ORDER
1. The Petitioner in this Petition has challenged basically a demand notice issued by the Chennai Unit of Bharat Sanchar Nigam Ltd. (1st Respondent) along with a prayer for quashing certain other incidental notices referred to in the prayer column which reads thus:-
(a) This Hon’ble Tribunal may be pleased to call for the record & the proceedings pertaining to Notices dated 14th January, 2005, 4th March, 2005, 23rd March, 2005, 26th August, 2005, 22nd September, 2005 and 23rd September, 2005 and demand notice issued by Chennai unit of Respondent No.1 dated 22nd September, 2005 for Rs.27,52,717/- and after examining the validity, legality and propriety the same may be quashed and set aside.
2. Before we go into the merits of the case, it would be more appropriate to point out that this Tribunal on 9th September, 2005 in Petition No.45 of 2005 filed by Tata Teleservices Ltd. and Maharashtra Teleservices Ltd. against Bharat Sanchar Nigam Ltd. while dismissing the said Petition had held that the service offered by the Petitioner therein by the use of an instrument named “Walky” was actually WLL (M) service i.e. a service with limited mobility and not a fixed telephone service which was contrary to the licence granted to the Petitioner therein. This Tribunal also held that consequently, the Petitioner therein was not entitled to the benefit of Access Deficit Charge (ADC). In the said Petition after addressing all the points raised therein on behalf of the Petitioner and Respondents, this Tribunal dismissed the said Petition upholding the demand notice issued by the Respondent.
3. We are informed that the said Order of this Tribunal is since pending in appeal before the Hon’ble Supreme Court of India.
4. In this Petition, the Petitioner is also providing, if not an identical service, almost similar service that was being provided by the Petitioner in Petition No.45 of 2005. Even the legal contentions raised in this Petition are almost similar except for certain factual modifications. In all fairness to the learned senior counsel appearing for the Petitioner in this Petition, it must be stated that he tried not to repeat the arguments already addressed in Petition No.45 of 2005 but raised those questions which he thought were not raised in that petition and which require the consideration of this Tribunal.
5. It was firstly contended that the instrument used in the case of Petitioner in Petition 45 of 2005 is different from the instrument that is being supplied by the Petitioner in this case to its customers. It was also contended that though the instrument supplied by the Petitioner had some sort of a mobility and was capable of operation outside the premise, the same was only within one BTS, therefore, the service provided by the Petitioner herein was a fixed line telephone.
6. In Petition No.45 of 2005 this Tribunal had elaborately answered the various contentions raised on behalf of the Petitioner in regard to type of mobility offered by the phone and held that the same cannot be categorized as a fixed line phone though it is cordless. In the instant case, it is not denied and it cannot be denied that the instrument supplied by the Petitioner in this Petition also had the capability of such mobility leading to the same being used outside the premises of the subscriber, may be in a little more restricted manner than the instrument supplied by the Petitioner in Petition No.45 of 2005 (i.e. assuming that the facts narrated by the Petitioner in this Petition are totally correct). But, in our opinion, once it is held that the instrument supplied by the Petitioner in this Petition is also capable of being used outside the premises and choice of use is left to the subscriber, it loses its categorization as a fixed line phone for the reasons already mentioned in the earlier Petition. Therefore, we need not once again go into this question for answering the contention of the learned senior counsel for the Petitioner that in spite of the instrument supplied, the service provided by the petitioner is that of WLL-F.
7. The next argument addressed by the Petitioner is that the Petitioner while providing its service uses a limited radio frequency sector of a base station which restricts the mobility of its services considerably. Hence, services provided by the Petitioner is a WLL(F) service. In our opinion, even if this fact is correct that will not make the Petitioner’s service a WLL(F) service because the mobility provided by this process is also sufficient to use the service outside the premises of a subscriber. At any rate, we do not think it is necessary for us to go into this question as it is not pleaded in the Petition.
8. The Petitioner has then raised a legal contention that in the instant case, the Department of Telecommunications (Respondent No.2) and the Telecom Regulatory Authority of India (Respondent No.3) by their letters of 23rd March, 2005, 26th March, 2005 and 22nd September, 2005 have without authority of law reclassified the Fixed Wireless Services as WLL-M service which is impermissible. The Petitioner contends that by this reclassification, the 1st Respondent has enriched unjustly by depriving the Petitioner of the benefit of ADC and the reclassification has also led to equating WLL-F with WLL-M. Consequently, the condition of the licence issued to the Petitioner has been amended which Respondents No.2 and 3 could not have done.
9. We do not think it necessary to go into this argument in detail once again because this was also an issue that was raised in the earlier petition which was considered and answered by this Tribunal holding that those communications were only clarificatory in nature. In this regard this Tribunal held:-
In our view the circular letter of TRAI dated 4-3-2005 and clarificatory letter of DoT dated 23-3-2005 are clear determinations on the existing regulatory licensing position in regard to portability/mobility of WLL(F) phone. The Consultation Paper of TRAI has taken note of the circular mentioned above issued by TRAI restricting the portability/mobility of a WLL(F) subscriber and equipment within the premises of the subscriber. It is also clear that this has not been kept in abeyance by TRAI pending the deliberations on the consultation paper. We are therefore of the view that the consultation process initiated by TRAI is part of a larger exercise relating to review of ADC and whatever regime is put in place in pursuance thereof would have prospective effect.
On going through the language of the above two communications of TRAI and DOT we have no hesitation in concluding that these are intended to bring out clearly the existing licensing/regulatory position in regard to the WLL(F) service and cannot be regarded as laying down any new regulations/licensing conditions.
10. For the reasons noted hereinabove even this argument of the Petitioner should fail.
11. In our opinion, there is hardly any difference between the service provided by the Petitioner in Petition 45 (C) of 2005 and the present Petitioner. Therefore, the finding of this Tribunal recorded in that Petition will hold good as well in regard to the contentions raised in this Petition and since the matter is already subjudice before the apex Court of the country, we do not think it is necessary for entering into investigation beyond what is stated herein.
12. Though very many grounds have been raised in the Petition and some more in the written submission filed before this Tribunal, we must state that most of them have not been argued probably because of the finding given by us in the earlier Petition. For the reasons stated above, this Petition fails and the same is dismissed.