RELIANCE COMMUNICATION LTD. Vs BHARAT SANCHAR NIGAM LIMITED

By Justice S.K. Singh, Chairperson – The application under consideration has been filed by respondent, Bharat Sanchar Nigam Ltd. (BSNL), under Section 16 of the Telecom Regulatory Authority of India (TRAI) Act, 1997 read with Section 151 of the Code of Civil Procedure, 1908 for taking on record documents and for permission to lead evidence.

2. In order to appreciate the rival contentions it is relevant to note down certain background facts. The petition has been filed by Reliance Communications Ltd. for quashing and setting aside of the bills dated 15/10/2004 and 21/03/2005 as well as disconnection notices dated 05/03/2008 and 02/02/2009. The bills were raised by the respondent on the allegation that the petitioner had tampered the caller line identification (CLI) number of international calls as domestic calls and wrongly routed such calls through the domestic point of interconnection (POI) rather than the designated POIs for handing over international calls. The disconnection notices were on account of petitioner’s failure to pay the bills within the stipulated time. The petition was heard and allowed by this Tribunal by a judgment dated 24/05/2010.

3. That judgment was challenged by the respondent before the Hon’ble Supreme Court in Civil Appeal No.6706 of 2010 – (2011) 1 SCC 394 (Bharat Sanchar Nigam Ltd. Vs. Reliance Communications Ltd.). The Hon’ble Supreme Court vide judgement dated 29/11/2010 disposed of the above said Civil Appeal by holding that clause 6.4.6 of the interconnect agreement read with the addenda, existing between the parties, was in the nature of pre-estimate of damages and not penalty. With the issue of law thus explained, the Supreme Court remitted the matter back to this Tribunal for deciding the matter de novo in accordance with the law laid down. The final conclusion given by the Supreme Court in paragraphs 54 and 55 of the judgement reads as follows:

“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 ready with the addenda. As stated above, we have held that Clause 6.4.6 represents 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.”

4. After the matter was received in remand, this Tribunal dismissed prayer of the petitioner Reliance Communications Ltd. made through MA No. 19 of 2011 for amendment in the petition and after concluding the hearing, reserved judgment on 06/12/2011. Thereafter, the present application was filed by the respondent on 19/12/2011 with the prayers as noticed earlier.

5. It is also relevant to note that after remand by the Hon’ble Supreme Court, before proceeding to hear the petition on merits, on 01/09/2011, this Tribunal recorded an order in following words:

“As it is stated at the Bar that no oral evidence shall be adduced by the parties, no formal issues need be framed. Put up the matter on 10/10/2011 for hearing”.

6. After final hearing, this Tribunal reserved orders in the present application – MA No.324 of 2011 as well as in the main petition (Petition No. 75 of 2009). The matters were heard by a Bench consisting of the then Hon’ble Chairperson Justice S.B. Sinha and the then Hon’ble Member Mr. P.K. Rastogi. They delivered separate orders on 31/10/2012. The Hon’ble Chairperson dismissed the prayer made in this application whereas the Hon’ble Member allowed the application. In view of such conflict of opinion, no judgement was delivered by the Hon’ble Member in the main petition (Petition No. 275 of 2009), however, the Hon’ble Chairperson alone allowed the petition.

7. The law is well-settled that when a matter is heard by a Division Bench, in case of difference of opinion between the two members, the matter has to be heard again by a larger Bench. Only a majority decision can be treated as a judgement having force of law. This conclusion also flows from Section 14K of the Telecom Regulatory Authority of India Act, 1997. The rival parties have also not advanced any other view and hence, it can be safely said that the judgment dated 31/10/2012 in the main petition (Petition No.275 of 2009) rendered by the then Hon’ble Chairperson singly cannot have any legal force. The petition has to be reheard for a fresh decision. The manner of rehearing is, of course, dependent upon the outcome of MA No.324 of 2011. If the prayer of the respondent/applicant is allowed, additional evidence will be led by the respondent as per its prayer. Only thereafter, the main petition will be reheard for fresh decision. But in case the MA is dismissed, the main petition will be reheard for decision on the basis of evidence already existing on the record.

8. A careful perusal of the order of the then Hon’ble Chairperson whereby he dismissed MA No. 324 of 2011 discloses that the dismissal of the application is largely on account of technicalities and delay in making such a prayer. No doubt the documents were in possession of the respondent/applicant from the very beginning. Admittedly, those documents were brought on record in reply to MA No.19 of 2011. After the direction by the Supreme Court for de novo trial of the relevant factual issue, the respondent/ applicant could have chosen to prove the documents after bringing them on record as part of their reply but that was not done. Instead, the learned counsel for the respondent made a statement on 01/09/2011 that no oral/documentary evidence is required to be led in the matter. The respondent has clearly suffered on account of inadvertence/oversight on the part of its advocate. After highlighting these aspects, it was held by the then Hon’ble Chairperson in para 65 of his order that the present application had been filed by way of an afterthought and only to fill up the lacuna.

9. On the other hand, in his dissenting order, the then Hon’ble Member noted that as per Supreme Court judgement of remand, the Tribunal was required to decide the matter de novo including the factual aspect whether the No. 0281- 3041000 was an unallocated number. Hence, there was a duty on both the parties to bring this aspect to the notice of the Tribunal for doing the needful so that the directions could be complied with. It was also noticed that in its reply, the respondent had filed copies of the call detail reports (CDRs) for 05/10/2004 and 06/10/2004. Since the MA No. 19 of 2011 was dismissed, these records filed by the respondent remained with that MA and did not become part of the main petition.

10. Learned Member proceeded to hold that there was an omission or error on the part of the counsel of the respondent in urging that there was no need to lead any evidence. It was further held that the parties should not suffer due to omission on the part of the counsel. It was noticed that soon after the order dated 01/09/2010, the respondent had changed its counsel. Lastly, it was held by the Learned Member that the Tribunal had the power to permit the production of the particular piece of evidence which was relevant and necessary in the interest of justice and more so when the Supreme Court had directed to determine the related factual aspect.

11. After hearing both the parties and after giving anxious consideration to rival contentions, in the facts of the case, we find ourselves in agreement with the views expressed by the then Hon’ble Member Mr. P.K. Rastogi in allowing the prayer made in MA No.324 of 2011.

12. In support of the view that we have decided to take in this matter, it is useful to highlight the fact that the legislature, while laying down the procedure and powers of this Tribunal vide Section 16 of the Telecom Regulatory Authority of India Act 1997, has specifically provided that the Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure. It shall be guided by the principles of natural justice and can regulate its own procedure. Generally the proceedings are required to be of summary nature as the Tribunal has been authorized and empowered to receive evidence on affidavits. No doubt, where it is deemed necessary or in the interest of justice, it can allow examination of witnesses or documents. While conferring the right to legal representation under Section 17 of the aforesaid Act, the legislature has permitted a party to either appear in person or authorize representation through Chartered Accountant or Company Secretary or Cost Accountant or any of its officers. In such a situation, interest of justice would require this Tribunal to avoid taking extreme technical approach in matters such as recording of evidence, unless it is absolutely necessary to protect interest of justice.

13. Learned counsel for the respondent/applicant has placed reliance upon the following judgements of the Apex Court in support of a proposition of law that parties should not suffer for lapses on the part of their counsel. The judgments are:

1. (1981) 2 SCC 788 (Rafiq & Anr. Vs Munshilal & Anr); 2. 1984 (Supp) SCC 431 (Smt. Lachi Tewari & Ors. Vs. Director of Land Records & Ors.); 3. (2016) 14 SCC 514 (Lakhi Narayan Sonowal Vs. State of Assam & Anr.); and 4. (2000) 9 SCC 733 (Radha Krishna Rai Vs. Allahabad Bank & Ors)

14. While agreeing with the principle of law advanced above which is supported by the cited judgements, by way of caution we highlight the observations in paragraph 5 of the judgement in the case of Lakhi Narayan Sonowal Vs. State of Assam & Anr. (2016) 14 SCC 514 that – “……where no fault lies at the door of the litigant, the court should not be in a hurry to dismiss the case in default or for non-prosecution on account of absence of his counsel.” (emphasis supplied)

15. For the same proposition of law the respondents have placed reliance upon the following three judgments:–

1. (1993) 2 SCC 185 (Salil Dutta Vs. TM and MC Private Ltd.); 2. (2013) 10 SCC 308 (Himachal Pradesh ST Employees Federation & Anr. Vs. Himachal Pradesh Samanya Varg Karmchari Kalyan Mahasangh & Ors.); and 3. (1997) 5SCC 476 (Dhanna Singh & Ors. Vs. Baljinder Kaur & Ors.)

16. While the first judgment noted above, as evident from paragraph 8 thereof, supports the proposition of law advanced on behalf of the respondent/applicant, the second judgment merely highlights the heavy duties on the shoulders of a counsel as an officer of the court. The last judgement is clearly distinguishable because in that case the court found that the subsequent purchaser does not get any right to lead evidence because it had stepped into the shoes of the first defendant who had given up the right to lead evidence.

17. As already indicated earlier, we are persuaded to allow the prayer made in MA No. 324 of 2011. The application is allowed subject to the condition of payment of cost of Rs.50,000/- by the applicant as already ordered by the then Hon’ble Member Mr. P.K. Rastogi. The documents filed by the applicant along with this application are permitted to be taken on record and the respondent is allowed to prove them by leading oral evidence in the larger interest of justice. The cost, if not already paid, shall be payable within two weeks from today.

18. It goes without saying that the other side, i.e. the petitioner, shall have a right to cross-examine the witness. This exercise should be completed at an early date preferably within six weeks. For that purpose, the matter shall be put up before the Court of Registrar within two weeks. After the additional evidence is recorded, the main petition itself should be placed for final hearing within two months from today.

.........……………… (S.K. Singh, J) Chairperson

.........……………… (B.B. Srivastava) Member

.........……………… (A.K. Bhargava) Member sks