Paragraph numbers below are the court’s original numbering, recovered from the source text.
25. In view of the aforementioned law laid down by this Court, there cannot be any doubt whatsoever that the circular letters cannot ipso facto be given effect to unless they become s. part of the contract. We will assume that some of the respon- dents knew thereabout. We will assume that in one of the meet- ·r ings, they referred to the said circulars. But, that would not mean that they are bound thereby. Apart from the fact that a finding of fact has been arrived at by the TDSAT that the said circular letters were not within the knowledge of the respondents herein, c even assuming that they were so, they would not prevail over the public documents which are the brochures, commercial in- formation and the tariffs.
26. If the parties were ad idem as regards terms of the D i contract, any change in the tariff could not have been made uni- laterally. Any novation in the contract was required to be done on the same terms as are required for entering into a valicj and concluded contract. Such an exercise having not been resorted to, we are of the opinion that no interference with the impugned judgment is called for.
27. For invoking clauses 4.1 and 19.5 of the licence agree- ment, we may notice that the word 'prescribed' is not defined. It has not been defined even in the Indian Telegraph Act. It has i not been defined in the licence. The said provision unlike clause 18.14 does not use the words 'from time to time'. A contract entered into by the parties, it will bear a repetition to state, must be certain. It must conform to the provisions of the Indian Cone. tract Act. Ordinarily, the word 'prescribed' would mean pre- scribed by Rules. Section 7(2)(ee) of the Indian Telegraph Act G provides for the Rule making power for the purpose of laying down the tariff. We may not be understood to be laying down a law that in absence of any statutory rule framed under the Indian Telegraph Act, no contract can be entered into. In absence of any statutory Rule governing the field, the parties would be at A liberty to enter into any contract containing such terms and con- ditions as regards the rate or the period stipulating such terms as the case may be. The matter might have been different if the parties had entered into an agreement with their eyes wide open that the circular letter shall form part of the contract. They might B have also been held bound if they accepted the new rates or the periods either expressly or sub silentio. When on the basis of terms of the contract, different rates can be prescribed, the '1' same must be expressly stated. When the word 'prescribed' is not defined, the same, in our opinion, would mean that pre- c scribed in accordance with law and not otherwise. The respondent had two options. They were asked to choose one. Thus, a representation was made that they would be entitled to obtain lease the equipments (resources) at an R&G basis. Payments have been made on that basis. The question D which would arise for consideration is as to whether the basi$ ~1; making a demand itself can be changed. The answer to the said question, in our opinion, must be rendered in negative.
28. Section 8 of the Indian Contract Act reads as under: "Section 8. Acceptance by performing conditions, or receiving consideration-Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal." )_ It provides the acceptance of the proposal by conduct as against other modes of acceptance. It can be divided in two parts – (1) performance of the conditions of a proposal; and (2) acceptance of any consideration for a reciprocal promise which may be offered with a proposal. The latter corresponds to gen- G eral divisions of proposals into those which offer a promise in .1_ exchange for an act or acts and those which offer a promise for exchange for a promise. The bills were raised on the basis of the said premise. They were accepted. The promise on the part of the appellant was acted upon by the respondent. Appel- H lants, thus, now should not ordinarily be permitted to take a dif- ..I., BHARAT SANCHAR NIGAM LTD. & ANR. v. BPL MOBILE CELLULAR LTD. & ORS. [S.B. SINHA, J] ferent stand.
29. This aspect of the matter was considered in Amrit Banspati Co. Ltd. v. Union of India [AIR 1966 All.104] wherein it was stated : "Section 8 of the Contract Act provides that performance s of the conditions of a proposal, or tbe acceptance of any consideration for a reciprocal promise which may be offered with a proposal is an acceptance of the proposal. The language of the section is rather vague but its meaning is clear. It is based on the principle that if an offer is made c subject to a condition, the offence cannot accept the benefit under the offer without accepting the condition. He cannot take the attitude, "I shall accept the benefit but reject the condition"." In Ttre• Union of India v. Rameshwarlal/ Bhagchand [AIR 1973 Gauhati 111], it was stated: "Section 8 provides that performanc:e of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal. According to Section 2(a) of the Contract Act when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal; and Clause (b) of Section 2 states that when the person to whom the proposal is made signifies his assent thereto. The proposal is said to be accepted. A proposal when accepted becomes a promise. Section 2(f) enacts that promises which form the consideration or part of the consideration for each other are called reciprocal G promises." It was furthermore observed : "8. Some English decisions were referred to with approval in the Patna case relied upon by Shri Dam, I think that c those cases have no bearing on and relevancy to Section 8 of the Act. It is mentioned on page 59 of the Pollock and Mulla's Commentary on the Indian Contract Act, 81h Edn., that"nothing like the terms of Section 8 occurs in the original draft of the lnaian Law Commissioners, nor, so far as known to us, in any authoritative statement of English Law" and that the terms of the Section "appear to have been taken from the draft Civil Code of New York with slight verbal alteration". It follows from these excerpts that the English law has no provision parallel to Section 8 of the Act and as such recourse to English decisions for determining the scope of Section 8 may not be very apposite. Section 7 and 9 of the Indian Contract Act describe the various modes in which proposal may be accepted and if I may say so, Section 8 provides the acceptance of a proposal by conduct as against other modes of acceptance, such as verbal or written communication contemplated by Sections 7 and 9. Therefore, in a way Section 8 provides undoubtedly a uniue provision in the Indian Contract Act. It embraces a case to cite an instance of a reward offered for the finder of a lost article. If a person restores found article to the one who offered the reward, without accepting the latter's proposal in any other manner, the act or conduct or restoration itself is considered sufficient acceptance of the proposal to merit the reward. True that it is an ordinary rule of law that an acceptance of an offer made ought to be notified to the person who makes the offer. But since such notification is required for the benefit of the person making the offer the latter may dispense with notice to himself if he deems that course to be desirable. If the person making the offer to another intimates him expressly or impliedly a particular mode of acceptance the offeree can adopt that mode to conclude a binding bargain. If a man writes to another to send him certain goods, then the dispatch of goods would ,,…_ l . ..( BHARAT SANCHAR NIGAM LTD. & ANR. v. BPL MOBILE CELLULAR LTD. & ORS. [S.B. SINHA, J) surely amount to acceptance of the offer." In Life Insurance Corporation of India v. Raja Vasireddy Komalavalfi Kamba [AIR 1984 SC 1014], this court on accep- tance of provisions as envisaged under Section 7 and 8 of the Indian Contract Act, 1872 opined: i "Acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption of acceptance." Chitti on Contract at page 135 talks about the criteria where the agreement would not be held to be in reply to acts, further c agreement is required. It was stated : "Even an agreement for sale of land dealing only with the barest essentials may be regarded as complete if that was the clear intention of the parties. Thus in Perry v. Suffields Ltd. [(1915) 2 Ch.187) an offer to sell a public- house with vacant possession for £7,000 was accepted without qualification. It was held that there was a complete contract even though many important points, e.g. the date for completion and the question of paying a deposit, were left open. In another case, a buyer and seller of corn feed pallets had reached agreement on the "cardinal terms of the deal: product, price, quantity, period of shipment, range of loading ports and governing contract terms." The agreement was held to have contractual force even though the parties had not yet reached agreement on a number of other important points, such as the loading port, the rate of loading and certain payments (other than the price) which might in certain events become payable under the contract. And a publisher's oral commitment to publish a book has been held to amount to a binding contract, even > i though no details were specified in the agreement and nothing more precise was said about the author's remuneration than that he was to be paid a royalty to be agreed, or in default of agreement a fair one. In all these cases, the courts took the view that the parties intended to be bound at once in spite of the fact that further significant terms were to be agreed later and that even their failure to reach such agreement would not invalidate the contract unless without such agreement it was unworkable or too uncertain to be enforced."
30. In the instant case, the resources to be leased out were subject to agreement. The terms were to be mutually agreed . ..,.. upon. The terms of contract, in terms of Section 8 of the Con- tractAct, fructified into a concluded contract. Once a concluded contract was arrived at, the parties were bound thereby. If they c were to alter or modify the terms thereof, it was required to be done either by express agreement or by necessary implication which would negate the application of the doctrine of 'accep- tance sub silentio'. But, there is nothing on re,cord to show that such a course of action was taken. The respondents at no point D of time were made known either about the internal circulars or \ -.. about the letters issued from time to time not only changing the tariff but also the basis thereof.
31. We will assume that the contention of the learned Ad- E ditional Solicitor General that the internal circulars are issued for their application by the local officers. If theiy have committed a mistake, the same could be rectified.
32. Indisputably, mistakes can be rectified. Mistake may .L occur in entering into a contract. In the latter case, the mistake F must be made known. If by reason of a rectification of mistake, except in some exceptional cases, as for example, where it is apparent on the face of the record, mistake cannot be rectified unilaterally. The parties who that would suffer civil consequences by reason of such act of rectification of mistake must be given G due notice. Principles of natural justice are required to be com- .,.(_ plied with. The fact that there was no mistake apparent on the face of the records is borne out by the fact that even the officers wanted clarification from higher officers. The mistake, if any, was sought to be rectified af~er a long period; at least after a H period of three years. When a mistake is not rectified for a long BHARAT SANCHAR NIGAM LTD. & ANR. v. BPL MOBILE CELLULAR LTD. & ORS. [S.B. SINHA, J] period, the same, in law, may not be treated to be one.
33. Furthermore, what would be the effect of such a mis- take must be determined having regard to the provisions of the Contract Act.
34. It is not a case where the contract is sought to be ter- minated on the ground of a mistake. Only a higher rate is sought to be enforced on the basis of internal circulars. "T"
35. We have noticed hereinbefore the effect of an internal circular. There is no presumption about their correctness. Pre- sumption of correctness of documents is provided for in Sec- c tions 81 and 84 of the Indian Evidence Act. Even the contents of a newspaper, as envisaged under Section 81 of the Indian Evidence Act, would not be presumed to be correct.
36. Why publications are necessary so as to enable the D parties to take recourse thereto has been considered by this Court in B.K. Srinivasan v State of Karnataka [(1987) 1 SCC 658] in the following terms : "15. There can be no doubt about the proposition that where a law, whether parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed ,I. from the standpoint of the "conscientious good man" seeking to abide by the law or from the standpoint of Justice Holmes's "unconscientious bad man" seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all-pervasive and that there is hardly any field of activity where governance by delegated or subordinate G legislative powers is not as important if not more important, t than governance by parliamentary legislation. But unlike parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or H 770· c other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prAscribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable; mode of publication. There may be subordinate legislation which is concerned with a few individu6is or is confined to small . local areas. In such ca~es publication or promulgation by other means may be sufficient." In Ravinder Kumar Sharma v. State of Assam [(1999) 7 SCC 435], this Court stated : "26. Newspaper reports regarding the Central Government · decision could not be any basis for the respondents to stop action under the Assam Control Order of 1961. The paper reports do not specifically refer to the Assam Control Order, 1961. In fact, the Government of Assam itself was not prepared to act on the newspaper reports, as stated in its wireless message. Section 81 of the Evidence Act was relied upon for the appellant, in this behalf, to say that the newspaper reports were evidence and conveyed the ·- necessary information to one and all including Respondents 2 and 3. But the presumption of genuineness attachep under Section 81 to newspaper reports cannot be treated as proof of the facts stated therein. The· statements of fact in newspapers are merely hearsay BHARAT SANCHAR NIGAM LTD. & ANR. v. BPL MOBILE CELLULAR LTD. & ORS. [S.B. SINHA, J] …,, · (Laxmi Raj Sheffy v. State of TN.)." {See also I.Tc: Bhadrachalam Paperboards v. Manda/ Revenue Officer [(1996) 6 SCC 634]}
37. So far as the minimum gua"ranteed period is concerned, we have noticed hereinbefore, that the applicability of the Rule is in doubt. Rule 434 provides for charges private and charges. for non-exchange lines. "'Y' The Tribunal which is an expert body, opined : "12. We find grey areas in the submissions made by both c the sides .. Firstly, it is not at alt clear whether the lease arrangements entered into by the petitioner with the respondents were covered under Rule 4_34 Section IX or Section X of Indian Telegraph Act. Rule 434 Section IX and Section X deal with charges for Private Wires and D Non-Exchange Lines, respectively. These two terms, viz. 'f "Private Wires" and. "Non-Exchange Lines", have been defined under the Indian Telegraph Rules as under : "Rule 2(11) : Private Wires are those which connect two subscribers through a departmental exchange system w~ether a private relay set is · installed at the exchange or not and are not connected t9 the local telephone system and to …\ the general trunk net work; ***************** Rule 2(33a) : Non-exchange lines' are those which connect two subscribers without any departmental exchange intervening." From the application forms annexed by the petitioner to its G .)>.. petition, it may be seen that what was asked for was Data Circuit. Such circuits were more. in the nature of long- distance telephone circuits between two cities as may be evidenced by the following list of leased lines obtained by the petitioner which have been listed in the petition : · [2008} 8 S.C.R. Lease Circuits Obtained in 1. Cochin – Thiruvananthapuram .January 1997 2. Cochin – Thiruvananthapuram July 1997 3. Cochin – Calicut January 1997 4. Cochin – Calicut July 1997 5. Cochin – Thrissur February 1997 . ..,… 6. Cochin – Thrissur August 1997 c 7. Thiruvananthapuram- Kollam November 1997 8. Calicum – Kannur November 1997 9. Cochin·- Kottayam November 1997 10. Cochin – Kollam January 1998 11. Cochin – Kannur February 1998 12. Cochin-Thiruvalla May 1998 13. Cochin – Palakkad May 1998 14, Thrissur- Kunnamkulam June 1998 15. Thrissur – Palakkad June 1998 T~e leased data circuits taken by the petitioner were )._ between two exchanges of DoT/BSNL at two different cities. Thus, it is difficult to accept the contention that the circuits leased between two exchanges of BSNL located in two different cities were covered within the ambits of "Private Wire" or "Non-exchange Lines" as defined under Indian Telegraph Rules. Consequently the applicability of Rule 434 in the instant is not warranted. ..J.. 4 2A. We have taken note of the contention of Respondent No.1 that by its order dated 17th June, 1988 the minimum priod of hire for 2 Mbps lines was 3 years and the hirer 1-1 was required to pay for the entire period in case of BHARAT SANCHAR NIGAM LTD. & ANR. v. BPL MOBILE CELLULAR LTD. & ORS. [S.8. SINHA, J] premature surrender. The relevant question is whether A this was made known to the petitioner or the petitioner was expected to have a knowledge of this. From the copy of the Order No.4-31/86-R(Pt.) dated 17th June, 1988 placed on record by Respondent No.1, it is seen that it is a Circular issued by one Shri D.V.B. Rao, Assistant Director General (Costing), Rates Section, Department of Telecommunicatiosn and addressed to All Heads of Telecom Circles; All Heads of Metro, Major and Minor Telephone Districts; General Manager, MTNL, Bombay/ New Delhi. Copies were endorsed to a host of officials, c all belonging to the Department of Telecommunications. It was, therefore, basically an office circular for internal use and not a document released to the general public. i .,..I. xxx xxx xxx 15. As a result of all that is stated in the earlier paragraphs we hold that it has not been conclusively established that the contracts for leased data circuits between the petitioner and the respondents were covered under Rule 434 of the Indian Telegraph Rules and that the minimum guarantee period and penalties for premature surrender, as indicated in Rule 434 were applicable to these contracts. We also hold that the petitioner had no reason whatsoever for the non-observance of Rule 475-A of Indian Telegraph Rules in view of its categorical undertaking to abide by the provisions of these Rules." 38. Prima facie, the proviso appended to Section 9 and Section 10 providing for a minimum guaranteed period of three years does not appear to have any application. The authorities of the DOT also did not think so. They proceeded on the basis of and having regard to the phraseology used in Rules 478 and 496 G that minimum period is only three months. 39. Applicability of minimum guaranteed period of three years was sought to be enforced from a circular letter dated 17 .6.1988 only. The effect of the said circular letter has been discussed hereinbefore. We have furthermore noticed the vacillating stand' taken by the appellants herein in the case of C.G. Faxemail. They sought to charge the daub.le of the amount as prescribed in the contract on the basis that the. service which is being provided by them is close user group service. TRAI held it not to be so. B TRAI, as noticed hereinbefore, relied upon two circulars only, namely 13.1.1985 and 22.11.1996, the latter one being after the contract was entered into. TDSAT, apart from holding that the said circular letters are internal documents, did not deal with the internefservice providers. 40. It thereafter relied upon the circular letter' dated 15.4.1998 ·and not on the circular letter dated 3.6.1995, the former havi~g no application .to a contract which was entered into prior thereto. Even the said letter provided for three mon.ths minimum guarantee period for long distance lease lin'es. Even D DOT raised three months demand notice on orabout26.11 :1998. 41. Yet again, the DOT ;nits letter dated 13/14.1.1999 confirmed that paragraph A of the circular letter dated . 26.11.1998 referred to Rule 496: The parties were not ad idem as to whether these circuits being Jong distance lease lineswould E be governed by which circular, Furthermore, the authorities of the DOT, cissuming that they are applicable, despite the circu- lar lettersfconsciously entered into contract for one year's pe- riod on which the parties had acted thereupon. · 42. A finding of fact has been arrived at by TD SAT that the. said circular letters are not applicable. Rule 434 was not appli- cable. Appeal to this Court, in terms of Section 18 of the Act is maintainable only on·a substantial question of Jaw. 43. For the reasons aforementioned, we do not find that G these appeals raise any substantial question of law warranting interference. The appeals are dismissed :accordingly. How- ever, in the facts and circumstances of the case, there shall be . no order .as to costs. H G.N. Appeals dismissed .–'…