BHARTI CELLULAR LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal under Section 18 of the Telecom Regulatory Authority of India Act, 1997 is directed against an order dated 23rd May, 2003 passed by the Telecom Disputes Settlement Appellate Tribunal, New Delhi, whereby the Tribunal has dismissed in part the petition filed by the appellant under Section 14 (a)(I) of the Act and upheld the computation of licence fee demanded and realized by the respondent-Union of India in terms of the Licence Agreement executed between the parties.

(2.) The appellant-company holds a licence to provide cellular mobile telephone services for Delhi Metro area. The Licence Agreement executed between the appellant on the one hand and the Government of India on the other, inter alia, provided for payment of fixed amount towards licence fee for the first three years of the licence period. From the fourth year onwards the licence fee payable was to be on the basis of number of subscribers of the service provider subject to the minimum stipulated in the agreement. Clause 19 of the Licence Agreement in particular dealt with this aspect and, inter alia, provided that for the first three years a lump sum licence fee shall be chargeable annually and that the year shall be reckoned as the period of twelve months beginning with the date of commissioning of the services or completion of twelve months from the date of the signing of the licence whichever is earlier.

(3.) The appellant's case before the Tribunal was that although it had a provisional operational clearance from the respondent effective from 29th August, 1995 and an interface/service approval from 26th September, 1995, it could commence commercial services only from 15th November, 1995 meaning thereby the Licence Agreement should be deemed to have become operative only from 15th November, 1995. The respondents, however, treated 26th September 1995 i.e. the date when the interface/service clearance was given as the date of commencement of the Licence Agreement and computed the licence fee dues, interest, penal interest, liquidated damages etc. with reference to the said date. The appellant also questioned the method of computing the number of subscribers for determining the licence fee payable from the fourth year onwards contending that the term "subscribers" should be understood to be such as have activated cellular mobile telephone connection from the appellant and as are currently activated and used by a person for which bills are issued by the appellant. A few other disputes were also raised by the appellant in the petition filed on its behalf. One of them related to the alleged illegality and arbitrary computation of the advance payment stipulated for the entire quarter as due in the month of June itself and calculation of the interest and penal interest on the overdue amount. One other grievance of the appellant was regarding the Unit Call Rate for the purpose of calculation of the licence fee. It was contended by the appellant that in terms of the Licence Agreement the rate of Rs.5 lakhs per 100 subscribers was based on the Unit Call Rate of Rs.1.10. This rate was revised by the respondent to Rs.6.023 lakhs per 100 subscribers or part thereof on 30th July 1998 based on the Unit Call Rate of Rs.1.40 prevalent at that time. Unit Call Rate was then reduced to Rs.1.20 from 1st May, 1999. The appellant, therefore, claimed that the calculation of the licence fee payable for the period from 1st May, 1999 to 31st July, 1999 should be on the basis of the then Unit Call Rate prevalent, namely, Rs.1.20 only.