Significant Litigation

 

These are some of the significant litigation that we are following.

Vodafone Essar Ltd vs Raju Sud

Concerned a dispute with regard to the subscriber, inter aliachallenging the authenticity of computer generated bills which contained the charges. The Court held that, “printouts taken from the computer/server by mechanical process as contemplated under Sections 65 and 65-A of the Evidence Act is permitted, irrespective of the compliance with the requirement of Section 65-B of the Act”.

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State v. Navjot Sandhu

The Hon’ble Supreme Court when examining Section 65B, held that even when an affidavit/certificate under Sec. 65B is not filed it would not foreclose the Court from examining such evidence provided it complies with the requirements of Section 63 and 65 of the Evidence Act.

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Radio Interference: Music Broadcast Pvt. v. Union of India

Throughout the annals of precedent there are catenas of cases which are ignored. Their insignificance arises from the common restatements which they contain rather than the novel propositions they advance. The TDSAT decision in Music Broadcast Pvt. Ltd. v. Union of India, Petition no. 73 © of 2008, 29th April 2009 is one such case. The facts of the case demonstrate two juggernauts which stand in the path of quicker roll-out of broadcasting and telecom services. The first is the inability of the regulators and the private players to reach an optimum price for the licenses of services, often the high cost of the license makes the operation of the service commercially inevitable. Secondly, what compounds the delay is the bureaucratic system of completion of formalities for the operation of services. The facts of the case bear out that both these causes resulted at first, in delay and eventually non implementation of a FM broadcast license in Nagpur and Patna. Absence of price optimization and bureaucratic delay are symptomatic of telecom and broadcast licenses. With time I hope this decision is not relegated to the annals of the ancient but becomes a strange and curious precedent in the legal landscape, as the cases which contain the facts about the 7 year waitlists for a telephone connection. I may caution that though the decision contains the aspects of the post in passing (obiter), these are important and common themes present in several cases of telecom, and broadcasting disputes.

The full text of the decision is available on the following link. I have also prepared a case brief which is available on the following link. The decision has an interesting commentary on the law of unconditional guarantee and is a recommended read!

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Two’s Company : TDSAT’s Dual Spectrum Judgment

On 31st March, 2009 the Telecom Disputes Settlement & Appellate Tribunal (TDSAT) pronounced judgment in the case of the Cellular Operators Association of India & Others v. Union of India and Others (Petition №286/2007). This case was popularly known as the dual spectrum allocation case and involved the allocation of spectrum to CDMA operators (principally Reliance Telecommunications) who opted to also offer cellular services under GSM technology. Though the decision is presently impugned before the Supreme Court, the decision provides a deep insight into the direction in which the TDSAT is steering telecommunications law for next 5–10 years.

The findings of the court suggest that technology neutrality has always been part of the deregulatory process. The implications of the findings are that telecommunications companies will not be bound by legacy contracts or provisions and be tied to one particular technology. This will result in a market based adoption of technology, which is most efficient and economical for companies.

Another thing which I find interesting is the reliance which has been placed by the TDSAT on the obiter of the Delhi High Court. When the case was initially filed before the TDSAT, the TDSAT refused to grant stay on the allocation of spectrum, impugning this order the petitioners filed a writ petition before the High Court. The High Court declining to interfere with the order, made certain remarks in the text of its judgment though it cautiously added the caveat that the obiter was restricted to the impugned stay application and was not a finding as to the merits of the case. However, whenever the TDSAT could utilize the obiter of the court to buttress its own findings it has done so and has quoted the obiter to some extent. This shows that the TDSAT though acknowledging that it is not controlled by the obiter still looks to support and guidance from it.

Readers who are interested in more information and background into the Dual Spectrum Allocation Case may refer to a case brief which I have made for the judgment.

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