The face-off between private operators and the government over 3G roaming controversy continues with both questioning each other over the jurisdiction of telecom tribunal to decide over the issue.

Filing an affidavit, the telecom operators have termed government’s move to question TDSAT jurisdiction as “a desperate attempt to avoid adjudication of the present dispute” and requested the tribunal to dismiss DoT’s application moved last week.

The telecom operators have also opposed the submissions of the DoT that for 3G they need a separate licence.

“The DoT as a licensor should be aware that there is no 2G or 3G licence and the licence is common under UASL. This basic and fundamental error of perception colours the entire prospective and action of DoT,” said the operators in their reply.

Operators reply came over the new application moved by the DoT opposing tribunal’s jurisdiction to decide 3G roaming issue. The tribunal had directed the operators -- Airtel, Vodafone, Idea, Aircel and Tata Tele -- to file their reply on the government’s move.

Over DoT’s claim that tribunal cannot decide over any dispute under the licence agreements, the operators submitted that “the licence itself contemplates that any dispute under the licence will be adjudicated by the TDSAT”.

They further said that even section 14 of the TRAI Act says that TDSAT has jurisdiction “as the expert body to decide all disputes pertaining to the license between the licensor and the licensee“.

Moreover, in the present dispute, they have not challenged the validity of terms of their licence but they stand with it that it supports 3G roaming.

On the recent judgement of the Supreme Court on AGR issue cited by the DoT in its application, the operators said that in that case TDSAT had struck down parts of the licence terms which authorised government to levy charges. Hence the apex court held that TDSAT could not have done so as it does not have the power to go behind the terms of licence.

On DoT’s plea that TDSAT should stay its proceedings and vacate the interim order passed by it as the same issue was sub-judice before the Delhi High Court in a writ petition, the operators said that the case has no significance and no notice has been issued yet.

“If the pendency of the PIL was of such significance then the DoT ought not to have taken any precipitative action during the pendency of the said case,” the operators said.

Filing a new application, the Department of Telecom (DoT) has told TDSAT that it cannot entertain a petition seeking determination of contractual agreements and it is “not vested with the jurisdiction to grant declaration as prayed for”.

“This tribunal has no jurisdiction to declare and/or pass an order of judicial determination/declaration to any right under the licence agreement, therefore it can not adjudicate the validity of any terms or include/add any other/further term in the agreement and add/read into it,” said DoT in the new application filed by its counsel Maneesha Dhir.

Passing an order on December 24, the tribunal had directed the DoT not to take any coercive action against the telecom operators.

A day prior to that the government had asked five telecom operators to stop their inter circle roaming on 3G bandwidth within 24 hours and it was challenged by Airtel, Vodafone, Idea, Aircel and Tata Tele before TDSAT.

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