M/S Reliance Infocomm Limited Versus Bharat Sanchar Nigam Limited - Court Judgment

SooperKanoon Citationsooperkanoon.com/941522
CourtTelecom Disputes Settlement and Appellate Tribunal TDSAT
Decided OnMay-05-2009
Case NumberPETITION NO.224 OF 2006
JudgeARUN KUMAR CHAIRPERSON, HONOURABLE DR. J. S. SARMA MEMBER & HONOURABLE MR. G.D. GAIHA MEMBER
Advocates:FOR THE PETITIONERS: J.J. BHATT, SENIOR ADVOCATE WITH, MANALI SINGHAL, ANJALI CHANDRUKAR, SANTOSH SACHIN, ADVOCATES. FOR THE RESPONDENT: MANINDER SINGH, YOGINDER HANDOO, KUNAL SOOD, ADVOCATES.
Excerpt:
in this case, the petitioner is challenging the circulars dated 12.6.2006 and 24.7.2007 issued by the respondent – bsnl - claiming that these circulars have the effect of unilaterally modifying certain clauses of the existing interconnect agreements entered into between the two parties, prior to the date of the circulars. 2. the case of the petitioner is that, as basic service operator, it had entered into an interconnect agreement with the respondent on 25.1.2002 for various circles which agreements cover various issues of interconnection including, inter alia, raising of bills on each other for interconnect usage charges and payments and process for reconciliation of any differences over bills. the grievance of the petitioner is that the respondent had, allegedly unilaterally, issued two circulars dated 12.6.2006 and 24.7.2006 modifying, to the disadvantage of the petitioner, the methodology for settlement of disputes in the event of differences in the amounts billed by the respondent. 3. disagreeing with the contentions of the petitioner, the respondent stated that after 21.9.2005 the respondent had signed 121 interconnect agreements with various operators of which 6 interconnect agreements were with the petitioner and that clause 7.6.0 in these agreements was unambiguous whereas some of the agreements entered into with the petitioner on 21.9.2005, contained clause 7.6.0 which has been incorrectly recorded on account of a bonafide and inadvertent typographical error. insofar as the circular dated 24.7.2006 is concerned, the respondent stated that clause 7.6.3 of the agreements with the various service providers including the petitioner stated that the basic service operator (bso) will settle the dispute in consultation with the designated authority of the respondent. the case of the respondent is that it being a government service provider, it had to rely on its own data and records and not that of the records of the basic service operator. its case is that other private service providers had agreed to the applicability of this provision. it is also contended that the circular dated 24.7.2006 was for the benefit of private service operators, as otherwise the process of making available the points of interconnection would get delayed. 4. the matter having come up for hearing on 30.4.2008, we have heard counsels for both the parties. the learned senior counsel for petitioner, mr. j.j. bhatt, argued that it is incorrect on the part of the respondent to have amended the agreement by way of circulars. he drew our attention to the relevant clauses in the agreements which were signed on 25.1.2002 and stated that these were in operation till suddenly the respondent unilaterally modified the clause 7.6 by replacing it with another clause by way of the circular dated 12.6.2006. according to him, even if there is an understanding between the two parties regarding amendment to the method of resolution of disputes, it can only be incorporated in the agreements to be signed thereafter but the agreements already signed cannot be unilaterally amended by the respondent by way of a circular. if at all, it has at least to be in the form of an amendment to be signed by the two parties, which action too can only have prospective effect and not retrospective effect. 5. the learned counsel for respondent, mr. maninder singh, argued that the issue of the impugned circular was not a unilateral move by the respondent but was an action taken in pursuance of a letter dated 25.3.2006 from the petitioner wherein and it requested for requisite clarification to be issued by bsnl to its field units, in respect of variation in the amount of bills, so as to facilitate finalisation of billing amounts. it was in the light of this that the circular dated 12.6.2006 was issued and, therefore, the respondent’s action cannot be termed as unilateral. he also stated that two circulars only sought to bring the agreements signed on 21.9.2005 at par with those signed after 21.9.2005. as regards the circular dated 24.7.2006 is concerned, the counsel stated that being a public sector undertaking, it had to go by its own records and cannot have reference to the records of any other company. besides, he stated that the arrangement given in the circular would benefit the private operators as they do not have to spend time to synchronise their equipment with that of bsnl leading to faster operationalisation of the points of interconnection. 6. we have carefully considered the contentions and arguments of both the parties. the issue really relates to whether the circulars dated 12.6.2006 and 24.7.2006 can have application to the agreements signed, between both the parties, anterior to this date. in order to deal with this issue, it is necessary to quote, in extenso, the provisions of clause 7.6 in the agreement dated 25.1.2002 for different circles (a copy of karnataka circle was annexed along with the petition affidavit and is admitted) as well as the letter dated 12.6.2006, which read as follows :- clause 7.6 of the agreement dated 25.1.2002 “7.6 settlement of disputes regarding wrong/excess billing : 7.6.1 in the event the bso disputes the accuracy of a bill delivered by the bsnl pursuant to this agreement, it will, as soon as practicable, but in any case before the pay-by-date notify the billing liaison contact of the bsnl of the nature and extent of the dispute along with all details reasonably necessary to substantiate its claim, which shall be reasonably capable of being verified by the bsnl. 7.6.2. in case of calculation or clerical error in the bill, the bill issuing authority after verifying the bill, if it finds the errors genuine, will correct the relevant bill accordingly within three days of the receipt of the complaint. 7.6.3 in cases other than those referred in clause 7.6.2, bso shall immediately obtain a provisional bill from bsnl before the pay by date of the original bill on the basis of the number of call units of the previous month. the provisional bill shall be paid by the bso before the pay by date indicated in the provisional bill. thereafter, within 7 days of the issue of the provisional bill, the bso shall approach the designated authority of bsnl along with all his relevant records based on which the bso disputes the bill issued by bsnl. the bso shall, in consultation with the designated authority of bsnl, settle the dispute within 15 days of the issue of the provisional bill referred this clause. in this consultation, the records made by the measurement devices located at the bsnl interface point shall have precedence over the records of the bso. if after consultation, it is found that the bill issued by bsnl is correct, the balance amount of the bill, which was kept under dispute after the issue of the provisional bill, will also have to be paid by the bso within 7 days of the settlement of such dispute. 7.6.4 after the settlement of the dispute, if balance of the due payment is not made within the period referred to in clause 7.6.3, the bsnl shall discontinue the use of its facilities by the bso immediately on occurrence of this default. restoration of the facility will be made only on clearance of the dues payable by the bso. the bso shall also take action to open irrevocable bank guarantee in favor of bsnl as per clause 7.4.1 of the inter connect agreement in the event of such a default. 7.6.5 (i) notwithstanding provided hereinabove, if the dispute over the accuracy of the bill fails to be resolved, in the manner already provided, the dispute shall be referred to the cmd bsnl, as an expert and not as an arbitrator, for resolution of the dispute. the decision of the cmd bsnl shall be final and binding. (ii) each party shall continue to fulfill its obligations under the interconnect agreement during the pendency of dispute and while dispute resolution process invoked under sub para (i) above except that bsnl shall not be obliged to continue to provide and / or restore the interconnect services when all payments are not made by the bso. (iii) any party shall not use any information obtained from other party during the course of dispute resolution process under this clause for any purpose other than to resolve the dispute and such information shall not be used in any litigation.” circular dated 12.6.2006 of bsnl “bharat sanchar nigam limited (a government of india enterprise) registration cell, corporate office, 611b, statesman house, b-148, barakhamba road, new delhi-1. no. 352-4/2005-regin. dated 12th june, 2006 to all chief general managers, bsnl, telecom circles/metro districts/maintenance regions subject : reconciliation of iuc bills. some private operators like m/s reliance infocomm ltd. (ril) have represented to this office that they are facing difficulties in some service areas for resolving the disputes where there is variation between bills raised by bsnl and private telecom operator and have requested to clarify the relevant sub-clause under clause 7.6 of interconnect agreement. 2. in this regard, it is intimated that the relevant sub-clause under clause 7.6 in most of the interconnect agreements signed by private telecom operators with bsnl provides complete clarity in dealing with issues related to variation in bills raised by bsnl and private telecom operators. however, in only some of the interconnect agreements for some service areas, the relevant sub-clause under clause 7.6 does not fully clarify this issue related to variation in bills. for the sake of uniformity among all private telecom operators, it is clarified that the settlement of disputes regarding wrong/excess billing where there is variation between bills raised by bsnl and any private telecom licensed operator the relevant sub-clause under clause 7.6 of the interconnect agreement shall be read as : “the bills issued by bsnl, based on bulk record shall be final. in case of difference up to 0.25%+/- with the billing record of uasl, the amount billed by bsnl, shall be treated as final. if the difference is more than +/- 0.25% but upto +/- 2%, payment shall be made by uasl. however, reconciliation of variance shall be carried out by both parties and will be subject to dispute resolution mechanism. variance beyond this limit also shall be subject to dispute resolution mechanism as specified in the interconnect agreement. however, uasl shall pay to bsnl the undisputed amount plus 50% of the disputed amount subject to a minimum of an amount equal to previous month’s billed amount immediately”. sd/- (mahipal singh) joint ddg (regulation-i) copy to : 1. all bsos/cmsps/uasls/nldos/ildos. 2. sr. ddg(ms)/ddg(nm)/ddg(comml)/ddg(tandc)/ddg(trf), bsnl.” 7. the case of the respondent is that the amended clause 7.6 corresponds to 7.6.0 of the earlier agreements and that the difference is only on account of inadvertent typographical error. he tried to demonstrate this by comparing the two clauses as follows :- “correct clause 7.6.0 (or the same provision in certain agreements described as 7.6.1) ambiguous clause 7.6.0 on account of inadvertent typographical error the bills issued by bsnl based on bulk record shall be final. in case of difference up to 0.25% +/- with the billing record of uasl, the amount billed by bsnl shall be treated as final. if the difference is more than +/- 0.25% but also +/- 2%, payment shall be made by uasl. however, reconciliation of variance shall be carried out by both parties and will be subject to dispute resolution mechanism. variance beyond this limit also shall be subject to dispute resolution mechanism as specified in the interconnect agreement. however, uasl shall pay to bsnl the undisputed amount plus 50% of the disputed amount subject to a minimum of an amount equal to previous month’s billed amount immediately. the bills issued by bsnl based on bulk record shall be final. in case of difference up to 0.25% +/- with the billing record of uasl, the amount billed by bsnl shall be treated as final. if the difference is more than +/- 0.25% but also +/- 2%, payment shall be made by uasl. however, reconciliation of variance shall be carried out by both parties and will be subject to dispute resolution mechanism. variance beyond this limit also shall be subject to dispute resolution mechanism / given below under sub clauses 7.6.1 to 7.6.5. as specified in the interconnect agreement. however, uasl shall pay to bsnl the undisputed amount plus 50% of the disputed amount subject to a minimum of an amount equal to previous month’s billed amount immediately.” the counsel pointed out that the highlighted portion in the left column above has been inadvertently omitted in the agreement signed on 21.9.2005 and the purpose of the circular dated 12.6.2006 was only to set right the same. likewise, the highlighted portion in the right column above was inadvertently included and was to be deleted. 8. as mentioned in para 5 above, the case of the respondent is that the intention was to bring the agreement signed on 21.9.2005 at par with the interconnection agreements signed after 21.9.2005. but we find that in this case, we are dealing with agreement dated 25.1.2002 where even the modality of reconciliation of the difference in bill amount is entirely different. the clauses 7.6.1. to 7.6.5 read very differently from the clause 7.6.0 in the agreement of 21.9.2005. as such, the letter/circular dated 12.6.2006 is not a simple case of carrying out some corrections resulting from inadvertent typographical error but changing the very manner of reconciliation of the difference in bill amount. 9. as regards the circular dated 24.7.2006, it reads as follows :- “bharat sanchar nigam limited (a government of india enterprise) 611b, statesman house, b-148, barakhamba road, connaught place, new delhi-1. no. 203-3/2003-regin.(pt) dated 24th july, 2006 to all chief general managers, bsnl, telecom circles/metro districts/maintenance regions/tandd circle subject : difference in call duration in cdrs of bsnl exchange and private operators exchanges. some field units of bsnl have sought clarifications / guidelines to deal with such cases wherein during acceptance testing of poi of private operators, difference in call duration is noticed in cdrs of bsnl exchange and private operator’s exchange by the acceptance testing team. 2. in this regard, it is clarified that in such cases wherein difference in call duration is observed in cdrs of bsnl exchange and private operator exchanges by the acceptance testing team during testing of poi, the billing information as per bsnl cdrs should be treated as final and private operators should be charge accordingly. further, an undertaking to this effect should be taken from concerned private operator before commissioning of poi. in case there is billing variation after commissioning of pois, then also the bills as per bsnl’s cdrs need to be taken as final. sd/- (sanjeev banzal) joint ddg (regulation-iii) copy to : ddg(ms)/ddg(nm)/ddg(comml)/ddg(tandc)/ddg(trf)/ddg(ia), bsnl, corporate office, new delhi.” 10. the effect of the above circular is that the bsnl’s records shall be treated as final. as can be seen, provisions of this circular are very different from the provisions of clause 7.6.3 of the agreement dated 25.1.2002 extracted in para 6 above. the argument of the counsel for respondent is that this has been issued since bsnl being a government service provider cannot rely upon any data and records other than its own so as to ensure that there is no loss to the public exchequer. he has also stated that the clarification issued in the circular would also be useful to the private operators in as much as they do not have to spend valuable time on synchronizing their own equipment with that of the bsnl and also can save on the time required for establishing the points of interconnection. we are unable to agree with this contention of the counsel for respondent. firstly, bsnl is a public sector undertaking and is as much bound by agreements signed as any other commercial undertaking. there is no concept of a government service provider. secondly, the argument that it is for the benefit of private operators is also not tenable. if parties have to depend only on the data and records of the bsnl, it is all the more reason why they should synchronise their equipment accurately with that of bsnl. thirdly, there is also no evidence that there is either request from or an agreement with the private operators, let alone the petitioner on this aspect. 11. the contention of the respondent is that these circulars have been issued pursuant to a request by the petitioner for clarification and that these have been issued after an agreement has been arrived at. we do not find any support for this argument. in any case, we do not wish to get into the correctness or otherwise of issuing clarification. even if a clarification has been issued pursuant to an understanding, it can only serve as a basis for agreements posterior to the date of such understanding. any application of such understanding, even if it is mutual, will have to be signed by both the parties as addendum to the agreement if it has to apply to existing agreements. written agreement is supreme and can only be altered by another agreement signed between both the parties, as an addendum to the earlier agreement. agreements cannot be amended by either party by issuing circulars to their field offices. in this case, we notice that copies of these circulars were not even marked to the petitioner even though the first circular refers to a representation from the petitioner. 12. we accordingly hold that the circulars dated 12.6.2006 and 24.7.2006issueud by the respondent will have no application whatsoever to any agreement unless it has been specifically agreed between the parties that the agreements entered into prior to the date of these circulars are to be amended suitably. 13. the petition is disposed of accordingly. no costs.
Judgment:

In this case, the Petitioner is challenging the Circulars dated 12.6.2006 and 24.7.2007 issued by the Respondent – BSNL - claiming that these Circulars have the effect of unilaterally modifying certain clauses of the existing interconnect Agreements entered into between the two parties, prior to the date of the Circulars.

2. The case of the Petitioner is that, as Basic Service Operator, it had entered into an interconnect Agreement with the Respondent on 25.1.2002 for various Circles which Agreements cover various issues of interconnection including, inter alia, raising of bills on each other for interconnect usage charges and payments and process for reconciliation of any differences over bills. The grievance of the Petitioner is that the Respondent had, allegedly unilaterally, issued two Circulars dated 12.6.2006 and 24.7.2006 modifying, to the disadvantage of the Petitioner, the methodology for settlement of disputes in the event of differences in the amounts billed by the Respondent.

3. Disagreeing with the contentions of the Petitioner, the Respondent stated that after 21.9.2005 the Respondent had signed 121 interconnect Agreements with various operators of which 6 interconnect Agreements were with the Petitioner and that Clause 7.6.0 in these Agreements was unambiguous whereas some of the Agreements entered into with the Petitioner on 21.9.2005, contained Clause 7.6.0 which has been incorrectly recorded on account of a bonafide and inadvertent typographical error. Insofar as the Circular dated 24.7.2006 is concerned, the Respondent stated that Clause 7.6.3 of the Agreements with the various service providers including the Petitioner stated that the Basic Service Operator (BSO) will settle the dispute in consultation with the designated authority of the Respondent. The case of the Respondent is that it being a Government service provider, it had to rely on its own data and records and not that of the records of the Basic Service Operator. Its case is that other private service providers had agreed to the applicability of this provision. It is also contended that the Circular dated 24.7.2006 was for the benefit of private service operators, as otherwise the process of making available the points of interconnection would get delayed.

4. The matter having come up for hearing on 30.4.2008, we have heard counsels for both the parties. The learned senior counsel for Petitioner, Mr. J.J. Bhatt, argued that it is incorrect on the part of the Respondent to have amended the Agreement by way of Circulars. He drew our attention to the relevant clauses in the Agreements which were signed on 25.1.2002 and stated that these were in operation till suddenly the Respondent unilaterally modified the clause 7.6 by replacing it with another clause by way of the Circular dated 12.6.2006. According to him, even if there is an understanding between the two parties regarding amendment to the method of resolution of disputes, it can only be incorporated in the Agreements to be signed thereafter but the Agreements already signed cannot be unilaterally amended by the Respondent by way of a Circular. If at all, it has at least to be in the form of an amendment to be signed by the two parties, which action too can only have prospective effect and not retrospective effect.

5. The learned counsel for Respondent, Mr. Maninder Singh, argued that the issue of the impugned Circular was not a unilateral move by the Respondent but was an action taken in pursuance of a letter dated 25.3.2006 from the Petitioner wherein and it requested for requisite clarification to be issued by BSNL to its field units, in respect of variation in the amount of bills, so as to facilitate finalisation of billing amounts. It was in the light of this that the Circular dated 12.6.2006 was issued and, therefore, the Respondent’s action cannot be termed as unilateral. He also stated that two Circulars only sought to bring the Agreements signed on 21.9.2005 at par with those signed after 21.9.2005. As regards the Circular dated 24.7.2006 is concerned, the counsel stated that being a Public Sector Undertaking, it had to go by its own records and cannot have reference to the records of any other company. Besides, he stated that the arrangement given in the Circular would benefit the private operators as they do not have to spend time to synchronise their equipment with that of BSNL leading to faster operationalisation of the points of interconnection.

6. We have carefully considered the contentions and arguments of both the parties. The issue really relates to whether the Circulars dated 12.6.2006 and 24.7.2006 can have application to the Agreements signed, between both the parties, anterior to this date. In order to deal with this issue, it is necessary to quote, in extenso, the provisions of Clause 7.6 in the Agreement dated 25.1.2002 for different Circles (a copy of Karnataka Circle was annexed along with the Petition affidavit and is admitted) as well as the letter dated 12.6.2006, which read as follows :-

Clause 7.6 of the Agreement dated 25.1.2002

“7.6 SETTLEMENT OF DISPUTES REGARDING WRONG/EXCESS BILLING :

7.6.1 In the event the BSO disputes the accuracy of a bill delivered by the BSNL pursuant to this Agreement, it will, as soon as practicable, but in any case before the pay-by-date notify the billing liaison contact of the BSNL of the nature and extent of the dispute along with all details reasonably necessary to substantiate its claim, which shall be reasonably capable of being verified by the BSNL.

7.6.2. In case of calculation or clerical error in the bill, the bill issuing authority after verifying the bill, if it finds the errors genuine, will correct the relevant bill accordingly within three days of the receipt of the complaint.

7.6.3 In cases other than those referred in clause 7.6.2, BSO shall immediately obtain a provisional bill from BSNL before the pay by date of the original bill on the basis of the number of call units of the previous month. The provisional bill shall be paid by the BSO before the pay by date indicated in the provisional bill. Thereafter, within 7 days of the issue of the provisional bill, the BSO shall approach the designated authority of BSNL along with all his relevant records based on which the BSO disputes the bill issued by BSNL. The BSO shall, in consultation with the designated authority of BSNL, settle the dispute within 15 days of the issue of the provisional bill referred this clause. In this consultation, the records made by the measurement devices located at the BSNL interface point shall have precedence over the records of the BSO. If after consultation, it is found that the bill issued by BSNL is correct, the balance amount of the bill, which was kept under dispute after the issue of the provisional bill, will also have to be paid by the BSO within 7 days of the settlement of such dispute.

7.6.4 After the settlement of the dispute, if balance of the due payment is not made within the period referred to in clause 7.6.3, the BSNL shall discontinue the use of its facilities by the BSO immediately on occurrence of this default. Restoration of the facility will be made only on clearance of the dues payable by the BSO. The BSO shall also take action to open irrevocable Bank Guarantee in favor of BSNL as per clause 7.4.1 of the Inter Connect Agreement in the event of such a default.

7.6.5 (i) Notwithstanding provided hereinabove, if the dispute over the accuracy of the bill fails to be resolved, in the manner already provided, the dispute shall be referred to the CMD BSNL, as an expert and not as an arbitrator, for resolution of the dispute. The decision of the CMD BSNL shall be final and binding.

(ii) Each party shall continue to fulfill its obligations under the Interconnect Agreement during the pendency of dispute and while dispute resolution process invoked under sub para (i) above except that BSNL shall not be obliged to continue to provide and / or restore the interconnect services when all payments are not made by the BSO.

(iii) Any party shall not use any information obtained from other party during the course of dispute resolution process under this clause for any purpose other than to resolve the dispute and such information shall not be used in any litigation.”

Circular dated 12.6.2006 of BSNL

“Bharat Sanchar Nigam Limited

(A Government of India Enterprise)

Registration Cell, Corporate Office,

611B, Statesman House, B-148, Barakhamba Road, New Delhi-1.

No. 352-4/2005-Regin. Dated 12th June, 2006

To

All Chief General Managers,

BSNL, Telecom Circles/Metro Districts/Maintenance Regions

Subject : Reconciliation of IUC Bills.

Some private operators like M/s Reliance Infocomm Ltd. (RIL) have represented to this office that they are facing difficulties in some service areas for resolving the disputes where there is variation between bills raised by BSNL and private telecom operator and have requested to clarify the relevant sub-clause under Clause 7.6 of Interconnect Agreement.

2. In this regard, it is intimated that the relevant sub-clause under Clause 7.6 in most of the Interconnect Agreements signed by private telecom operators with BSNL provides complete clarity in dealing with issues related to variation in bills raised by BSNL and private telecom operators. However, in only some of the Interconnect Agreements for some service areas, the relevant sub-clause under Clause 7.6 does not fully clarify this issue related to variation in bills. For the sake of uniformity among all private telecom operators, it is clarified that the settlement of disputes regarding wrong/excess billing where there is variation between bills raised by BSNL and any private telecom licensed operator the relevant sub-clause under Clause 7.6 of the Interconnect Agreement shall be read as :

“The bills issued by BSNL, based on bulk record shall be final. In case of difference up to 0.25%+/- with the billing record of UASL, the amount billed by BSNL, shall be treated as final. If the difference is more than +/- 0.25% but upto +/- 2%, payment shall be made by UASL. However, reconciliation of variance shall be carried out by both parties and will be subject to dispute resolution mechanism. Variance beyond this limit also shall be subject to dispute resolution mechanism as specified in the interconnect Agreement. However, UASL shall pay to BSNL the undisputed amount plus 50% of the disputed amount subject to a minimum of an amount equal to previous month’s billed amount immediately”.

Sd/-

(Mahipal Singh)

Joint DDG (Regulation-I)

Copy to :

1. All BSOs/CMSPs/UASLs/NLDOs/ILDOs.

2. Sr. DDG(MS)/DDG(NM)/DDG(Comml)/DDG(TandC)/DDG(TRF), BSNL.”

7. The case of the Respondent is that the amended Clause 7.6 corresponds to 7.6.0 of the earlier Agreements and that the difference is only on account of inadvertent typographical error. He tried to demonstrate this by comparing the two Clauses as follows :-

“CORRECT CLAUSE 7.6.0

(OR THE SAME PROVISION IN CERTAIN AGREEMENTS DESCRIBED AS 7.6.1)

AMBIGUOUS CLAUSE 7.6.0 ON ACCOUNT OF INADVERTENT TYPOGRAPHICAL ERROR

The bills issued by BSNL based on bulk record shall be final. In case of difference up to 0.25% +/- with the billing record of UASL, the amount billed by BSNL shall be treated as final. If the difference is more than +/- 0.25% but also +/- 2%, payment shall be made by UASL. However, reconciliation of variance shall be carried out by both parties and will be subject to dispute resolution mechanism. Variance beyond this limit also shall be subject to dispute resolution mechanism as specified in the Interconnect Agreement. However, UASL shall pay to BSNL the undisputed amount plus 50% of the disputed amount subject to a minimum of an amount equal to previous month’s billed amount immediately.

The bills issued by BSNL based on bulk record shall be final. In case of difference up to 0.25% +/- with the billing record of UASL, the amount billed by BSNL shall be treated as final. If the difference is more than +/- 0.25% but also +/- 2%, payment shall be made by UASL. However, reconciliation of variance shall be carried out by both parties and will be subject to dispute resolution mechanism. Variance beyond this limit also shall be subject to dispute resolution mechanism / given below under sub clauses 7.6.1 to 7.6.5. as specified in the Interconnect Agreement. However, UASL shall pay to BSNL the undisputed amount plus 50% of the disputed amount subject to a minimum of an amount equal to previous month’s billed amount immediately.”

The counsel pointed out that the highlighted portion in the left column above has been inadvertently omitted in the Agreement signed on 21.9.2005 and the purpose of the Circular dated 12.6.2006 was only to set right the same. Likewise, the highlighted portion in the right column above was inadvertently included and was to be deleted.

8. As mentioned in para 5 above, the case of the Respondent is that the intention was to bring the Agreement signed on 21.9.2005 at par with the interconnection Agreements signed after 21.9.2005. But we find that in this case, we are dealing with Agreement dated 25.1.2002 where even the modality of reconciliation of the difference in bill amount is entirely different. The Clauses 7.6.1. to 7.6.5 read very differently from the Clause 7.6.0 in the Agreement of 21.9.2005. As such, the Letter/Circular dated 12.6.2006 is not a simple case of carrying out some corrections resulting from inadvertent typographical error but changing the very manner of reconciliation of the difference in bill amount.

9. As regards the Circular dated 24.7.2006, it reads as follows :-

“Bharat Sanchar Nigam Limited

(A Government of India Enterprise)

611B, Statesman House, B-148, Barakhamba Road,

Connaught Place, New Delhi-1.

No. 203-3/2003-Regin.(Pt) Dated 24th July, 2006

To

All Chief General Managers,

BSNL, Telecom Circles/Metro Districts/Maintenance Regions/TandD Circle

Subject : Difference in call duration in CDRs of BSNL exchange and private operators exchanges.

Some field units of BSNL have sought clarifications / guidelines to deal with such cases wherein during Acceptance Testing of POI of private operators, difference in call duration is noticed in CDRs of BSNL exchange and private operator’s exchange by the acceptance testing team.

2. In this regard, it is clarified that in such cases wherein difference in call duration is observed in CDRs of BSNL exchange and private operator exchanges by the acceptance testing team during testing of POI, the billing information as per BSNL CDRs should be treated as final and private operators should be charge accordingly. Further, an undertaking to this effect should be taken from concerned private operator before commissioning of POI. In case there is billing variation after commissioning of POIs, then also the bills as per BSNL’s CDRs need to be taken as final.

Sd/-

(Sanjeev Banzal)

Joint DDG (Regulation-III)

Copy to :

DDG(MS)/DDG(NM)/DDG(Comml)/DDG(TandC)/DDG(TRF)/DDG(IA),

BSNL, Corporate Office, New Delhi.”

10. The effect of the above Circular is that the BSNL’s records shall be treated as final. As can be seen, provisions of this Circular are very different from the provisions of clause 7.6.3 of the Agreement dated 25.1.2002 extracted in para 6 above. The argument of the counsel for Respondent is that this has been issued since BSNL being a government service provider cannot rely upon any data and records other than its own so as to ensure that there is no loss to the public exchequer. He has also stated that the clarification issued in the Circular would also be useful to the private operators in as much as they do not have to spend valuable time on synchronizing their own equipment with that of the BSNL and also can save on the time required for establishing the points of interconnection. We are unable to agree with this contention of the counsel for Respondent. Firstly, BSNL is a Public Sector Undertaking and is as much bound by Agreements signed as any other commercial undertaking. There is no concept of a Government service provider. Secondly, the argument that it is for the benefit of private operators is also not tenable. If parties have to depend only on the data and records of the BSNL, it is all the more reason why they should synchronise their equipment accurately with that of BSNL. Thirdly, there is also no evidence that there is either request from or an agreement with the private operators, let alone the Petitioner on this aspect.

11. The contention of the Respondent is that these Circulars have been issued pursuant to a request by the Petitioner for clarification and that these have been issued after an Agreement has been arrived at. We do not find any support for this argument. In any case, we do not wish to get into the correctness or otherwise of issuing clarification. Even if a clarification has been issued pursuant to an understanding, it can only serve as a basis for Agreements posterior to the date of such understanding. Any application of such understanding, even if it is mutual, will have to be signed by both the parties as addendum to the Agreement if it has to apply to existing Agreements. Written Agreement is supreme and can only be altered by another Agreement signed between both the parties, as an addendum to the earlier Agreement. Agreements cannot be amended by either party by issuing Circulars to their field offices. In this case, we notice that copies of these Circulars were not even marked to the Petitioner even though the first Circular refers to a representation from the Petitioner.

12. We accordingly hold that the Circulars dated 12.6.2006 and 24.7.2006issueud by the Respondent will have no application whatsoever to any Agreement unless it has been specifically agreed between the parties that the Agreements entered into prior to the date of these Circulars are to be amended suitably.

13. The Petition is disposed of accordingly. No costs.