SIDDHARTHA BARUAH Vs. UNION OF INDIA

JUDGEMENT

(1.) In all these petitions the controversy centers round the order No. B42-38G/2002- VAS. (Pi) dated 23.10.2003 issued by the Director (VAS), Govt of India, Ministry of Communication & IT, Department of Telecommunications (VAS Cell) directing the Reliance Telecom(P) Limited (hereinafter shall be referred to as "RTL"), the mobile operator in North Eastern region to convert all prepaid subscribers of the region to post paid system by January 31, 2004. It is the case of the petitioners that the prepaid service of RTL has been restricted only to two cities of the region, namely, Guwahati and Shillong by the Central Govt. of India on the pretext of security problem. The RTL provides prepaid mobile service as well as postpaid mobile service. The Govt of India took a decision on 23.10.2004 directing the RTL to de-connect the prepaid mobile service in the region. It is the case of the petitioners that the pre-paid service provides to the subscribers is more economical. Further, the subscribers of this new postpaid system has to pay an extra monthly rent ranging from Rs. 175/- to Rs. 3497- which is in addition to the charges of different calls made. The subscribers for the postpaid service are also required to deposit an amount of Rs. 1000/- as extra payment. The new system is going to badly affect over 200 retail prepaid dealers of Guwahati and Shillong. Most of the dealers are educted youths who have found self-employment through this business. The North Eastern States have been discriminately treated by the Union of India by taking the policy decision dated 23.10.2004. When in whole of India prepaid mobile service is available to the subscribers it has been denied to the citizens of North Eastern Region. The decision taken by the Union of India on the ground of national security is only a camouflage and with the decrease in insurgency in the North Eastern States the decision of the Union of India has no rational relevance to the object sought to be achieved, namely, the national security.

(2.) After service of notice the respondents entered appearance. The RTL has filed its return and submitted, in brief, the working facets of the technology driven Cellular Mobile telephone Services (CMTS). Under the scheme of service the RTL provides two categories of cellular mobile telephone service, the "prepaid service" and the "postpaid service", the difference primarily resting on the billing mechanism. The prepaid service is a service in which the subscribers first pay and then use the services equal to the amount paid on account of call time allowed depending upon the prevailing tariff. In the postpaid service the subscribers use the service and then pay for it. When the subscribers make or receive a call, it is recorded in the switch at Guwahati in a specified format. At this stage prepaid and postpaid calls reach in the common place defined in the software for the purpose. Thereafter the calls of both types are transferred to billing system at Kolkata and billing is made. At Guwahati the RTL has 98640 XXXXX series of mobile subscribers. The total capacity of the series is 1 lac. In the prepaid system of cellular mobile telephone service the subscribers get connection immediately on payment of applicable charges and on filling up of the Subscriber Enrolment form along with the proof of address and proof of identity. The RTL is not directly selling these prepaid SIM cards. The SIM cards are pre- activated which can be taken from any of the retail counters. There are 280 retail counters in the city of Guwahati. Immediately on getting the card, the subscribers can make calls and can continue to do so by recharging the SIM card with a recharge voucher of available and preferred denomination. In the prepaid service, one way roaming, that is only incoming calls in roaming network, is provided. The verification of documents in proof of indentity and address of the subscribers is done by the retailer at the point of sale to the subscribers. In the postpaid system of cellular mobile service the subscribers fill up the Enrolment Form and furnish their proof of identity and address and pay the applicable charges for connection. Thereafter the form is scrutinized and proof of address and proof of identity documents are verified. The SIM cards (connection) are delivered by courier to the applicant subscribers in person at the address mentioned in the Subscriber enrolment Form. After the SIM cards are handed over to the subscribers at the address given in the Subscriber Enrolment form filled up by the subscribers, then the connection is activated and they can use it. It is further alleged that the RTL is merely migrating the prepaid subscribers to the postpaid system in compliance of the directives of the Central Govt issued vide letter No. B42-38G/2002-VAS.(Pt) dated 23.10.2003. As per the deponent the amount of Rs. 1000/- paid by the subscribers is not a charge of migration. The amount is refundable security deposit and it is taken as security to be adjusted against calls made by the subscribers and the bills if not paid. The deposit shall be refunded to the respective subscribers after adjusting of dues, if any, at the time of surrender of the subscription. It is not an additional security deposit. In prepaid system the call time is bought, that is to say, the subscribers pay in advance for the calls to be made by them, whereas in the post paid system of service, the subscribers first use the services and then make the payment on the basis of monthly bills generated by the service provider. Therefore, the security deposit is required to be adjusted at the time of surrender of the connection. Thus, it is the case of the RTL that the Company is acting on the directions issued by the Union of India, which is its policy decision. The Company has also clarified the difference between the workability of the prepaid system and post paid system. It is apparent that the prepaid cards are pre-activated cards which can be taken from any retail counters. Immediately after the cards are received it can be utilised and the same can be charged at the retail counter. The verification of the documents of proof in identity and address of the subscribers is done by the retailers at the point of sale to the subscribers. There are about 280 retail coutners in the city of Guwahati and each one of them has the facility for issuance of the prepaid cards on the basis of their verification whereas in the post paid system the proof of identify and address is subject to scrutiny of the Company and the SIM cards (connection) is delivered by the courier to the applicant subscribers in person at the address mentioned in the Subscriber Enrolment Form to assure the issuance of the card only to the persons whose identity and address has been verified.

(3.) The Union of India has issued the circular where under the directions have been issued by the Ministry of Communication & IT, Department of Telecommunications (VASCell) with reference to the Licence Agreement No. B42-VAS dated 12.12.95 for Assam Telecom Circle and Licence Agreement No. B42-VAS Dated 12.12.95 for North East Telecom Circle with M/s Reliance Telecom(P) Limited (RTL) where under it has been directed to the Company that the existing prepaid subscribers may be suitably migrated to the postpaid option. The said mirgration may be completed within 3 months time. There should not be any prepaid subscriber in the said service areas after 31.1.2004. LTnder the circular it is apparent that the directions have been issued to RTL under the licence issued for Assam Telecom Circle and North East Telecom Circle to stop the prepaid service from 31.1.2004 and the option may be given to the subscribers of prepaid service to convert it to postpaid service. It is this circular which is the subject matter of challenge in these petitions.