BHARATI AIRTEL LTD Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Both these petitions are heard and disposed of together, since they raise identical issues and are filed under similar circumstances.

(2.) The petitioner is a company incorporated under the Companies Act. 1956 and is a licensee under the Indian Telegraphs Act. The petitioner is authorised to operate Cellular Mobile Telephone Services within the Stale of Karnataka and the Karnataka Telecom Circle.

(3.) The Counsel for the petitioner, elaborating on the grounds urged in the petition, would submit that the aforesaid devices though are pre-packed commodities, would not attract the provisions of the SWM Act or the Rules, the relevant provisions which are cited by the third respondent in initiating the proceedings clearly do not cover the same. It is only those packaged commodities which are sought to be sold in a packed form, which are covered under the said provisions, in this regard, the Counsel would draw attention to Section 39 of the SWM Act and Rule 4.23(l) and 33 of the Rules, to demonstrate that a plain reading of these provisions does not contemplate a commodity such as the one in the case on hand. He would draw attention to Rule 2(l). which provides that a 'pre-packed commodity' means a commodity which is packed in the absence of the purchaser and the phrase - 'retail dealer', 'retail package' and 'retail sale' are defined as per Rule 2(o), (p) and (q) to mean a commodity which is in a packed-form sold to a consumer. It is only in respect of commodities in packed-form which are likely to be sold that are obviously covered under the Act and the Rules. There is no element of sale involved in respect of the devices in the case on hand. These devices are not sold by themselves. It is only to enabie the subscriber to access the services which are paid for and provided, that these devices are supplied. They are not sold by themselves. As already stated, the Counsel would emphasize that the devices by themselves, without the provision of services, are not of any commercial value to a purchaser and the ownership in the property is never transferred. And it is an express term of the agreement under which these devices are parted with, that they shall be returned on termination of the contract. The third respondent has completely overlooked this glaring aspect of the matter and has proceeded merely on the assumption that since the devices are in a packed state at the retail service outlets of the petitioner, that they are packed commodities covered under the provisions of the SWM Act and Rules.