obligation with a subscriber and before it seeks the leased circuits from the other service provider. On the other hand, the obligation of the service provider to such a request has been made in the Regulation 5. The requested service provider has to, within 30 days of receipt of such request, send a confirmation of its ability to provide the Domestic Leased Circuit or Local Lead of Domestic Leased Circuit as the case may be. Demand note, giving details of payment schedule, likely date of provisioning of the circuits would need to accompany the confirmation. Clause 5 (2) of the impugned Regulations allows the requested service provider to intimate its inability to accede to the request only on grounds of non-availability of capacity or technical non-feasibility. In that case, the service provider has to give an option to the requesting service provider under Clause 8 of the Regulations, to acquire the circuits on “Rent and Guarantee Terms” or “Special Construction basis” or “Contribution basis”. Only, in this case, the terms can be mutually agreed between them whereas, in the case of provision under Clause 5, the tariff indicated in the Telecom Tariff order 2005 will operate. A service provider has to, willy nilly, provide the Leased Circuits or the Local Lead one way or the other, failing which it is under the scrutiny of the Authority. All that the requesting service provider has to do is to make a request and the rest of the burden is on the service provider to whom the request has been made. The counsel for Respondent was at pains to point out that these Regulations are not directed at the incumbents, the appellants in these two cases, and that they apply to all the service providers. Irrespective of whoever is the service provider to whom a request has been made, it is clear that the burden of providing the Leased Circuit or Local Lead is on that service provider. Incidentally, neither the Regulations nor the Explanatory memorandum define or explain the import of the terms “Rent and Guarantee Terms”, “Special Construction basis” or “Contribution basis”. The way the Regulations have been fashioned is akin to a person ‘A’ promising another person ‘X’ that he would reach within 15 minutes, which he can only by way of a car that he does not possess. He then hails another person ‘B’, who is driving by, and demands that he be transported to the place of person ‘X’. In the event ‘B’ has space, ‘A’ has to be accommodated and he would pay a predetermined price. In the event ‘B’ does not have place in the car or is travelling in another direction, then he has to offer to ‘A’ to hail a taxi for him, for which the payment terms and mode are to be negotiated between ‘A’ and ‘B’. This, to our mind and to say the least, is untenable. The impugned Regulations do not address themselves to the license conditions, the obligations of the requesting service provider before it approaches another service provider and the burden that is cast on the requested service provider to provide the resources even in the event of non-availability or lack of technical feasibility. It may be that the Authority was guided by a genuine concern for accelerating the availability of DLC resources to various sectors of the economy. But as laid down by the Hon’ble Supreme Court in IITT College of engineering v. State of H.P. and others [[2003) 7 Supreme Court cases 73] , "However laudable the objective behind the steps ..., it cannot be justified under law." The impugned Regulations are arbitrary in that they are not properly founded on facts and they also fail the test of logic. The weak foundation on facts is reflected in the contradiction between the consultation paper, which appears to point the responsibility towards incumbents and the explanatory memorandum to the Telecom Tariff Order 2005 where the reluctance of new entrants to go into rural areas has been held to be the principal factor. The lack of adequate logic is reflected in the absence of the Regulations addressing themselves to the responsibilities of the requesting service provider before it makes a request and the undue responsibility cast on the requested service provider to somehow or the other provide the resources, even if it has to set up the same.
