B.V. Nagarathna JUDGMENT
Ajay Rastogi, J.
1. The instant batch of appeals has been preferred by the Appellant, Bharat Sanchar Nigam Ltd. assailing the judgment dated 20th August, 2014 passed by the Telecom Disputes Settlement and Appellate Tribunal, New Delhi, followed with the order dated 14th October, 2014 rejecting the application filed by the Appellant seeking clarification of judgment dated 20th August, 2014 to the extent that the rate of infrastructure charges for Active Links of Licensed Telecom Service Providers to be charged in terms of the circular dated 12th June, 2012 has been made effective from 1st April, 2013 instead of 1st April, 2009 taking note of increase of 10% per annum between 1st April, 2009 to 31st March, 2013 as payable on 1st April, 2013. As consequence thereto, the revised rates introduced by the Appellant as per circular dated 12th June, 2012, which although were proposed from 1st April, 2009, shall be applicable with effect from 1st April, 2013 but that was declined by the Tribunal under the order impugned.
2. It will be apposite to take a narration of facts for better appreciation of the controversy raised in the instant appeals.
3. The Respondents herein who have been granted licenses Under Section 4 of the Indian Telegraph Act, 1885, for providing telecom services such as Universal Access Service/Cellular Mobile Telephone Service/National Long Distance Service, etc. and the service providers entered into Interconnection Agreements with the Appellant which is a public sector undertaking for interconnection of their telecom networks with that of the Appellant.
4. Whenever a new operator wishes to start operations, it is necessary for such an operator to interconnect with various other networks of the incumbent operators that are already in existence. It is for this reason that interconnection as well as the terms on which the same is to be provided, is regulated by the telecom Regulations. The various operators designate some of their switches/exchanges as points of interconnect (POI) from which the interconnection facility is provided by a physical connection on the ports available in such points of interconnect. Sometimes, the newcomer called the interconnection seeker in common parlance, may ask for certain other facilities/resources from the incumbent operators, which may not be mandated by the Regulations, on mutually agreeable terms.
5. The dispute in the present batch of appeals pertains to charges for infrastructure facilities which are being provided by the Appellant to the batch of Respondents, which were increased by a circular dated 12th June, 2012, w.e.f. 1st April, 2009. The question that arose was as to whether the Appellant was justified in raising charges for infrastructure facilities with retrospective operation from 1st April, 2009, more so, when the yearly charges are paid by the service providers (Respondents) upfront in advance every year.
6. Interconnect Agreements are executed between the parties and as per Clause 2.1.9, infrastructure facilities will be provided, subject to availability and feasibility. Rental for use of such space and mounting shall be determined by the provider of such facility. As per Clause 6.3.3 of the Interconnect Agreement, it is not mandatory for the Appellant to provide<........