TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
NEW DELHI

Dated: 01/03/2024

TELECOM PETITION/5/2024

WITH
MISC APPLICATION/74/2024

Petitioner Name: Plintron India Pvt Ltd & Anr.
Versus Respondent Name: Bsnl And Ors

BEFORE

HON'BLE MR. JUSTICE DHIRUBHAI NARANBHAI PATEL, CHAIRPERSON
HON'BLE MR. SUBODH KUMAR GUPTA ,MEMBER

For Applicants/Appellants/
Petitioners Advocate Mr Meet Malhotra, Sr Advocate,
Ms Shikha Sarin And
Mr Ravi S.s Chauhan

For Respondents Advocate Mr Tejveer Singh Bhatia For
R-1, B S N L
Mr Mukul Singh And Ms Ira Singh For R-2, D O T
Mr Arjun Natarajan And Ms Kamana Pradhan For R-3, T R A I

Amicus Curiae:

For Impleader(Pet.):

For Impleader(Res.):

ORDER

1. At length the arguments have been canvassed by the learned senior counsel for the petitioner as well as counsel for Bharat Sanchar Nigam Limited (BSNL), counsel for Department of Telecommunications (DoT) and counsel of TRAI.

2. It appears that petitioner was given MVNO Licence by DoT dated 11.5.2017 for the period of 10 years.

3. Petitioner wanted to use the aforesaid MVNO Licence for two service areas i.e. Tamil Nadu and Andhra Pradesh.

4. Many points have been argued out by the counsel for the petitioner about the National Telecom Policy and the use of the licence given by DoT and about the two agreements entered into between petitioner and the respondent no.1, one is known as “Empanelment Agreement” and another is “Commercial Agreement”. “Empanelment Agreement” is dated 23.10.2017. This agreement was for the period of five years. This agreement has come to an end by the efflux of time.

5. Another agreement “Commercial Agreement” which is dated 13.7.2018 which was also for the period of five years which still continues and is further extendable.

6. Many things have been argued out by the counsel for petitioner about the lethargic approach of the respondent no.1, but, suffice it to say that the petitioner wants to earn the money for the respondent no.1 and by retaining some amount with the petitioner large amount of the revenue will be handed over to the respondent no.1-BSNL. It is also highlighted by the counsel for the petitioner that they have a global footprint as MVNO having presence in about 31⁺ countries. Further that they have got 50,000 Sim Cards customers ready and, therefore, in the ratio of 40:60, the revenue will be shared as submitted by counsel for the petitioner.

7. Counsel for the respondent no.1 has argued out that the case is based upon agreements. One of the agreements have been brought to an end by the efflux of time. Court/Tribunal cannot re-write the contract. Second agreement is based upon the agreement no.1 which is “Empanelment Agreement” and, therefore, agreement no.2 i.e. “Commercial Agreement” cannot stand alone.

8. We have also heard at length, counsel appearing for the DoT as well as TRAI. Counsel for the TRAI has pointed out in detail about the consultation paper and the recommendations in August, 2020 and August 2021 respectively.

9. Counsel for the TRAI has also highlighted the consultation paper "On Connectivity to Access Service VNOs from more than one NSO" published by TRAI on 23.02.2024.

10. Looking to the overall arguments canvassed by the counsel for the petitioner as well as by the counsels for the respondents, it appears that in its simplest form, petitioner wants to work as an agent of the respondent no.1 for fetching more customers and consequently the revenue in the ratio of 40:60. It appears that the spare capacity/ unused capacity of the BSNL will go in waste, if MVNO Licensee like petitioner is not allowed to use the spare or surplus capacity of BSNL.

11. Counsel for the petitioner has highlighted that they are already having approximately 50,000 Sim Cards Customers ready and BSNL ought to use this base of earning of revenue by extending the contracts for a limited period or for stipulated period.

12. The infrastructure of the BSNL otherwise will go in waste and unutilized. The public resources ought to be utilized efficiently specially when petitioner type of MVNO is available with the respondent no.1.

13. Respondent no.1 has labelled this petitioner as inefficient MVNO but it ought to be kept in mind that sometimes petitioner type of Companies can also give earning to the respondent no.1. At this stage, we are not inclined to make our observations in detail, but, suffice it to say that if CMD of BSNL, Secretary DoT and Chairperson of TRAI can find out a solution about the continuity of the agreements so that spare capacity of the BSNL can be used by MVNO licensee and the revenue can be generated from the unutilized infrastructure of the BSNL. The aforesaid three heads - CMD of BSNL, Secretary DoT and Chairperson of TRAI may have a common joint meeting either by themselves or by their representatives to find out a via media for utilization of spare capacity of infrastructure of BSNL by Mobile Virtual Network Operator Licensee.

14. Petitioner shall cooperate the aforesaid heads of the respondent no.1, 2 and 3 and he shall send his representative whenever the respondents want their presence. The meeting may take place preferably within a period of two weeks.

15. The matter is, therefore, adjourned to 02.04.2024.

16. Interim relief granted earlier vide our order dated 01.02.2024 shall stand continue to be operative during the pendency of this Telecom Petition.

( JUSTICE D. N. PATEL)
CHAIRPERSON

( SUBODH KUMAR GUPTA)
MEMBER