL) has claimed that tampering of CLI has been stopped w.e.f. 16th September 2004 but it has been found that international calls have been delivered on local POI of M/s. RIL, at trunk group meant for intra circle terminating traffic, at various SDCC tandem exchanges, with CLI of M/s RIL network of other SDCAs which is different from „STD Code + 3039 xxxx‟. This information may be received either from customers or from BSNL staff also. 2. These may be instances of either tampering of CLI by the concerned service provider i.e. M/s RIL or due to the illegal telephone exchanges of grey market. Other private service providers may also be transiting and handing over such calls to BSNL at their POIs.

In such cases, the CLI reported by the subscriber on receipt of International calls should be analysed by the concerned SSA of BSNL, by dialing the CLI number and ascertaining whether these numbers exist in the network of M/s RIL or these numbers do not exist. 3. In case these numbers do not exist then the concerned SSA of BSNL should immediately bring this information to the notice of that SSA of BSNL, where such numbers of M/s RIL are supposed to be located based on the CLI received, which shall then ask M/s RIL to arrange details of the subscribers and physical location where these telephone have been installed whose CLI has been received in incoming ISD calls. On receipt of these details of the subscribers and physical locations, a BSNL official along with a representative of M/s RIL shall verify the same and subsequently the local security agencies may be involved to stop such illegal grey market operations as per instructions issued by the O&M Cell of BSNL CO vide letter NO.254-1/2003-O&M/93 dated 21 July, 2003 regarding operation of clandestine/illegal telecom centres/telephone exchanges/ILD grey market.

4. In case M/s RIL do not convey any or proper address of the customer whose CLI was sent then same should be communicated back to the concerned SSA of BSNL, where such incoming ISD calls with domestic CLI was received, with a copy to circle office of this SSA of BSNL. In case the concerned SSA of BSNL, where such incoming ISD calls were received, finds that the telephone number of which CLI has been received do not exist or received an intimation that M/s RIL has not conveyed any or proper address of the customer whose CLI was sent, then it shall issue a notice for disconnection under misuse of the POI in addition to raising bill, for arrears of ADC, for all the calls recorded on this trunk group from the date of provisioning of that POI or for the preceding two months whichever is less, at a rate applicable for incoming International calls, to the concerned telecom service provider who has handed over such calls to BSNL. 5. Such instances of issue of disconnection notice and raising of the bills, for arrears of ADC, as detailed above should be consolidated at BSNL Circle office level and then communicated to this office.”

55. The contention of the Respondent was that the same dealt with HCD calls only. On a plain reading of the said circular it does not appear to be so. 56. According to the Respondent, keeping in view the fact that the Reliance had admittedly been dealing in HCD calls, which was per-se illegal, the said circular letter will have no application in the instant case.

57. The date of the said circular letter being 25.10.2004, in our opinion, is significant in so far as by that time not only a call without a CLI and/or tampered CLI was detected, First Information Report had also been lodged against the proprietor of M/s. Raj Enterprise and he was arrested. Demands were also raised. 58. Para 1 of the said letter refers to the claim (presumably in some other case) of the Petitioner that all wrong routed calls have stopped from 16.9.2004. 59. All concerned, therefore, were directed to gather inforamtions from the customers as to whether any call having a CLI different from „STD + 3039 xxxx‟ had been received. 60. Para 2 speaks of some instances in such matter. It mainly speaks about two aspects of the matter; one being tampering of CLI by the concerned service provider i.e. RIL; and the second being the operation of illegal telephone exchanges in grey market. 61. A direction for analysis of receipt of international calls vis-à-vis the CLI reported by the subscribers was recommended so as to find out as to whether the number existed or not. 62. Para 3 deals with a situation where the number exists.

In such an event RIL was to provide the details of the subscriber and physical location regarding installation of telephone, whose CLI has been received, whereupon a joint inspection to verify the same was required to be made; pursuant whereto the local security authorities were required to be involved to stop such illegal grey market operation. 63. Reference in this connection has been made to BSNL‟s circular letter dated 21.7.2003 regarding operation of clandestine/illegal telephone centres/illegal telephone exchanges/ILD grey market. 64. Para 4 deals with the attributes of RIL i.e. a situation where no address of the customer or proper address (i.e. locatable address) is supplied by the Petitioner. 65. In the event it is found that the telephone number of which CLI had been received, did not exist or an intimation is received that RIL has not conveyed the proper address of the customer; it was stated : “then it shall issue notice of disconnection under misuse of POI in addition to raising bill for arrears of ADC for all the calls recorded on the said trunk group from the date of provisioning of that POI or from all the deficit, whichever is less”.

66. The circular letter in question is general in nature. It takes into consideration all probable situations. It, in all probabilities, might have been issued having regard to the fact that in the instant case not only the First Information Report was lodged by BSNL on 08.10.2004, a meeting was called on 11.10.2004 and Petitioner was asked to lodge a First information Report of its own.

67. Had the complicity of the Petitioner in the matter been suspected, ordinarily it would not have been called upon to lodge a First Information Report itself. 68. Had the informations sought for were not complied with, the Respondent could have taken a positive stand that the Petitioner either itself is guilty of tampering of CLI by showing the CLI of a local number, which was in fact un-allocated, or it was a case of illegalities committed by M/s. Raj Enterprise and RIL was a co-conspirator or its accomplice. 69. No such stand was taken by the Respondent. 70. We may also place on record that the Respondent, keeping in view the fact that the First Information Report admittedly was lodged by the Petitioner, in its reply categorically stated that IUC including ADC be recovered from the customers of the Petitioners, while emphasizing its stand that the Petitioner is liable therefor having regard to the strict civil liability clause contained in the interconnect agreement which is said to be absolute in nature. Both stands appear to be somewhat inconsistent. 71. It had neither denied nor disputed the applicability of circular letter dated 25.10.2004 even at that stage or soon thereafter. 72. Even no such stand has been taken by it in its reply.

We may notice in this regard, the following averments made by the Respondent in its reply:- “The so-called lodging of FIR subsequently and/or issuing letter in 2007 does not create any impact whatsoever on the absolute liability of the Petitioner towards the Respondent BSNL. It is denied that there was not any violation of the agreement between the parties by the Petitioner. In each of the letter of the BSNL, the responsibility and liability of the Petitioner has been reiterated. The BSNL circular dt. 25.10.04 had reiterated the continuing tampering of CLI by Reliance observed in various circles. The Respondent BSNL had once again called upon the Petitioner vide its notice dt. 05.03.08 to make the payments.” xxx “It is respectfully reiterated that BSNL for the continuing tampering of CLI was compelled to issue a circular dt. 25.10.04 at Pg.43 of the paper book and the attention of this Hon‟ble Tribunal is invited to para 1 thereof. In any case and without prejudice to the above, it is submitted that the said BSNL communication dt. 25.10.04 to its own officers, does not create any impact whatsoever on the absolute liability of the Petitioner for payment of the determined amount to the Respondent BSNL.” “The BSNL circular dt. 25.10.04 does not create any impact whatsoever on the issue of payment of the demanded amount by the BSNL and all the contentions to the contrary made by Reliance are misconceived, incorrect and are denied and the submissions made hereinabove are respectfully reiterated. It is reiterated that in the HCD case, when Reliance had admitted tampering of CLI the recorded announcement from the Reliance switch was also similar as was in the present case clearly highlighting deliberate tampering of CLI. The interpretation sought to be given by Reliance to the BSNL circular dt. 25.10.04 is completely misleading, misconceived and is denied. The only response which the BSNL could have given in the facts and circumstances of the present case including having regard to the BSNL communication dt. 25.10.04 to its own officer was to take necessary steps for early recovery of the due amount from the Petitioner which has not been paid by the Petitioner to the Respondent BSNL. The reference to Parliament questions is completely misconceived in the facts and circumstances of the present case.”

73. It has been noticed heretobefore that in para 5 of its judgment, the Supreme Court of India referred to an enquiry conducted by the BSNL on receipt of several complaints to the effect that ILD calls were being received by the subscribers with a local CLI numbers. On 05.10.2004, 06.10.2004 and 07.10.2004, the number 02813041000 was called and the response thereto was that “the number did not exist”. 74. Reference was thereafter made by its SDE (Vigilance) that the said number was suspected to be engaged in connecting international calls to local calls displaying local numbers illegally, whereupon a joint raid was made and a First Information Report, being FIR No. 560 of 2004, was registered on behalf of BSNL with Pradyuman Nagar Police Station.

75. A Fact Sheet was also served by the Petitioner with regard to the said suspected case. It also intimated that the number in question had been disconnected. 76. No document has been brought on record by the parties hereto with regard to the details of the calls given on those dates by the BSNL. 77. Mr. Kohli, on instructions, submitted that the Supreme Court of India recorded the said fact from the original file called for by it. 78. Ms. Manali Singhal, however, contended that no such order calling for the original records of the Gujarat circle was passed by the Supreme Court of India. 79. The contention that the aforementioned number was un-allocated/un-authorised number was raised for the first time by the Respondent before the Supreme Court of India. 80. The Respondent curiously did not file any additional evidence before this Tribunal, despite the fact that the matter was remanded by the Supreme Court of India. It did not prove the purported call details. 81. A reply was filed by the Respondent in M.A. No. 190 of 2011, wherein the Petitioner had prayed for amendment of the petition.

The relevant statements made therein are to the following effect:- “DABHOI-MBM Time: Wed Oct 6 14:04:58 2004

DISPLAY CALL DETAIL RECORD INFORMATION CALL DETAIL RECORD TYPE = CLLNG CALLING SUBSCRIBER DETAILS DIRECTORY NUMBER = 254000 TERMINAL EQUIPMENT NO = 1-1-1-5-1 OBSERVATION CLASS = OBS-ORG CATEGORY = PRI01 CALL IDENTITY = BM_1 – 93404 CALL DATE = 06-OCT-2004 14:01:58 BEARER SERVICE AUDIO CALLED SUBSCRIBER DETAILS DIRECTORY NUMBER = 02813041000 TERMINAL EQUIPMENT NO = 2-1-1-17-14 CATEGORY = PRIO8 CALLED SUBSCRIBER PATH DESCRIPTOR TSS1 IDENTITY = 278 TSS2 IDENTITY = 278 TS IDENTITY = 458 BASE MODULE NUMBER BM_2 CALLING SUBSCRIBER PATH DESCRIPTOR TSS1 IDENTITY = 278 TSS2 IDENTITY = 278 TS IDENTITY = 458 BASE MODULE NUMBER = BM_1 ORIGINATION TIME = 307E7C9D DIAL TONE CONNECT TIME = 307E7C9D FIRST DGT RCV TIME = 307E817F LAST DIGIT RECEIVE TIME = 307E9CC3 TONE CONNECT TIME = FFFFFFFF ANSWER RECEIVED TIME = FFFFFFFF CLEAR FORWARD TIME = FFFFFFFF CLEAR BACKWARD TIME = FFFFFFFF

TSS RELEASE TIME = 307E9D81 CALL STATUS = NU METER_COUNT = 0

DABHOI-MBM Time: Wed Oct 6 14:05:35 2004 DISPLAY CALL DETAIL RECORD INFORMATION

CALL DETAIL RECORD TYPE = CLLNG CALLING SUBSCRIBER DETAILS DIRECTORY NUMBER = 254000 TERMINAL EQUIPMENT NO = 1-1-1-5-1 OBSERVATION CLASS = OBS-ORG CATEGORY = PRI01 CALL IDENTITY = BM_1-93414 CALL DATE = 06-OCT-2004 14:02:09 Bearer Service AUDIO CALLED SUBSCRIBER DETAILS DIRECTORY NUMBER = 028130410000 TERMINAL EQUIPMENT NO = 2-1-1-17-12 CATEGORY = PRI08 CALLED SUBSCRIBER PATH DESCRIPTOR TSS1 IDENTITY = 27F TSS2 IDENTITY = 27F TS IDENTITY = 456 BASE MODULE NUMBER = BM_2 CALLING SUBSCRIBER PATH DESCRIPTOR TSS1 IDENTITY = 27F TSS2 IDENTITY = 27F TS IDENTITY = 450 BASE MODULE NUMBER = BM_1 ORIGINATION TIME = 307EA6EB DIAL TONE CONNECT TIME = 307EA6EB FIRST DGT RCV TIME = 307EA9BB LAST DIGIT RECEIVE TIME = 307EB203 TONE CONNECT TIME = FFFFFFFF ANSWER RECEIVED TIME = FFFFFFFF CLEAR FORWARD TIME = FFFFFFFF CLEAR BACKWARD TIME = FFFFFFFF TSS RELEASE TIME = 307EB2AD CALL STATUS = NU METER_COUNT = 0 = = = = == = = == = = = = = = = = = = = = = = = = = = = = = = = = = = = DABHOI-MBM Time: Wed Oct 6 14:05:39 2004 == == = = = = == = = = = = = = = = = = = = = = = = = = = = = = = = = = = DISPLAY CALL DETAIL RECORD INFORMATION CALL DETAIL RECORD TYPE =CLLNG

CALLING SUBSCRIBER DETAILS DIRECTORY NUMBER = 254000 TERMINAL EQUIPMENT NO = 1-1-1-5-1 OBSERVATION CLASS = OBS-ORG CATEGORY = PRI01 CALL IDENTITY = BM_1 -93417 CALL DATE = 06-OCT-2004 14:02:14 BEARER SERVICE AUDIO

CALLED SUBSCRIBER DETAILS DIRECTORY NUMBER = 02813041000 TERMINAL EQUIPMENT NO = 2-1-1-17-2 CATEGORY = PRI08 CALLED SUBSCRIBER PATH DESCRIPTOR TSS1 IDENTITY = 285 TSS2 IDENTITY = 285 TS IDENTITY = 43B BASE MODULE NUMBER = BM_2 CALLING SUBSCRIBER PATH DESCRIPTOR TSS1 IDENTITY = 285 TSS2 IDENTITY = 285 TS IDENTITY = 43B BASE MODULE NUMBER = BM_1 ORIGINATION TIME = 307EB8A7 DIAL TONE CONNECT TIME = 307RB8A7 FIRST DGT RCV TIME = 307EBB6D LAST DIGIT RECEIVE TIME = 307ED779 TONE CONNECT TIME = FFFFFFFF ANSWER RECEIVED TIME = FFFFFFFF CLEAR FORWARD TIME = FFFFFFFF CLEAR BACKWARD TIME = FFFFFFFF TSS RELEASE TIME 307ED837 CALL STATUS = NU METER_COUNT = 0”

82. At the outset, the said letter dated 13.10.2004 may be noticed. “It is to inform that M/s Reliance is having Basic POI at Karelibaug, Panigate, Alkapuri, Makarpura AT & T, TAX, Padra, Dabhoi and Miyagam exchanges in Vadodara SSA, CDRs and OFCLA observation at these POIs were checked regarding periodical monitoring of incoming traffic to BSNL from private operators. It has been observed that : 1. Check of CDRs of M/s Reliance Infocomm. Ltd. PBSO POIs indicate that there are numerous calls with CLI as “2813041000”. The analysis of observation taken for these calls indicates that CLI has been tampered deliberately by Reliance which is in complete violation of terms and conditions of interconnect agreement. These has been further confirmed from Reliance switch response that the number is unallocated number/number not in use.

2. The calls with similar CLI have been received from the month of Sep-04. Therefore, as per letter no. :F.No. 208- 20/2003-Regln. Dated 28/10/04 we shall charge @ Rs.19.15/- per minute for all incoming calls at all PBSO POI of M/s. Reliance from the month of July, 04 (Rs.19.15/- is the rate for incoming ISD calls at TAX POI of PBSO‟s). 3. This notice is served on you to refrain from this violation of interconnect agreement and if compliance is not received in one week‟s time, the POI at all interconnect point shall be disconnected without any further notice to you.”

83. The Petitioner replied to the said letter on 14.10.2004, stating:- “On the basis of information received from Rajkot BSNL we have already filed an FIR and submitted the same to the Commissioner of Police Rajkot to investigate the case and take appropriate action in accordance with Law (copy enclosed for ready reference). The GMTD Rajkot is aware of FIR and action taken against the party. Sir, we request you to help us and provide the supporting evidence with respect to termination of ISD Calls through sub. No. 0281-3041000, so that the same can be handed over to Police Department. This will not only help Police department to investigate the case, but also save huge loss of revenue to Reliance and BSNL.

We have already informed Sr. DDG Vigilance BSNL HQ New Delhi about this issue, who had also advised us to file an FIR with Police Department.”

84. In its letter dated 15.10.2004, the Respondent raised another contention apart from those which had been raised in its letter dated 13.10.2004, that the number did not exist. 85. It also confined the rate of call at Rs.5.65 paise in stead and in place of Rs.19.15 paise. 86. The Petitioner responded thereto by its letter dated 20.11.2004, stating :- “In this regard, we have already submitted a clarification as per letter no.RIL/02-C/BRD/298 on October 14, 2004 with the copy of Police Complaint against the owner of CLI 0281- 3041000, M/s. Raj Enterprise having its office at 301, Yogi Anand, Kasturba Gandhi Road, Rajkot. In view of above, we once again request you that the said notice and the said bill may kindly be withdrawn immediately. We will be ready to discuss details with you as and when required in this regard.”

87. Keeping in view the fact that the Supreme Court of India has taken note of the aforementioned call records and having regard to the direction issued in para 55 of its judgment, this Tribunal has to take notice of the fact that actually the Respondent did call the number in question on 05.10.2004, 06.10.2004 and 07.10.2004 and obtained the response that “the number does not exist”. 88. There however, being no pleading to that effect, the said documents are not admissible in evidence. We have noticed heretobefore that the specific contention of the Petitioner was that the number had been allocated to M/s. Raj Enterprise. 89. The importance of pleadings vis-à-vis the duty cast upon a court of law to find out the truth has recently been considered in State of Madhya Pradesh vs. Narmada Bachao Andolan and Anr. reported in (2011) 7 SCC 639, Maria Margarida Sequeria Fernandes and Ors. vs. Erasmo Jack de Sequeria (Dead) through LRs reported in 2012 (3) SCALE 550 and A. Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalani Sangam Represented by Its President etc. reported in (2012) 6 SCC 430. 90. The question, as to whether the number was allocated or not, is a disputed question of fact. The Respondent having made a positive assertion and the said evidence being in its power or possession, was bound to plead and prove the same. 91. Apart from the fact that there had been no pleading and no oral evidence to prove the said document has been adduced, no finding of fact with regard to the said calls can be arrived at.

92. Even the provisions of Section 65-B of the Indian Evidence Act has not been complied with, in as much as the said document is not supported by a certificate. Section 65-B(2) and (4) of the Indian Evidence Act reads thus:- “(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: - (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information socontained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. xxx (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

93. In the aforementioned facts and circumstances, we may notice the relevant pleadings of the parties. In its petition, the Petitioner stated :- “12. On 13.10.2004 the BSNL Vadodara Unit sent a letter on the subject of alleged “illegal routing of ISD calls by Reliance through PBSO POI in BSNL”. The Respondent BSNL alleged that they have checked the CDRs at different POIs in Vadodara and the observations of the CDRs revealed that there are numerous calls with CLI as “2813041000”. It was further alleged that the analysis of the observation taken for this calls indicated that “CLI has been tampered deliberately by Reliance” which is in violation of the terms and conditions of the Interconnect Agreement. It was further indicated in the said letter that the said alleged tampering of the CLI is confirmed allegedly “from Reliance Switch Response that the number is unallocated number/the number not in use”. 12.1 It is submitted that the three issues which has been raised in this letter are :- a) CLI has been tampered deliberately by Reliance. b) The Reliance Switch response is that number is unallocated, and c) Number is not in use. 12.2 The Petitioner respectfully submits that all the three issues in the said letter were incorrect, misconceived and without any basis because of the following reasons.”

94. Some reasons were assigned in support thereof, wherewith we are not concerned in this petition. 95. The contention of the Petitioner was that the number in question belong to a subscriber namely, M/s. Raj Enterprise. So far as its being put to use is concerned, it was categorically stated that it was in use till 08.10.2004 on which date it was disconnected. In its reply, the Respondent, however, stated as under :- “It is further submitted that even in the HCD case, where Reliance had admitted that it was tampering with the CLI, when some of the domestic numbers of Reliance from where international calls were being received at the BSNL network were being called, they were getting a response of numbers as non-existent or non-operational. Even in the present case, when this domestic number of Reliance, with the CLI of which international calls were illegally being handed over to the BSNL, was called up, a response of number unallocated or number not in use were received clearly demonstrating as it is also one of those cases as tampering of CLI by Reliance. It is respectfully reiterated that in the strict liability clause imposing an absolute civil liability on the petitioner, the conditions required to be fulfilled under clause 6.4.6 have been fulfilled and where upon the demands had been raised and disconnection notices had been issued by the BSNL.

Undoubtedly, whenever international calls are handed over from the network of any service provider to local POls of BSNL, it is illegal routing and with other circumstances it can also be described as deliberate tampering of CLI. It is respectfully reiterated that even in the HCD case, when the numbers with domestic CLI of Reliance from where the international calls were being received at the BSNL's network, the response on dialing back those CL1 numbers was that either the number is not allocated or number is not in existence. Even in the HCD case, the BSNL network at the POls was receiving the complete domestic CLI even when the calls were incoming international calls. Unless and until there is a deliberate attempt, it is not possible that the international CLI gets converted into a domestic CLI. It is the plea of Reliance that it had allocated the said number to one M/s Raj Enterprises Rajkot. While reiterating the submissions that there is nothing to show that any verification was conducted by the Reliance before allocating such number and that it was not for the BSNL to conduct any investigation regarding any such allocation of number, the fact remains that incoming international calls were being received with this domestic CLI of Reliance and when it was sought to be checked up the recorded announcement from the Reliance switch was received as if the number is not allocated.

This is the similar situation which had existed in the HCD case where Reliance had admitted that it was converting the international calls to calls with domestic CLI. The factual position stated by the BSNL in its letter issued contemporaneously in the year 2004 were entirely on the basis of recorded announcements being received from the Reliance switch and there was no scope for the BSNL to conduct any investigation in relation to the alleged allocation and that number of Reliance to M/s Raj Enterprises as alleged by the petitioner in the petition. It is further submitted that it is in the conditions of the license and also the agreement between the parties that there will not be any tampering of CU and international calls cannot be handed over as domestic calls. It is also an admitted position on record that clause 6.4.6 imposing the liability on the petitioner in this behalf is in operation w.e.f. 14.11.03. The contentions to the contrary are misconceived, incorrect and are denied. All the pleas and contentions to the contrary raised by the petitioner from paras 12 to 12.6 are entirely misconceived, incorrect and are denied and the submissions made hereinabove are respectfully reiterated.” 96. The gist of the aforementioned reply is that the Respondent was not concerned as to whether the number in question was allocated to M/s. Raj Enterprise or not.

No averment whatsoever has been made to the effect that before 08.10.2004 the number was checked and no response had been forthcoming and, thus, the number was an unallocated one. 97. It may, furthermore, be noticed that the Respondent in its subsequent correspondences being dated 24.5.2006 and 29.5.2007, emphasized only on its loss of ADC and asked the Petitioner to collect the amount towards the same from its customer and transfer the proceeds to it. 98. The Respondent, thus, neither in its reply nor in its correspondence, to which our attention has been drawn, raised any contention that the telephone number in question had not been in use. 99. Concedingly, such a contention had also not been raised even in the first round of litigation. In fact, in M.A. No. 190 of 2011, the Respondent stated as under:- “According to the Petitioner, they had disconnected the said number but according to the Respondent, no such disconnection had taken place and, in fact, the said number was being used even after lodging of the First Information Report. From a perusal of the aforementioned letter it would appear that whereas according to the Respondent the CLI had been tampered, but according to the Petitioner there was no basis for such allegations.

However, the disconnection had taken place as on 8.10.2004. In another letter dated 14.10.2004, the Petitioner stated:- “On the basis of information received from Rajkot BSNL we have already filed an FIR and submitted the same to the Commissioner of Police Rajkot to investigate the case and take appropriate action in accordance with law (copy enclosed for ready reference). The GMTD Rajkot is aware of FIR and action taken against the party. Sir, we request you to help us and provide the supporting evidence with respect to termination of ISD Calls through sub. No.0281-3041000, so that the same can be handed over to Police

Department. This will not only help Police department to investigate the case, but also save huge loss of revenue loss of revenue to Reliance and BSNL. We have already informed Sr. DDG Vigilance BSNL HQ New Delhi about this issue, who had also advised us to file an FIR with Police Department.” (emphasis supplied)

100. The aforementioned statements clearly go to show that according to the Respondent, the number in question was in operation even after 08.10.2004, and, thus, the same was not an unallocated one. 101. This Tribunal in its order observed stated :- “It may be true as has been contended by Mr. Maninder Singh that eventually it had not specifically been mentioned that disconnection of the number in question had been effected; but in our view it may not be possible to arrive at the said inference having regard to the overall materials on record. We are, upon reading of the entire fact-sheet, of the opinion and as noticed heretobefore that the telephone of the concerned operator was disconnected. It is not for us to arrive at a conclusion one way or the other. Be that as it may, in view of the order proposed to be passed by us, this question may not be of much significance for the present.”

It can, therefore, be inferred :- (a) That the aforementioned recordings of 05.10.2004 to 07.10.2004 did not form part of the pleadings nor did they form part of the contentions raised by the Respondent in the first round of litigation; (b) It does not appear that any leave had been taken from the Supreme Court of India for adduction of additional evidence; (c) There is nothing on record to show how the said documents were brought on record before the Supreme Court of India in accordance with law so that cognizance thereof would be taken by this Tribunal; 102. The contents of the said document having, thus, not been pleaded and proved in accordance with law, no reliance can be placed thereupon only because they were enclosed with the reply to the application for amendment to the petition. 103. Moreover, all relevant documents which would have a bearing on any material issue between the parties are ordinarily required to be annexed with the reply in terms of the provisions of or analogous to under Order VIII Rule1-A of the Code of Civil Procedure. The Respondent, therefore, cannot be permitted to bring on record through sidedoor some documents, in respect whereof no pleading has been raised nor has been proved.

104. Nothing has also been shown that the Supreme Court of India had passed any order calling for the original records, as contended by Mr. Kohli. 105. Only after the judgment was reserved an application was filed for adduction of oral evidence to prove the said call data record. 106. The said application has been rejected by a separate order. 107. Even on merit of the matter, we may notice that the purported CDR dated 05.10.2007 contains calls for a period of one and a half minute only i.e. 11.37.45 hours to 11.39.16 hours. 108. It is not known as to what had happened to the records maintained at different point of time. 109. It furthermore appears that although names of several exchanges have been mentioned in several letters, the aforementioned calls dated 05.10.2007 were made only from one of the exchanges namely `Miagam‟. 110. The Respondent had similarly filed some records of the `Dabhoi‟ Exchange for 06.10.2007, only again for a period of one and a half minute i.e. from 14.00.36 hrs. to 14.02.14 hrs. 111. It is difficult to appreciate as to why such truncated documents have been filed by the Respondent.

In the aforementioned fact situation it is difficult to ignore the submissions of Mr. Navin Chawla that it is possible that from some other exchanges, the Respondent obtained response when a call was made. 112. The question with regard to the onus of proof must also be judged having regard to the circumstances, in which this petition has been filed. The Respondent contends that it was entitled to a huge amount from the Petitioner by way of ADC. 113. The Petitioner has filed this petition on the threatenings given by the Respondent that its POIs would be disconnected. It is also the positive case of the Respondent that the Petitioner has masked the CLI or tampered with it. 114. The Petitioner, therefore, cannot be expected to prove the negative; the Respondent being in power and possession of the relevant records and also having special knowledge in regard thereto on the basis whereof such contentions have been raised. Moreover, from the very beginning, the Petitioner had categorically been contending, which contentions have not been denied or disputed that in the matter of alleged running of a grey telephone exchange, M/s. Raj Enterprise was involved which, keeping in view the fact that its owner was arrested, cannot be said to be a case relating to a fictitious entity.

115. Up to the year 2007, except in its first two letters issued in October, 2004, the Respondent had been stating that the Petitioner had fully cooperated in the matter of apprehending the culprit and, in fact, it has also lodged a First Information Report. 116. Moreover, the Respondent as also the DoT in their circular letters clearly admitted that the grey exchanges had been in operation. 117. Save and except the said first two letters, the Respondent has for a period of three years, having not alleged any direct involvement on the part of the Petitioner, no presumption can be raised that in this case that it had taken recourse to masking of calls in the Gujarat Circle. Each case has to be considered on its own merit. 118. In the aforementioned situation, we are of the opinion that onus of proof in this regard having regard to the provisions contained in Section 101, 102, 103 and 106 of the Indian Evidence Act, was on the Respondent. It has failed to discharge the same. 119. This Tribunal in Hathway Bhawani Cabletel & Datacom Ltd. vs. Swastik Cable being Petition No. 5 (C) of 2008 disposed of on 18.12.2009, stated the law thus :- “29.

The burden to prove its case having regard to Section 101 of the Evidence Act was on the Petitioner. It has failed to discharge the said onus. In terms of Section 101 of the Evidence Act if the Petitioner has not been able to prove its case, it would not succeed on the weakness of the defence.”

120. For the reasons aforementioned, we are of the opinion that the call data records of 05.10.2004 to 07.10.2004 are inadmissible in evidence having not been brought on record in accordance with law. Application of Clause 6.4.6 121. The Petitioner hereto had been granted licenses for different circles on different dates. 122. On or about 25.01.2002, Clause 6.4.9 was inserted in the BSO agreement, which is in the following terms:- “6.4.9. If BSNL detects that WLL mobile subscribers originated calls are being handed over or have been made over at any port not meant for carrying such calls, BSNL shall be free to charge the BSOs @ Rs.1.14 per metered unit for all the calls recorded on these ports from the date of provisioning of that POI or for the preceding two months whichever is less apart from taking other legal actions including disconnection of POIs or temporary suspension of the Interconnect Agreements.”

123. It, however, appears that the said insertion was not effected in the Gujarat Circle. 124. Clause 6.4.6 was inserted on or about 21.9.2005/28.02.2006, which has been noticed heretobefore. 125. On or about 29.01.2004, a circular letter was issued.

126. The question, which arises for consideration, is as to whether relying on or on the basis of the said circular the impugned bills could have been raised. 127. Submission of Mr. Chawla is that Clause 6.4.6 could not have been given a retrospective effect and retroactive operation from 14.11.2003; Ms. Dhir would contend that not only retrospective effect has been given thereto, it has also been found to be so by this Tribunal in the earlier round of litigation. 128. We may notice the findings of this Tribunal in this behalf so far as the circular letter dated 28.1.2004 issued by the Respondent whereby and whereunder the Clause 11 had been inserted is concerned. 129. A retrospective operation imposing a pecuniary liability on a party by way of punishment, can be given either by way of provision of a statute or by way of contract. 130. In Star India Pvt. Ltd vs. Commissioner of Central Excise, (2005) 7 SCC 203), it was stated :- “7. In any event, it is clear from the language of the validation clause, as quoted by us earlier, that the liability was extended not by way of clarification but by way of amendment to the Finance Act with retrospective effect. It is well established that while it is permissible for the legislature to retrospectively legislate, such retrospectivity is normally not permissible to create an offence retrospectively. There were clearly judgments, decrees or orders of courts and tribunals or other authorities, which were required to be neutralised by the validation clause. We can only assume that the judgments, decrees or orders, etc. had, in fact, held that persons situate like the appellants were not liable as service providers. This is also clear from the Explanation to the validation section which says that no act or acts on the part of any person shall be punishable as an offence which would have been so punishable if the section had not come into force. 8. The liability to pay interest would only arise on default and is really in the nature of a quasi-punishment. Such liability although created retrospectively could not entail the punishment of payment of interest with retrospective effect.”

131. In this case, however, it may not be necessary for us to determine the said question finally for more than one reason. 132. Firstly, because no such specific case has been made out in the petition. Secondly, no ground has been raised that Clause 6.4.6 was not in fact given a retrospective effect or the case of the Petitioner otherwise would come within the purview of the `exceptions‟ contained therein. 133. Mr. Chawla, however, would submit that the question of interpretation of document is a question of law. 134. In a given case, it may be so as has been held by the Supreme Court of India in Sir Chunilal V. Mehta and sons Ltd. vs. Century Spinning and Manufacturing Co. ltd. AIR 1962 SC 1314, but, in this case purported questions of law are linked with questions of fact.

135. If such a stand was to be taken, the same ought to have specifically been raised in this petition. 136. Moreover, the Petitioner‟s application for amendment of Petition having been rejected, we are of the opinion that it should not be permitted to raise such a contention once over again. 137. Clause 6.4.6, moreover, refers to liquidated damages within the meaning of Section 74 of the Indian Contract Act. Quantum of damages may be linked with ADC but stricto sensu it does not mean that ADC is sought to be recovered thereby. 138. Section 74 of the Indian Contract Act provides for pre-estimated damages in case of breach of contract by the operator. In this case a question of associated billing arrangement, which has been provided for in the said clause is involved. 139. Only because Clause 6.4.6 falls within Chapter VI of the Interconnect Agreement dealing with interconnection charges, the same having regard to the decisions of the Supreme Court of India as also the history in regard thereto, which we have noticed heretobefore, cannot stricto sensu be said to be a matter involving interconnection charges. 140. We are moreover of the opinion that judgment of the Supreme Court is to be construed in its entirety and not in isolation.

141. It was also submitted that before the Supreme Court of India, the question of retrospectivity was raised but the same had not been decided. 142. This submission, in our opinion, is not of much consequence, as on the Petitioner‟s own showing, the Supreme Court of India merely interpreted the effect of Clause 6.4.6 namely, whether the same constitutes penalty or genuine pre-estimated damages within the meaning of Section 74 of the Indian Contract Act and not any other issue between the parties. 143. If it is held that Clause 6.4.6, having regard to the decision of the Supreme Court of India in BSNL vs. Reliance Communication Ltd reported in 2011 1 SCC 354, merely provides for a pre-estimated damages, the exclusion clauses contained therein would not be applicable. 144. In absence of any challenge, consideration of the question with regard to the legality and/or validity of the retrospective effect given to the said clause does not arise. 145. The Petitioner in diverse matters had asked for and was granted leave to question the validity of the said provision. But despite the same no plea has been raised by the Petitioner with regard thereto. 146. In this case also no such contention has been raised.

In the event, the Petitioner intended to raise a contention that Clause 6.4.6 is non-est in the eyes of law either by reason of being violative of the provisions of the Constitution of the India or the Indian Contract Act or any other statute for the time being in force including the IUC Regulations framed by the TRAI from time to time, it was obligatory on its part to raise specific grounds in that behalf. If no such ground has been raised in the petition, the same cannot be permitted to be urged. 147. Moreover, if it is held to be a consensual act (we do not see any reason why it should not) on the part of the parties to the contract that they had arrived at an understanding that their past acts would also come within the purview of the amended clause by raising a legal fiction or otherwise, the purported implementation circulars issued by the BSNL on or about 28.1.2004, will have no bearing; Clause 6.4.6 being a bilateral provision and not an unilateral one. 148. Clause 6.4.6 thus, having voluntarily been given a retrospective effect by the parties hereto, the circular letter issued by the Respondent in the interregnum became otiose. The least, thus, could have been done by the Petitioner to raise the contention that he had not given any consent with regard thereto.

149. We, however, think that at the relevant time, the Petitioner also thought that the said circular letter can be given effect to and thus, Clause 6.4.6 would cover the same. 150. Stricto sensu, however, we are not concerned with the thought process of the parties hereto as to why the same had been given a retrospective effect having regard to the fact that it is otherwise permissible in law. 151. We however, agree with Mr. Chawla that the order of this Tribunal dated 18.7.2011 passed in M.A. No.19 of 2011 by itself cannot be treated to be final, so as to attract the doctrine of res-judicata. It cannot also be treated to be a precedent. 152. It was so held by a learned Single Judge of the Bombay High Court in Maharashtra State Cooperative Society Vs. Lalli Brothers reported in 1992 1 BOM CR page 485 (paras 7,8,9) as also by the Patna High Court in Mahadev Mehato Vs. Hiralal 1991 Patna 235 (para 30-31). 153. In State of Assam vs. Barak Upatyaka D.U. Karamchari Sanstha (2009) 5 SCC 694, it was held :- “A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing.”

154. The said principle, in our opinion, cannot be said to have any application, whatsoever, in the instant case as we are not concerned with the said doctrine. 155. Mr. Chawla also relied upon Mehboob Dawood Shaikh vs State of Maharashtra (2004 Supreme Court 2890) wherein it was stated:- “….There is no such thing as a judicial precedent on facts though counsel, and even Judges, are sometimes prone to argue and to act as if they were, said Bose J. about half century back in Willie (William) Slaney vs. The State of Madhya Pradesh (1955 (2) SCR 1140 at page 1169). A decision is available as a precedent only if decides a question of law. A judgment should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court divorced from the context of the question under consideration and treat it to be complete law decided by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. (See Commissioner of Income Tax vs. Sun Engineering Works (P) Ltd. (1992 (4) SCC 363).”

156. Keeping in view our findings that CDRs in respect of the telephone number in question recorded on 05.10.2004 to 07.10.2004 being not admissible in evidence, it has rightly been submitted that the facts noticed in para 5 of the judgment of the Apex Court cannot be treated to be a finding of fact. 157. We have also no hesitation in agreeing with the submissions of Mr. Chawla that no liquidated damages could have been imposed relying on or on the basis of the DoT‟s circular letter dated 23.6.2003; although it is admissible for the purposes specified therein. 158. In the case of Vodafone Essar Vs. BSNL disposed of on 11.10.2010, this Tribunal has held that Clause 11 of the circular letter dated 28.01.2004 would have no application in a case of this nature. 159. Paragraph 11, of the said circular dealt with a situation where a call is terminated without any CLI and does not deal with the case of a tampered CLI. 160. Both of the aforementioned situations had been taken care of only by reason of Clause 6.4.6 of the License Agreement. 161. Moreover, it is now well-settled that the Respondent could not unilaterally lay down a condition while purporting to issue a circular meant for implementation of a direction issued by the TRAI, with which the Respondent is not concerned. Interpretation and/or obligation of Clause 6.4.6.

162. Another aspect of the matter, in a case of this nature, cannot also be lost sight of. It now stands established from the record that the Petitioner herein had granted telephone connection to the said M/s Raj Enterprises only on or about 3.9.2011. If that be so, whether Clause 6.4.6 in a case of this nature can be applied so as to make it liable to pay the IUC including ADC charges for a period of two months by way of damages within the meaning of Section 74 of the Indian Contract Act is the question. 163. The matter might have been different where having regard to the decision of the Supreme Court of India, the owner of the telephone connection have been masking the calls and/or tampering with the CLI for a period of more than two months. We, therefore, are of the opinion that as in this case where the connection in question is less than two months old, the pre-estimated damages cannot extend to charges for two months. 164. For the purpose of interpretation of Addenda VI inserted on 28.2.2006, we may notice the definition of CLI as contained in the DoT‟s license agreement 18.3.1997. It denotes a capability of making calls which can be identified and can be forwarded. It reads as under :- “CLI or Calling Line Identification : means the information generated by the Network Capability which identifies and forwards the calling number through the interconnected BSNL‟s/ UASL‟s Network.”

165. Clause 25.1 defines Calling Line Presentation to mean `A Call Capable of Transmission and Receipt‟, Clause 2.5.2 deals with `Malicious Call Line Identification‟. 166. On the basis of the materials brought on record, therefore, it is necessary to ascertain as to whether the Petitioner could do anything or not to identify non-CLI calls. 167. As indicated heretobefore, the parties hereto had not adduced any technical evidence which in the facts and circumstances of this case, in our considered view, was necessary. 168. In the event, if it be found that M/s Raj Enterprise was solely responsible for the `Malicious Call Line Identification‟ or in other words, only it had been masking the calls without there being any means of knowledge and/ or identification of calls without CLI or tampered CLI in the exchanges of the Petitioner, the said Raj Enterprise must be held to have indulged in a grey market exchange with which the Petitioner may not have any concern. 169. In terms of the circular letter issued by the Respondent and/or DoT, the Petitioner was merely to render co-operation with the Respondent and/or in the Vigilance Cell of DoT.

If it had extended the co-operation which was perceived in the said circular letters, the licensee must be held to have done everything possible for it to do. 170. The Respondent has issued bills in terms of Clauses 2.5.1, 2.5.4 and 6.4.6 of the conditions of the license. 171. If the provisions of Clause 6.4.6 is not attracted having regard to the fact that the Petitioner directly or indirectly cannot be held to be liable therefor and furthermore having regard to the fact that the said M/s Raj Enterprises had started its business from 3.9.2004, no liability of the Petitioner can be said to have been attracted. 172. Sofar as para 11 of the Circular letter dated 20.1.2004 are concerned (even it be assumed to have any application), a bare perusal thereof would clearly go to show that it is circumscribed by a condition that it would be applicable where no CLI was reflected. If a call has not landed in a particular Trunk Group in terms of the said provisions; charges at the rate specified were to be levied for those calls. 173. In this case, however, evidently the number of the telephone was reflected in the POI.

174. Moreover, although, not very relevant for the purpose of this case, it may be mentioned in passing that in terms of the circular letter issued by the DoT, all such calls were to be barred wherefor the Respondent was required to install call barring facility.

175. It may be furthermore noticed that the Regulator also on or about 20.1.2004 held as under :- “(b) In para 9 of the letter it is provided that calls without CLI if any may be rejected by the termination access provider at all POIs other than the POIs meant for termination of international calls. At the same time Para 11 of the letter says that calls received by BSNL without CLI shall be charged at the highest level as for ISD calls. TRAI has already issued a Direction on 24.11.03 to all service providers as to not to tamper with the CLI and not to offer any call without CLI unless it involves CLIR and in case any call is received without CLI, the same may be rejected. As regards ILD calls the Direction calls on the ILOs to insert their code and the code of the country from which the call is coming, in case call is received without CLI. BSNL decision to accept calls without CLI and charging at the highest slab rate is against TRAI Direction. We are separately checking with the operators the implementation of TRAI directions. (d) ...Hence, till CDR based billing is introduced, BSNL should implement reciprocal arrangement in billing as clarified in Authority‟s letter of even No. dated 15th December, 2003. BSNL should also take urgent action to implement CDR based billing in their network.

BSNL had earlier made commitment of CDR based implementation by November, 2003 not only to DOT but also to TRAI in the special session with Service Providers in Hotel Samrat, New Delhi, when IUC implementation was being discussed on 7th April, 2003.” 176. The Respondent submits that the Petitioner has accepted that in respect of Kerala Circle it had resorted to the HCD calls but the same by itself may not mean that it must be held guilty, whenever such non-CLI calls or tampered CLI calls are received, without taking into consideration in fact as to whether the licensee has to be blamed therefor or not and/or whether it had complied with the procedures laid down by the DoT as also the Respondent itself. 177. If the procedures laid down for tracking non-CLI calls and exposing the grey market have been complied with, the requisite consequence laid down therein would ensue and not otherwise. 178. The Tribunal in some of its judgments noticed that sometime due to mechanical failure also non-CLI calls may be found to be terminated at the POI of the BSNL. M.A.190/2011 179. The Miscellaneous Application was filed inter alia praying for stay of the operation of the bill no.114 dated 21.3.2005, bill no 220110 dated 25.1.2010 and the disconnection notice dated 21.6.2011.

We may notice the contents of one of the bills :- “Interest bill for Bill No.114 Date 21/03/05 Pay by Date 15/04/05 regarding wrong routing of ISD calls Interest calculated as per Corporate Office ltr No.352- 4/2005-Regin dtd 23/06/05 and TDSAT Order in Petition No.275/2009 directed to make 65% payment of above said bill No.114 dated 21/03/05 for Rs.9,17,27,716. According M/s Reliance paid Rs.5,96,23,015 on 26/12/09. Interest Bill now raised as per instructions in letter No. NC/UASL-RCL/GENL/2009-10/30 dated 13/01/2010 from AGM (NC) Circle Office Ahmedabad.”

180. By reason of the said bills, demands had been raised for a sum of Rs.6,68,40,666/- towards interest payable at PLR +6.5% i.e. 16.75% for the period 16.4.2005 to 15.5.2005 and @ 24% p.a. for the period 16.5.2005 to 25.12.2009. 181. We may also notice the letter dated 23/30.1.2010 which reads as under :- “Enclosed herewith please find a bill No.220110 dtd. 25/01/10 for Rs.6,68,40,666/- towards interest for delayed payment of 65% amount of our original Bill No.114 dated 21/03/05. Interest has been calculated on Rs.5,96,23,015/- paid by you as per TDSAT Order in Petition No.275/2009.” 182. By reason of an order dated 18.7.2011, this Tribunal directed as under:- “Issue notice on the application. Reply to the application may be filed within one week. Rejoinder thereto, if any, may be filed within three days thereafter. Put up on 4.8.2011 under the same heading. In the meantime, no disconnection to the POIs of the petitioner shall be effected against the impugned demand notice.” 183. The matter was considered by this Tribunal on 12.8.2011, and it was stated as under:- “Learned counsels for the petitioner and the respondent have mentioned that this M.A. may be taken up along with the main matter at the time of hearing. Put up on 1.9.2011 for framing of issues.”

184. It is on the aforementioned premise that this MA had been taken up for hearing alongwith the main matter. 185. Indisputably, the Petitioner deposited 65% of the demanded amount in terms of the interim order passed by this Tribunal on 15.12.2009, whereby it was directed :- “Keeping in view the interim order passed by this Tribunal between the same parties in Petition No.2 of 2008, it is directed that on the petitioner depositing 65% of the demand, which is under challenge in this petition, within two weeks from today, the respondent shall not carry out any disconnection of POIs. This order is being passed without prejudice to the rights and contentions of the parties and such other or any further orders to be passed by this Tribunal including assessment of equities.”

186. While disposing of the main petition, by its order dated 24.5.2010, this Tribunal, while directing the Respondent to give an opportunity of being heard to the Petitioner did not issue any direction for refund of the said amount. 187. The Supreme Court of India in its judgment dated 29.11.2010, also did not issue any direction with regard thereto.

188. When a matter has been pending before this Tribunal, wherein an interim order has been passed, it was expected that before raising any bill and/or taking any coercive measure to realize the amount mentioned therein, leave of the Tribunal would be obtained therefor. 189. The Respondent failed and/or neglected to do so. It would bear repetition to state that this Tribunal had allowed the petition and, thus, ordinarily should have directed refund of the amount. 190. Only because the Supreme Court of India interfered therewith, the same would not mean that the interim order passed by this Tribunal also perished. Even if that be so, the Respondent, having regard to the main matter pending before us this Tribunal, should not have made attempts to overreach it by taking recourse to such coercive measure and demand interest on the principal amount said to be due. 191. Moreover, grant of interest pendente lite and future is discretionary. 192. This Tribunal may not grant the same rate of interest as has been claimed for in the petition in terms of the contract or otherwise.

193. On that ground too, the Respondent should not have raised any bill during pendency of this petition with regard to interest. 194. We, therefore, direct the Respondent not to give effect to the said bills and disconnection notices. 195. For the reasons aforementioned, the petition is allowed. The impugned bills and the disconnection notices are quashed. 196. The Respondent is hereby directed to return to the Petitioner the amount deposited with it in terms of the interim order passed by the Tribunal dated 15.12.2009, with interest at the rate of 12% p.a. from the date (s) of depositing the amount till the actual return thereof. 197. The Respondent shall also bear the costs. Counsel‟s fee assessed at Rs.50,000/-. 198. MA No.190 of 2010 is also allowed.

(S.B. Sinha) Chairperson

October 31, 2012 `ns’