SC dismisses BSNL's appeal against cell phone companies

SC dismisses BSNL's appeal against cell phone companies The Supreme Court on Wednesday dismissed BSNL's appeals seeking to recover revised charges from BPL Mobile, Idea Cellular and others for the resources (infrastructure facilities) provided to them in their respective circles. A bench headed by Justice S B Sinha while upholding the telecom tribunal judgement that came down heavily on BSNL for revising rates unilaterally said: "We do not find that these appeals raise any substantial question of law warranting interference. The appeals are dismissed accordingly." BSNL had sought higher payment for minimum three years for the facilities provided to cell phone service providers BPL Mobile Cellular and Idea Cellular Ltd and email provider CG Faxemail (P) Ltd even if they had surrendered the right before the lapse of three years. Justices S B Sinha, writing the verdict for the bench, said that "prima facie, the proviso appended to Section 9 and Section 10 (the Indian Telegraph Act) providing for a minimum guaranteed period of three years does not appear to have any application. The authorities of DoT also did not think so. They proceeded on the basis of and having regard to the phraseology used in Rules 478 and 496 that minimum period is only three months. According to the court, the resources to be leased out were subject to agreement, terms of which were to be mutually agreed upon. "The respondents (service providers) at no point of time were made known either about the internal circulars or about the letters issued from time to time not only changing the tariff but also the basis thereof," it stated. The bench further noticed "the vacillating stand taken by the appellants (BSNL)" in the case of CG Faxemail. "They sought to charge double the amount as prescribed in the contract on the basis that the service which is being provided by them is close user group service." TDSAT on 17th February, 2003 while quashing the BSNL's order had asked DoT and TRAI to "consider revision of obsolete rules, practices and procedures to make them more in tune with technological and other changes and more user-friendly." Citing some vague circular promulgated by the DoT, BSNL had demanded charges from the private companies for facilitating them to use their networks in their respective circles for three years from 26th November, 1998. "The relevant rules and circulars for those resources clearly prescribed that the minimum period of hire for the said resources is three years and in case any resource is surrendered before the expiry of three years then the applicant shall be liable to pay the entire rental for the three year period," BSNL counsel Maninder Singh argued. The government had set up BSNL and MTNL on 1st October, 2000 as limited companies by transferring the telephone network and other facilities to them for betterment of services to the customers in the country. The cell phone operators having their networks in various states had surrendered the resources leased by them before the expiry of 3 years period, but did not make the payments to the BSNL for the entire period. When the telecommunication sector was opened up in 1998, it was agreed that DoT having the entire telephone network would support the private sector by levying a charge till they to set up their own network. Cell phone operators had argued that they had set up their own cell towers and network in their regions before three years and had surrendered the facilities to BSNL.

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