RELIANCE INFOCOMM LIMITED Vs BHARAT SANCHAR NIGAM LIT KOLKATA

ORDER rd By this application the Petitioner has prayed for stay of Notices of disconnection dated 3 th th th January 2008, 15 January 2008, 17 January 2008 and 24 January 2008 issued by respondent whereby respondent had threatened to disconnect the POIs (Points of Interconnection) which are provided by respondent to enable the Petitioner to carry on its telecom service. The notices had allowed 30 days time to the petitioner to make the payment failing which the action was to take rd place. During the pendency of this application payment fell due regarding notices dated 3 th th January 2008, 15 January 2008 and 17 January 2008 and the learned counsel for the petitioner submitted that the petitioner had made the payments without prejudice to its rights and th contentions in order to avoid disconnections. Now only the last bill dated 24 January 2008 remains to be paid. The Respondent has filed a reply contesting the application. According to the respondent, these bills have been raised on the basis of a specific arrangements in pursuance of which undertaking were given by the petitioner to pay such bills of the respondent and therefore, these bills are outside the purview of Interconnect Agreement relied upon by Petitioner.

2. The Petitioner has relied on Clause 7.3.1 (iv) of the Interconnect Agreement in support of its case that these bills are not liable to be paid as they are violative of the said clause. The clause in question is reproduced as under:- “7.3.1. (iv). If the bill issuing authority subsequently finds that some charges have been omitted from the bills issued, he will include the omitted charges in the subsequent bills at any time, but within six months from the date of issue of the relevant bill, except in cases where additional billing becomes necessary due to the tariffs/rates changes notified subsequently with retrospective effect by the appropriate authority”.

Under the said clause, either party to the Interconnect Agreement, is barred from raising any supplementary bill i.e. bill on account of any charges omitted from the bill originally raised, beyond six months from the date of issue of the original bill. The only exception to the said clause is when additional billing becomes necessary due to tariffs/rates changes notified subsequently with retrospective effect by the appropriate authority.

3. According to the learned counsel for the petitioner the bills are beyond the period of six months and, therefore, they are barred under the said clause. It is also submitted that these bills do not fall under the exception to the clause because they are not in pursuance of any notified change in tariffs/rates by an appropriate authority with retrospective effect.

4. In response to these arguments, the learned counsel for the respondent has given some background facts. According to him, the petitioner had been given a Basic Service Operator (BSO) license in the year 2001 and it had entered into an Interconnection Agreement with the th BSNL for basic service on 25 January 2002. Towards the end of 2003, the Petitioner had obtained UAS License for which it had to create infrastructure and other facilities which takes time. The grant of UAS License in favour of petitioner called for separate Interconnection Agreement for handing over Intra-circle/In-roamer calls. Since the petitioner did not have these facilities, it entered into an agreement with the respondent in November 2003 and gave an undertaking on 15.12.2003 whereby it undertook to pay for all the calls handed over by it at the local Points of Interconnections (POIs) of BSNL at agreed rates. A meeting in this respect was th held in the office of TRAI on 28 November 2003. In pursuance of the written arrangements th arrived at on 28 November 2003, the Petitioner gave a written undertaking dated 15.12.2003 on the subject of interim arrangement for handing over of in-roamer calls.

5. According to the Respondent, the bills which are the subject matter of the present application are in pursuance of this undertaking and as per the rate fixed in the undertaking. The case of the respondent further is that this undertaking in writing dated 15.12.2003 was not within the purview of Interconnection Agreement dated 25.1.2002 which was only for basic service operation. The respondent relied on Clause-7 of the BSO Agreement to say that the said agreement was only for purposes of basic service operation. The learned counsel for respondent further argued that after the petitioner was allowed to migrate to UAS License, it could not act as a BSO and therefore, the BSO agreement came to an end. A fresh agreement had to be entered into between the parties on the basis of UAS License of the petitioner which was done in September 2005. Therefore, the argument is that these bills pertain to a period when there was no Interconnect agreement between the parties apart from the arrangement referred to above arrived at in November 2003 which led to the undertaking dated 15.12.2003. The bills in question pertain to this period and being outside the scope of the Interconnect Agreement, reliance on Clause 7.3.1 (iv) by the Petitioner is uncalled for.

6. According to the learned counsel for the petitioner Clause 7.3.1(iv) was always in operation because it was there in the BSO Agreement also and the agreement arrived at between the parties in September 2005 is only an amendment of the original BSO Agreement, therefore it cannot be said that the bills in question were not subject to the said clause.

7. The learned counsel for the petitioner has also referred to some letters issued by the respondent in connection with the impugned bills where they have referred to the said Clause 7.3.1(iv). The argument is that, therefore, the respondent itself was relying on the said clause. Answer to this by the respondent is that this is an inadvertent error and cannot change the substance of the matter.

8. From the arguments advanced by the learned counsel for the parties it prima-facie appears to me that the Department of Telecommunications (DoT) permitted migration to full mobility on 14.11.2003 whereafter petitioner ceased to be a BSO and tried to function as UASL Service provider for provision of fully mobile telephone services. For this, it did not have the necessary infrastructure and therefore, it entered into arrangement with the respondent in November 2003 for providing the requisite mobile services using the numbering scheme of basic services. The petitioner also gave undertaking to the respondent on 15.12.2003 to pay on a rates agreed to between the parties all the bills raised by the respondent. The petitioner has not raised any arguments about the calculations of the amounts in the bills. The argument is confined only to the validity of the bills. Prima-facie it appears to me that the impugned bills are outside the Interconnect agreement between the parties and are as per the mutual arrangement arrived at in November 2003 and the undertaking given by the petitioner on 15.12.2003. Therefore, the prayer for interim stay of the impugned notices is declined and the application is dismissed.

9. I make it clear that this is a prima-facie view taken by me on the controversy for deciding the present application and will be subject to a final determination in the main petition.

................................J Arun Kumar Chairperson