ORDER
Arun Kumar, J. (Chairperson)
1. The grievance made out by the applicant in this application is that the appellant/non-applicant has failed to implement the judgment of this Tribunal dated 24th August, 2007 whereby the main Appeal (Appeal No.14 of 2006) was disposed of.
2. Briefly, the facts are that the appellant/non-applicant had filed the Appeal against an order of the Telecom Regulatory Authority of India (for short “TRAI”) dated 11th September, 2006 whereby TRAI had rejected the claim of the appellant/non-applicant for revenue sharing among operators in respect of roaming calls – national as well as international. According to the TRAI, the appellant is only entitled to the termination charge @ 30 paise per minute payable by the operators and the appellant was not entitled to revenue share out of the revenue collected by the private operators on roaming calls both national as well as international.
3. By a detailed judgment dated 24th August, 2007, this Tribunal dismissed the Appeal of the appellant/non-applicant thereby upholding the impugned order of the TRAI dated 11th September, 2006. TRAI in its decision dated 11th September, 2006 also held that the said decision was prospective and would not have any retrospective effect. In view of the decision of this Tribunal dated 24th August, 2007, the TRAI order of 11th September, 2006 holds the field and has to be given effect to. The learned Counsel appearing for the applicant submits that the appellant/non-applicant is refusing to do so which has led to filing of the present application.
4. I have heard the learned Counsel appearing for both the parties. It is submitted on behalf of the applicant that according to the decision of TRAI, revenue sharing is not permissible. The TRAI order is dated 11th September, 2006 and takes effect from that date. Therefore, benefit of the TRAI order flows to the private operators with effect from the said date and it is the submission of the learned Counsel for the applicant that it is claiming this benefit only from the said date and the appellant/non-applicant be directed to implement the judgment of this Tribunal and give benefit of the order of the TRAI with effect from 11th September, 2006 to the private operators.
5. In reply to this prayer made on behalf of the applicant, the learned Counsel appearing for the appellant/non-applicant has invited my attention to prayers made in a petition filed by the applicant herein, being Petition No.319 of 2006, which was disposed of on 24.08.2007 along with the main Appeal (Appeal No.14 of 2006) in which the present application has been filed. The argument is that by the same judgment the Petition No.319 of 2006 was dismissed by this Tribunal. One of the prayers made in the said petition was for refund of additional amounts collected on national and international roaming calls by the present appellant from the present applicant. With the dismissal of the said petition, this prayer stood rejected which according to the learned Counsel for non-applicant means that the prayer for refund of the amount collected by the appellant (BSNL) by way of revenue sharing during the entire period does not have to be refunded. Further, it was argued that at present I am acting as a executing court and as an executing court I cannot enlarge the reliefs which were granted or not granted in the main petition.
6. I have considered the rival contentions of the learned Counsel for the parties. I find no merit in the contentions raised on behalf of the appellant/non-applicant. Petition No.319 of 2006 was mainly directed against the clauses in Interconnection Agreements which were relied upon by the appellant (BSNL) to make out a case for revenue sharing. Prayer (b) in Petition No.319 of 2006 is regarding quashing of those clauses while Prayer (C) is for refund of the amounts collected by way of revenue sharing by BSNL. Therefore, Prayer (C) appears to be only a consequential prayer. Secondly, in this behalf it is to be noted that Petition No.319 of 2006 was seeking relief only with respect to pre 11.09.2006 period. The TRAI itself had given relief by holding that there could be no revenue sharing with respect to post 11.09.2006. Therefore, it cannot be said that in Petition No.319 of 2006 applicant was seeking any relief regarding refund for the period after 11.09.2006. When it is so, there can be no rejection of prayer for relief regarding refund of amounts collected after 11.09.2006. The second point urged by the learned Counsel on behalf of the appellant/non-applicant is about my powers in entertaining the present application. According to the learned Counsel, granting any relief by me would amount to enlarging the relief under the main case and therefore, it is beyond my powers as an executing court. I do not consider it to be a correct way of putting the matter. Under this application, no fresh or further relief is being sought or granted. The judgment in the main case upholding the order of TRAI dated 11th September, 2006 stands. Necessary consequences must follow. The appellant/non-applicant must implement the order of the TRAI which has been upheld by this Tribunal with effect from 11.09.2007.
7. There is yet another aspect which has an important bearing. By the impugned decision dated 11th September, 2006, TRAI rejected the claim of BSNL for revenue sharing. It also held that the said decision was prospective and will not have any retrospective application. Therefore, with effect from 11.09.2006, BSNL was not entitled to have any share in the revenue generated by the private operators on roaming calls, both NLD and ILD. In the Appeal filed by the BSNL before this Tribunal, being Appeal No.14 of 2006, it prayed for an ex parte interim order staying operation of the decision of the TRAI dated 11th September, 2006. However, this Tribunal did not grant any stay of operation of the said order but only granted a limited relief that no coercive steps would be taken by the TRAI in pursuance of the impugned decision dated 11th September, 2006. In the absence of stay of the impugned decision of the TRAI the BSNL had no liberty to act contrary to it. The order has been finally upheld. The BSNL is not entitled to take advantage of its own wrong i.e. retaining the recoveries made by it in violation of the TRAI order. It must account for what it realized from private operators out of revenue generated by them from roaming calls, both NLD and ILD contrary to the TRAI order.
8. The application stands disposed of.
