BPL CELLULAR LTD Vs. UNION OF INDIA
LAWS(TD)-2004-3-4
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
Decided on March 03,2004

Appellant
VERSUS
Respondents

JUDGEMENT

D.P.Wadhwa, - (1.)THIS petition under Section 14(a)(i) of Telecom Regulatory Authority of India Act, 1997 (as amended) was filed by the petitioner, a service provider, on or about 15.02.2001.
(2.)Petitioner is one of the two cellular mobile service providers in the Tamil Nadu Circle. At the relevant time, there were to be two such service providers under the scheme of the Central Government (Union of India) and were to be issued licence under Section 4 of the Indian Telegraph Act, 1885. Second operator was M/s Aircel Ltd. who was subsequently impleaded as third respondent. Originally, when the complaint was filed -- there were two respondents, namely, the Union of India, through the Secretary, Department of Telecommunications and the Assistant Director General (VAS-I) in the Department of Telecommunications. (Henceforth, both these respondents will be described as DoT). Complaint of the petitioner is that after the 'migration package', as hereinafter described, was offered to all the cellular and basic operators of India, level playing field of the petitioner vis-a-vis Aircel Ltd., the third respondent, has been disturbed, putting the petitioner at a disadvantageous position. Petitioner has, therefore, prayed as follows :
"The petitioner, therefore, most humbly prays that this Hon'ble Tribunal may be pleased to:

(a) pass an order directing the respondent to ensuring level playing field conditions to the petitioner vis-a-vis the other operator, i.e., Aircel Ltd., in Tamil Nadu Circle, by either refunding the excess entry fee paid by the petitioner in comparison to Aircel Ltd. or by waiving petitioners' future licence fee obligation until the said difference in the entry fee is evened out;

(b) pass an order striking down the letter dated 22 August, 2000, of the DoT rejecting the petitioner's plea for a level playing field in Tamil Nadu Circle.

(c) pass such other or further orders as this Hon'ble Tribunal may deem fit and proper in facts of the case.

And for this act of kindness, the petitioner, as in duty bound, shall ever pray."

Dot invited tenders on 16.1.1995 from the prospective bidders for providing cellular mobile telephone service in various Telecom Territorial Circles in India including Tamil Nadu Telecom Circle with which we are concerned. Under the policy, only two bidders were to be awarded licences based on the bid process for each service area. It is not necessary for us to refer to various provisions of the notice inviting tender except to note that under the scheme, the bidders were to be marked as M1, H2, H3, etc., 'H' standing for highest. H2 bidder was required to match the levy of fees and payment schedule with the highest bidder (H1) to be eligible for grant of licence. In case H2 refuses to match the levy of licence fee and payment schedule with H1, the offer was to be made to H3, the third highest bidder, and so on.

(3.)AFTER the bids were evaluated, highest bidder was found to be the petitioner who had given a bid for Rs. 836 crores (spread over 10 years). Second highest bidder was Hinduja HCL Singtel Communications (P) Ltd. (HHSCPL) who had submitted a bid for Rs. 544 crores, and the third highest bidder was Aircel Ltd. who had submitted a bid for Rs. 450 crores. AFTER the second highest bidder matched the bid of the petitioner, both were issued Letter of Intent (LoI) for award of licence on 11.11.1995. Both were to accept the offer within one month. It was stipulated in the LoI that if it was not accepted within the stipulated period, it would be deemed to have been cancelled unless otherwise extended (emphasis supplied). Petitioner signed the licence agreement on 19.12.1995 after fulfilling the conditions of LoI. It paid Rs. 76.00 crores being the licence fee for the first year and also furnished financial bank guarantee and complied with other terms of the LoI. However, the second bidder, i.e., HHSCPL sought time, but in spite of extension of time having been granted, since it failed of fulfil the conditions of LoI, the offer expired on 30.5.1996. Action was taken against the second highest bidder, i.e., HHSCPL for encashment of the bank guarantee which had been submitted along with tender documents and which amounted to Rs. 20 crores. This led to ligitation started by HHSCPL on various grounds against, the decision of the DoT to encashment of the bank guarantee. However, ultimately, it is stated that the Madras High Court settled the matter in favour of the DoT and the bank guarantee was encashed and proceeds received by DoT. It is the contention of the petitioner that the extension of time under LoI to the second highest bidder, namely, HHSCPL, was against the terms of the notice inviting tender.


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