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TMI Blog2016 (8) TMI 1608X X X X Extracts X X X X X X X X Extracts X X X X ..... ider and a group of consumers, as against any such adjudication, appeal is provided to the Supreme Court under Section 18. Section 15 bars the Civil Courts from entertaining any suit or proceeding in respect of any matter which could be determined by the Tribunal. In effect, the Tribunal is empowered to deal with any dispute as enumerated in Section 14(1) of the TRAI Act. Such being the case, whether in respect of any matter in dispute, is the jurisdiction of this Court under Article 226 of the Constitution ousted? In WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI ORS. [ 1998 (10) TMI 510 - SUPREME COURT ], the Supreme Court observed that the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and is not limited by any other provision of the Constitution. In the facts of the particular case, the High Court has a discretion to entertain or not to entertain a writ petition, subject to self-imposed restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would normally refrain to exercise its writ jurisdiction. However, the said alternative remedy cannot be consistently be hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their grievance redressed would be a futile exercise as without vacating the interim orders granted by this Court, any order passed would serve no purpose as has been rightly pointed out by the learned single Judge that any order that may be passed by the Tribunal in conflict with the interim orders passed by this Court would amount to judicial anarchy, which should be avoided. This Court holds that the writ petitions, at the instance of the petitioners, in the circumstances of the facts of case, are maintainable and the finding of the learned single Judge warrants no interference. Revenue Share on Non-Telecom Activities - Whether the first proviso to Section 4 of the Indian Telegraph Act gives unbridled powers to DoT to claim a share of revenue from non-telecom activities vide the definition of 'Adjusted Gross Revenue', forming part of the amended licence agreement in No. 842-2/2000-VAS (Vol. IV) (Part) dated 25.9.01 and whether such a power is violative of Articles 14 and 19(1)(g) of the Constitution? - Whether a writ of declaration can be issued that the respondents can charge only License Fee/AGR (Adjusted Gross Revenue) from revenue earned from licensed activities? - H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the validity of the terms and conditions, which the Supreme Court negatived and held that the Tribunal has jurisdiction only to interpret the terms and conditions of the licence. The Supreme Court did not go into the question of whether AGR would stand attracted even on revenue generated through non-telecom activities, which are not governed by the licence. On that ground the petitioners are before this Court on the issue as noted above, which is before this Court for consideration. The rule of law as propounded by the Supreme Court on the jurisdiction of the Tribunal is clear. However, in the case on hand, the point that requires consideration is whether Section 4 of the Indian Telegraph Act gives unbridled powers to DoT to claim a share of revenue generated from non-telecom activities on the basis of the definition of Adjusted Gross Revenue , which forms part of the licence agreement and whether such power is violative of Articles 14 and 19(1)(g) of the Constitution. Once a licence is issued under the proviso to sub-section (1) of Section 4 of the Telegraph Act, the licence becomes a contract between the licensor and the licensee and, consequently, the terms and conditions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch payments as it thinks fit to any person, the relevant portion of which has already been quoted above. Therefore, the right of the Government to deal with the said exclusive privilege and to grant licences is not in issue. The exclusive privilege to deal with telegraphs, more particularly, spectrum, in this case, and grant of licence for establishment and maintaining of telegraphs by private entities, assumes importance. The Central Government being the legal owner of the natural resource, as a trustee of the people, is empowered to distribute the said resource to private entities in the larger interests of the public. While the State is duty bound to protect the natural resource and utilise the same for public good, equally, the alienation of the same through issue of licences to private entities assumes significance as the revenue it generates also invariably goes towards the overall improvement of the country - the emphasis placed on clause 13 (ii) of the licence agreement for the purpose of OTSC by DoT needs to be addressed. On a harmonious reading of the said clause 13 (ii) of the licence agreement, what follows is that the licensor reserves the right to modify (inclusive of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those orders of stay stands automatically vacated in view of the dismissal of the writ petitions. Petitions are dismissed holding that the petitioners are bound to pay the amount, which is due to the department as a share of AGR on the non-telecom activities. It is for the respondent/Department to quantify the share of AGR on non-telecom activities, which remains unpaid, and issue a fresh demand notice within a period of one month from the date of a receipt of a copy of this order. On receipt of such notice, the petitioners shall pay the amount demanded by DoT within a period of one month from the date of receipt of the demand notice - petitions are dismissed sustaining the levy of OTSC made by DoT on the service providers. It is informed by the learned Addl. Solicitor General that an amount to the tune of approximately more than Rs. 3273 Crores is due from the petitioners to the DoT - petition are dismissed and the appellants shall comply with the order passed by the learned single Judge. - THE HONOURABLE MR. JUSTICE HULUVADI G. RAMESH AND THE HONOURABLE MR. JUSTICE M.V. MURALIDARAN For the Appellant : Gopal Subramanium and Satish Parasaran, SCs for R. Parthasarathy For the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e file of this Court, with further directions. 5. An overview of the entire factual matrix, which are intertwined with each other and necessary for the better understanding and disposal of the matter are culled out here-in-below:- (i) In pursuance of notification for grant of license for Cellular Mobile Telephone Service (for short 'CMTS'), Aircel Cellular Limited (for short 'ACL') was granted CMTS License for Chennai Metro Service Area (for short 'Chennai Area'), for a period of 10 years on 30.11.1994. Similarly, for the Rest of Tamil Nadu Circle (for short 'RoTN Area'), CMTS licence was granted to Aircel Limited (for short 'AL') for a period of 10 years from 22.5.1998 and the effective date for the licence was changed from 24.4.98 to 31.12.98. (ii) With the introduction of National Telecom Policy, 1999 (for short 'NTP, 1999'), migration package for all the existing licensees of cellular and basic telecom services were proposed. By the said proposal, payment of one time entry fee and license fee as a percentage of gross revenue under the licence was imposed and that the period of license was to be 20 years from the effective date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi) In the meantime, vide order dated 1.10.2010 in C.P. Nos. 215 216 of 2010, this Court approved the scheme of amalgamation of the transferor company (ACL) with the transferee company (AL) and directed that the transferor company shall stand dissolved without it being wound up. (vii) Vide amendment dated 7.10.10, DoT issued license to ACL granting right to use BWA spectrum for a period of 20 years. Vide communication dated 13.10.2010, DoT was informed by Aircel about the approval given by the High Court for the Scheme of Amalgamation and, therefore, sought merger of the licenses. Reminders were also sent by Aircel for merger of the licenses on various dates. DoT, vide communication dated 8.4.2011, sought certain compliance certificates from AL for the purpose of merger of the licenses, which were duly furnished by AL. (viii) In the meantime, certain company applications were filed in this Court for certain directions on which this Court had passed certain orders, which are not disputed by the parties. Further reminder letters were sent by AL seeking merger of the licences. To put it more clearly, since 23.11.2010, AL has been seeking for merger of the licenses till March, 2012. (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oached this Court by filing W.P. Nos. 2165 and 2166 of 2013 challenging the order dated 28.12.12 passed by the DoT and the consequent demand dated 8.1.13 and this Court, vide order dated 28.1.13 restrained DoT from proceeding further. In furtherance of the order of TDSAT, DoT, pursuant to the show cause notice dated 12.10.12 and subsequent personal hearing, passed order dated 26.4.13, holding that ACL was in contravention of Clause 9 and Condition 15.7 of the License Agreement as pointed out in the show cause notice and, accordingly, imposed a penalty of Rs. 10 Crores payable within 15 days from the receipt of the notice. However, no order was passed on the merger of the license as ordered by TDSAT. (xvii) Without prejudice to its rights and contentions, ACL deposited the penalty amount on 6.5.13, while reminding DoT of the order of TDSAT, wherein direction was issued to pass necessary orders on the merger of licenses within three weeks of DoT's order on the show cause notice. (xviii) Subsequently, by order dated 3.10.13, DoT conveyed an in-principle approval to amend AL's RoTN License dated 22.5.98 to include ACL's Chennai License dated 30.11.94. While granting the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in the Merger Order dated 3.10.2013. On receipt of the said letter, AL, vide letter dated 4.3.2014, withdrew the concessions made by it in the letter dated 18.12.2013. (xxi) Subsequently, AL and ACL approached this Court by filing W.P. Nos. 9220 and 9221 of 2014 challenging the conditions imposed in the merger order dated 3.10.2013. In the meanwhile, on 23.4.2014, in respect of renewal of ISP License for Dishnet Wireless Ltd., one of the group companies of AL, DoT clarified that the dues/demands, which had been stayed by Tribunals/Courts of competent jurisdiction will not be counted as enforceable demands. (xxii) Learned single Judge, vide common order dated 10.10.2014, while directed AL to comply with the conditions as imposed in the order of DoT dated 3.10.13, without prejudice to their rights and contentions in the pending writ petitions relating to OTSC and non-telecom activities, further held that in the event of the petitioners succeeding in the writ petitions, the undertaking given by them will automatically lapse and that the compliance of the conditions by the petitioners will not preclude the petitioners from taking recourse to legal remedies available under law. (xx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no other tags or conditions other than the above were laid. When such being the case, imposition of OTSC, that too with retrospective effect from 2008, after a lapse of more than 9 years, is totally untenable. 9. It is the further submission of the learned senior counsel for the appellants/petitioners that at the time of entering into the contract for grant of license, spectrum was allocated to AL and ACL for which requisite entry fee was paid and that no separate fee/charge needs to be paid by AL and ACL for getting the spectrum as the spectrum was bundled with the license. Learned senior counsel drew the attention of this Court to the letter of DoT dated 22.7.99, more particularly, clause (ii) of the said letter, wherein it is mentioned that the licensee will be required to pay one time Entry Fee and License Fee as percentage share of gross revenue. 10. Learned senior counsel appearing for the appellants/petitioners submitted that after initial allotment of spectrum of 4.4 MHz, additional spectrum was allotted to ACL, AL and DWL starting from 1.3.00 to 1.12.06. From the above, it is evident that the licensee has been paying spectrum usage charges under the terms of the licens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, the said OTSC can only be imposed for future allocations beyond 10 Mhz. To substantiate the said submission, learned senior counsel placed reliance on the recommendations of TRAI, as found in Page-107 of the typed set in furtherance to the consideration of the proposal forwarded by DoT vide its letter dated 9.7.08, wherein TRAI has noted enhanced spectrum usage charge has already been implemented for 6.2 MHz and 5 MHz for GSM and CDMA licences and since higher levels of usage charges have already been agreed to and are being collected by the Government, charging OTSC for spectrum below 10 MHz may not be feasible. 14. Learned senior counsel also submitted that since inception of the licenses, charge towards spectrum usage has been charged for by DoT and being paid by the licensees in the form of spectrum usage charges under the terms of the licence agreement, which is binding on both the parties. That being the case, levy of OTSC constitutes a double levy by DoT, which is impermissible in law. Reliance is placed upon the counter affidavit filed by the respondent to drive home the point that OTSC and spectrum usage charge are one and the same and that the appellants/petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is the further submission of the learned senior counsel for the appellants/petitioners that the impugned levy, being a compulsory exaction of money and not backed by any element of quid pro quo between the parties is clearly in the nature of levy of tax and the same sought to be effected by way of an executive action is against the mandate of Article 265 of the Constitution. Further, the said amendment of the license agreement, being not consensual and being unilateral is untenable and cannot be countenanced. 20. Learned senior counsel submitted that such arbitrary exercise of power jeopardizes the integrity of the contract. It was further contended that the provision of unilateral right to amend the terms has to be read in an implied term restricting exercise of such right so that that contract is not rendered unviable, which would not have been the intention of the parties. Reliance was placed on the decision of the High Court of Justice of England Wales Queen's Bench Division, Commercial Court in Esso Petroleum Co. Ltd.-Vs.-David Christine Addison Ors. (2003 EWHC 1730 (Comm.)). 21. It was further submitted by the learned senior counsel that the term 'public interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han-Vs.-The Thomco's Bank Ltd. (1963 Supp. (1) SCR 746); (ii) Central Inland Water Transport Corporation-Vs.-Brajo Nath Ganguly (1986 (3) SCC 156); (iii) Indian Aluminium Co.-Vs.-Kerala State Electricity Board (1975 (2) SC 414; (iv) Mahabir Auto Stores-Vs.-Indian Oil Corporation (1990 (3) SCC 752); (v) Biman Krishna Bose-Vs.-United India Insurance co. Ltd. (2001 (6) SCC 477); (vi) Build India Construction System-Vs.-Union of India (2002 (5) SCC 433); (vii) City Bank-Vs.-Chartered Bank (2004 (1) SCC 12); (viii) Reliance Energy Ltd.-Vs.-Maharashtra State Road Development Corporation Ltd. (2007 (8) SCC 1); (ix) BSNL-Vs.-BPL Mobile Cellular Ltd. (2008 (13) SCC 597); (x) Global Energy Ltd. Anr.-Vs.-CERC (2009 (15) SCC 570); (xi) Centre for Public Interest Litigation-Vs.-Union of India Ors. (2012 (3) SCC 1); (xii) Vodafone International Holdings B.V.-Vs.-Union of India Ors. (2012 (6) SCC 613); (xiii) In re: Special Reference No. 1 of 2012, Natural Resources Allocation (2012 (10) SCC 1); (xiv) Bharti Airtel-Vs.-Union of India (2015 (12) SCC 1); (xv) Jai Narain Parasrampuria-Vs.-Pushpa Devi Saraf (2006 (7) SCC 756); (xvi) Matter of Cross Brown Co. (Nelson), 4 A.D. 2D 501 (N.Y. Appl. Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be reasonable and rational. The State must act fairly and reasonably and cannot adopt a 'take it or leave it approach', which is an equitable relief enshrined under Article 14 of the Constitution. The State, under the guise of bargaining, cannot impose conditions, which are arbitrary and illegal and violates the right of the other party. Reliance was placed on the decision of the Supreme Court in Kerala Samsthana Chethu Thozhilali Union-Vs.-State of Kerala (2006 (4) SCC 327). 29. It is further submitted by the learned senior counsel that the concept of quid pro quo is an essential ingredient even in respect of fee being levied by the State, though being regulatory in nature, and not being compensatory, the fee levied must bear a reasonable co-relation to the license and must not be arbitrary or unreasonable. Reliance was placed on the decision of the Supreme Court in A.P. Paper Mills Ltd.-Vs.-Government of A.P. (2000 (8) SCC 167). 30. It is the submission of the learned senior counsel that the issue would squarely fall within the scope of Article 19(1)(g) of the Constitution. The activities that do not fall within the ambit of Article 19(1)(g) have been enumerated by the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned from activities not related to telecom in the computation of AGR would be unconstitutional and, thereby, rendering the source of power under Section 4 of the Telegraph Act ultra vires the provisions of the Constitution. 34. In a nutshell, it is submitted by the learned senior counsel for the petitioners that the appropriate forum, being this Court, in relation to dealing with the vires of the Section 4 of the Act vis-a-vis Article 19(1)(g), the petitioners have approached this Court by filing the present petitions. Though the petitions have been filed, it is submitted that till date no counter has been filed by the respondent denying the above averment and, considering the entire gamut of facts, learned single Judge has granted stay of the order. It is further submitted that even as on date, no counter has been filed by the respondent disputing the above contentions advanced by the petitioners. In the above backdrop, it is prayed that adverse inference has to be drawn against the respondent. 35. Learned Senior Counsel for the petitioners placed reliance on the following judgments:- (i) Dwarka Prasad Laxmi Narain-Vs.-State of Uttar Pradesh Ors. (AIR 1954 SC 224); (ii) State of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants to pay the amount demanded vide the above order is per se impermissible and against the rule of law. 38. It is further submitted by the learned senior counsel for the appellants that when the coercive demand and recovery has been stayed by this Court, the finding of the learned single Judge that stay granted by this Court against the coercive demand and recovery stands on a different footing from the imposition of a condition for renewal or transfer of license is per se unfathomable when the condition has been put forth by DoT itself that group entity holding licenses should be merged into one entity for the purpose for renewal of license. 39. Learned senior counsel for the appellants further submitted that pursuant to the auction notice for 3G and BWA dated 25.2.2010, merger was made mandatory insofar as successful group bidding entities were concerned and only in terms of the said condition imposed by DoT, the appellants went ahead with the scheme of amalgamation of ACL with AL. In such circumstances, it cannot be said that the renewal or transfer of license was at the instance of the appellants as has been held by the learned single Judge and, therefore, no condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that inspite of the appellants following the conditions as laid down in NIA, approval was not granted for merger and inspite of repeated reminders, DoT did not pass orders on the merger of licenses and, therefore, the appellants were constrained to move before the TDSAT for appropriate relief. Though the appellants filed petition before the TDSAT, no counter was filed in the said petition. However, curiously, a show cause notice was issued alleging violation of clause 9 and Condition 15.7 of the License Agreement. However, TDSAT disposed of the appellants petition with directions to the appellants to file reply to the show cause notice while further directing DoT to dispose of the said proceeding and also to pass order on merger of licenses within three weeks time from the date of passing of the order on the show cause reply. Learned senior counsel laid much emphasis on the findings of TDSAT in the interim order, where TDSAT specifically held that the appellants did not, prima facie, commit any illegality and that they had not violated any of the guidelines relating to merger. Further TDSAT also observed that the parties were governed by NIA dated 25.2.2010 and further ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requisite intimation to DoT have proceeded with the scheme of amalgamation and for which they sought the approval of DoT and also subsequent of merger, any condition imposed for the purpose of grant of approval, which is automatic, is per se bad in law and is liable to be struck down. 46. It is the further submission of the learned senior counsel for the appellants that in contravention of their own conditions, which the appellants have tried to fulfill, DoT having imposed a penalty of Rs. 10 Crores, which the appellants have honoured, though they are not at fault, the further onerous conditions put forth by DoT vide their impugned order dated 23.1.14, much against the circular dated 15.9.05 and NIA dated 25.2.2010 is not enforceable. 47. It is submitted by the learned senior counsel for the appellants that without following the directions issued by TDSAT dated 31.10.2012, wherein direction was given to pass order on the merger of licenses within three weeks from the date of passing order in the show cause notice, DoT, for reasons best known to it, has not passed any order inspite of numerous reminders by the appellants, which only shows the callous attitude of DoT to comply with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n passed by this Court and would that not amount to contempt of court. It is the further submission of the learned senior counsel for the appellant that the incidental core issue that arises is in a constitutional set up, can the executive Government act in derogation of the judicial proceedings. The act of the Government in trying to subvert the orders of this Court is a contemptuous act and needs to be deprecated for the reason that the last resort in a democratic country is the Judiciary and if the orders of the judiciary are sought to be undermined by such executive orders, the rule of law needs to be upheld by issuance of suitable directions to the Government. 51. Incidentally, learned senior counsel also brought to the notice of this Court a letter dated 23.4.2014 addressed by DoT to Dishnet Wireless Ltd., a subsidiary of the appellant, wherein DoT has clarified that the dues/demands raised by the licensor (DOT), which have been stayed by the Tribunals/Courts of competent jurisdiction in India will not be counted to the extent of such stay for the purpose of encashing PBG/FBG on account of non-payment of the raised dues/demands. In the context of the above letter of DoT, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, the appellants are bound to pay the said dues/demand consequent upon the undertaking given by them. Refusal to pay the said amount would amount to violation of the terms of the license agreement, which would render the license susceptible for termination. Therefore, it cannot be said that the injunction and undertaking stands on different footings so as not to direct the appellants herein to execute the undertaking as sought for by DoT. 54. Learned senior counsel further contended that the decision of the Apex Court in Centre for Public Interest Litigation Ors.-Vs.-Union of India (2012 (3) SCC 1) which was relied upon by DoT before the learned single Judge has no relevance to the case on hand as the licenses with which the Apex Court was concerned relates to the period between 2007 and 2008, whereas the licenses of the appellants were granted as back as in the year 1994. The charges mandated by the Supreme Court to be collected only pertains to licensees, who are to be granted fresh licenses and not to the licensees, who were granted licenses way back in the year 1994 and 1998. It is further pointed out by the learned senior counsel for the appellants that in para-72 of the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, is liable to be set aside. In this regard, reliance is placed on the decisions of the Supreme Court in Power Corporation Ltd.-Vs.-Sant Steel Alloys (2008 (2) SCC 777) and Sunil Pannalal Banthia-Vs.-City and Industrial Corporation of Maharashtra (2007 (10) SCC 674). 57. It is further submitted by the appellants that though crucifying conditions have been imposed on the appellants vide the impugned order, DoT has not imposed any such conditions on similar operators for the merger of their two licenses and in effect, DoT has violated the doctrine of 'level playing field' as enshrined under Articles 14 and 19(1)(g) of the Constitution. To buttress the above argument, learned senior counsel placed reliance upon the decision of the Apex Court in Reliance Energy Ltd.-Vs.-Maharashtra State Road Development Corporation Ltd. (2007 (8) SCC 1). 58. It is further submitted on behalf of the appellants that any action of the State must be free from the vice of arbitrariness, which is the crux of Article 14 of the Constitution and it is therefore the duty of every government instrumentality/public authority to act fairly and reasonably and exercise of power must not be in an arbitrary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandatory condition imposed by DoT itself, shows the arbitrary nature of its act, which requires the powerful claws of the judiciary to cut across the vicious web in order to protect and preserve the rights accrued on the appellants as enshrined in the Constitution. 61. In support of the above contentions, learned senior counsel for the appellants placed reliance on the following decisions:- (i) Centre for Public Interest Litigation-Vs.-Union of India (2012 (3) SCC 1); (ii) State of Tamil Nadu-Vs.-K. Shyam Sunder (2011 (8) SCC 737); (iii) Assistant Commissioner of Income Tax-Vs.-Hotel Blue Moon (2010 (3) SCC 259); (iv) State of Kerala-Vs.-Kurian Abraham (2008 (3) SCC 508); (v) Commissioner of Central Excise, Mumbai-Vs.-Rajpurohit GMP India Ltd. (2008 (231) ELT 577 (SC)); (vi) Shankara Co-op. Housing Society Ltd.-Vs.-M. Prabhakar Ors. (2011 (5) SCC 607); (vii) India Household Healthcare Ltd.-Vs.-LG Household Healthcare Ltd. (2007 (5) SCC 510); (viii) K.M. Nanavati-Vs.-State of Bombay (AIR 1961 SC 112); (ix) The Aligarh Municipal Board Ors.-Vs.-Ekka Tonga Mazdoor Union Ors. (1970 (3) SCC 98); (x) Mottur Hajee Abdul Rahman Co.-Vs.-Deputy Commercial Tax Officer, Vaniyambadi (1969 (2) M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Padampat Sugar Mills-Vs.-State of Uttar Pradesh (1979 (2) SCC 409); (xl)) Express Newspaper Pvt. Ltd.-Vs.-Union of India (1986 (1) SCC 133); (xli) Y.S. Vivekanand Reddy-Vs.-Government of Andhra Pradesh (1996 (1) Andh LT 760 FB); (xlii) Avishek Goenka-Vs.-Union of India Anr. (2012 (5) SCC 275); (xliii) Reliance Energy Ltd.-Vs.-Maharashtra State Road Development Corporation Ltd. (2007 (8) SCC 1); (xliv) Entertainment Network (India) Ltd.-Vs.-Super Cassette Industries Ltd. (2008 (13) SCC 30); (xlv) Tamil Nadu Generation Energy-Vs.-Sevorit Ltd. (K.A. (MD) No. 246 of 2013 M.P. No. 1 of 2012); and (xlvi) The Chairman, Tamil Nadu Generation Distribution Corporation Ltd.-Vs.-T.T. Ltd. (W.A. No. 1652 1653 of 2013); 62. Mr. G. Rajagopalan, learned Additional Solicitor General appearing for the respondent/Dot, at the threshold, submitted that the writ petitions in W.P. Nos. 9220 and 9221 of 2014 itself were not maintainable, so also the writ appeals which is an off-shoot of the writ petitions. It is the contention of the learned Addl. Solicitor General that Section 14(a)(i) of the Telecom Regulatory Authority of India Act, 1997 (for short 'TRAI Act') prescribes that in respect of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son to establish, maintain or work a telegraph within the Indian dominion. In pursuant to the power conferred by Section 4(1) of the Telegraph Act, the Central Government has granted license to the appellants herein for establishment of telecom activities on the conditions stipulated in the license. 65. It is further submitted by the learned Addl. Solicitor General that it is only the Central Government which has exclusive privilege over the establishment and maintenance of telegraphs and no one else has authority over it. Proviso to Section 4(1) of the Telegraph Act further empowers the Central Government to part with the privilege on receipt of such payments as it thinks fit. By virtue of the said power, DoT had entered into license agreements with the appellants and granted them license on certain terms and conditions. 66. Learned Addl. Solicitor General placed reliance on 13 (ii) of the License Agreement dated 30.11.94 entered into with the licensee, wherein the authority has reserved the right to modify at any time the terms and conditions of licence covered under Schedules 'A', 'B', 'C' and 'D' if in the opinion of the authority it is necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided for in the license agreement, DoT is not empowered to collect OTSC. 69. It is submitted by the learned Addl. Solicitor General that based on the Supreme Court Judgment, OTSC was sought to be levied and it was decided to collect the same retrospectively in respect of those holding spectrum on and over 6.2 MHz from 1.7.08. The respondents, being licensees, have no fundamental right to deal with the spectrum and it is the exclusive privilege of the Central Government and in public interest, if the Central Government thought it fit to levy OTSC, the appellants cannot have any quarrel over the same. 70. It is further submitted that as early as on 29.1.01, wherein amendment was made to the license agreement on the acceptance of the migration package by the licensees, license fee as a percentage of the share of gross revenue was levied and in the said amendment, clause (4) stipulated that the other terms and conditions of the license agreement would remain unchanged and this was accepted by the licensees. In such a backdrop, it is submitted by the learned Addl. Solicitor General that Clause 13 (ii) of the license agreement dated 30.11.1994 prevails by which unbridled powers have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of Article 14, in that charges have not been levied for spectrum bands. The only spectrum band, which was left out of OTSC was the 4.4 MHz band. Therefore, the contention of the appellants that OTSC cannot be levied, more so, from a retrospective date, is not sustainable and non-levy of the same would be against the judgment of the Supreme Court in the 2G Spectrum case (supra). On the question of retrospective levy, learned Addl. Solicitor General placed reliance on the judgment of the Supreme Court in Bharti Airtel Ltd.-Vs.-Union of India (2015 (12) SCC 1). 74. Learned Addl. Solicitor General, on the contention of the appellants that DoT cannot enforce revenue sharing on activities of the appellants, insofar as it relates to non-telecom activities, submitted that vide NTP 1999, migration package was offered to the licensees wherein the license period was extended from 10 years to 20 years from the effective date of the licence on the condition and the license fee payable will be a percentage on the Adjusted Gross Revenue of the service provider. The appellants accepted for migration to the revenue share regime. Once the appellants have accepted the migration package and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act as also Clause 13 (ii) of the License Agreement and the appellants having accepted the same, though the said levy of OTSC is under orders of stay before this Court, which DoT is honouring and have not demanded OTSC, however, if certain conditions are imposed for merger, it cannot be said that it is against the spirit of the stay order passed by this Court and is a contemptuous act, whereby DoT is trying to achieve something indirectly, which could not be achieved directly. The said argument is a fallacious argument on account of the fact that imposition of condition for merger could in no way be termed as violating the orders of stay granted by this Court. Further, it is submitted that what DoT is trying to achieve is a balance in the spectrum allocation amongst the various operators to have a level playing field and in furtherance to the same, if conditions, which are in consonance with the license agreement, are imposed, the licensee is bound to abide by the same and cannot come out and contend that since their licenses dates back to 1994 and 1998, they are not entitled for payment of any OTSC. 77. Concluding his submissions, learned Addl. Solicitor General submitted that al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though exclusive privilege in respect of telegraphs is granted to the Central Government and power is vested with the Central Government to grant license on such conditions and in consideration of payments as it thinks fit, it should be within the periphery of reasonableness and legal certainty. The word as it thinks fit should be read harmoniously, meaning thereby that it should be at the point of entry and not as and when the Central Government chooses it can impose conditions for fresh payments. That is not the purport of the said Section and power granted thereunder. Learned senior counsel placed more emphasis on the interpretation of the word as it thinks fit by referring to the words of Ruma Pal, J. in the case of State of U.P.-Vs.-Devi Dayal Singh (2000 (3) SCC 5), wherein dealing with the similar words relating to a matter under the Tolls Act, 1851, learned Judge held that it should reference to the meaning of the above words should be taken in relation to the word toll and, therefore, the State Government must justify the levy on the public. In this context, learned senior counsel submits that the Central Government cannot levy any charges off hand and it is bound to justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court was maintainable. Learned senior counsel submitted that the issue covered in one of the batch of writ petitions is similar and, therefore, it cannot be said that the writ petitions are not maintainable. 85. In the above backdrop of facts, learned senior counsel submitted that while the writ petitions are very much maintainable, the unilateral levy of OTSC, in the absence of consensus between the parties, is void ab initio and DoT cannot enforce such a levy and a levy, which is void ab initio, cannot form the basis for an undertaking to be given by the appellants for honouring their part of the contract, which has been mandatory by the Government vide its circular dated 15.9.05 and NIA dated 25.2.2010 and, therefore, insistence on the said undertaking is not justified, more so in view of the order of stay of OTSC granted by this Court. Further, the levy of AGR on non-telecom activities is also bad in law as AGR is payable only on the activities, which are covered by the license and for which purpose the license has been issued and any other activity carried on by the petitioners, not covered by the license, which has yielded returns, AGR cannot be enforced on the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14, 15 and 18 of the TRAI Act, wherein remedy has been provided to the aggrieved persons/service providers to approach the Tribunal at the first instance and remedy of appeal is provided to the Supreme Court. 90. Controverting this objection, learned senior counsel for the petitioners submitted that the decision of the Supreme Court in Association of Unified Telecom Service Providers of India case (supra) has categorically laid down that insofar as interpretation of the terms and conditions of license is concerned, TDSAT is vested with power, but the Tribunal has no jurisdiction to decide upon the validity of the terms and conditions incorporated in the licence of a service provider. It is the submission of the learned senior counsel that since OTSC is not a levy, which finds place in the license agreement, there is no question of interpretation of any of the terms and conditions, as the said levy is a fresh levy and, therefore, it strikes at the root of the validity of the license agreement, in that the moot point to be addressed whether the DoT has power to amend the license agreement by incorporating a new levy, which is not what has been agreed between the parties to the agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice providers; (iii) between a service provider and a group of consumers: PROVIDED that nothing in this clause shall apply in respect of matters relating to- (A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of section 5 of the Monopolies and Restrictive Trade Practices Act, 1969; (B) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986; (C) the dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885; (b) hear and dispose of appeal against any direction, decision or order of the authority under this Act. 94. The other relevant provisions are extracted hereunder:- 15. Civil court not to have jurisdiction-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Appellate Tribunal is empow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly be held as a bar where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 97. In the case of Baburam Prakash Chandra Maheshwari-Vs.-Antarim Zila Parishad (AIR 1969 SC 556) the Supreme Court observed as follows:- 3. It is a well-established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed-Vs.-The Municipal Board, Kairana, 1950 SCR 566 : (AIR 1950 SC 163), the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve and quash the conviction. There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the High Court under Art. 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course.--(See the decisions of this Court in Carl Still G.M.B.H.-Vs.-The State Bihar, AIR 1961 SC 1615 and The Bengal Immunity Co. Ltd.-Vs.-The State Bihar, (1955) 2 SCR 603. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice (See 1958 SCR 595, 605 : (AIR 1958 SC 86, 93)). 98. In the case of Nivedita Sharma-Vs.-Cellular Operators Association of India (2011 (14) SCC 337), the Apex Court while reiterating its views as expressed in the Whirlpool Corporation's case (supra), wherein it was observed that insofar as the jurisdiction of the High Court under Article 226 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed restriction and the same in no way precludes the jurisdiction of the High Court under Article 226. 102. In the above backdrop, the prerogative writ jurisdiction of this Court under Article 226 having not been ousted or curtailed, this Court having granted stay of recovery/demand as made by the DoT in the above batch of writ petitions, relegating the petitioners to approach the Tribunal to have their grievance redressed would be a futile exercise as without vacating the interim orders granted by this Court, any order passed would serve no purpose as has been rightly pointed out by the learned single Judge that any order that may be passed by the Tribunal in conflict with the interim orders passed by this Court would amount to judicial anarchy, which should be avoided. Therefore, with a view to avoid multiplicity of proceedings, instead of relegating the matter back to the Tribunal to decide the issue as raised by the petitioners, it would be more appropriate to exercise the prerogative writ jurisdiction of this Court for deciding the issues as raised by the petitioners/appellants. 103. Accordingly, on the issue of maintainability, this Court holds that the writ petitions, at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and defy another part of the agreement. The agreement should be accepted in toto, which the licensee has, with open eyes, accepted and, therefore, they are estopped from raising this plea. Learned Addl. Solicitor General also drew the attention of this Court to the decision of the Supreme Court in Association of Unified Telecom Service Providers of India case (supra), wherein the Supreme Court has held that once the licensee had accepted Clause (iii) of the letter dated 22.7.1999 that the licence fee would be a percentage of the gross revenue, which would be the total revenue of the licensee company and had also accepted that the Government would take a final decision with regard to the percentage of revenue share as also the definition of revenue, it is not open to the licensee to question the validity of the definition of adjusted gross revenue in the licence agreement not to include revenue from activities beyond the licence. 106. In a nutshell, the issue that arises for determination in this batch of writ petitions is-- Whether the first proviso to Section 4 of the Indian Telegraph Act gives unbridled powers to DoT to claim a share of revenue from non-telecom activities vide t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms and conditions of the license. The Supreme Court also further held that once the licensee had accepted that licence fee would be a percentage of the gross revenue, which would be the total revenue of the licensee company and had also accepted that the Government would take a final decision not only with regard to the percentage of revenue share but also the definition of revenue for this purpose, the licensee could not have approached the Tribunal questioning the validity of the definition of adjusted gross revenue in the licence agreement on the ground that adjusted gross revenue cannot include revenue from the activities beyond the licence. For better clarity, the relevant portion of the order is extracted hereinbelow:- 47. A dispute between a licensor and a licensee referred to in Section 14(a)(i) of the TRAI Act, therefore, is a dispute after a person has been granted a license by the Central Government or the Telegraph Authority under sub-section (1) of Section 4 of the Telegraph Act and has become a licensee and not a dispute before a person becomes a licensee under the proviso to sub-section (1) of Section 4 of the Telegraph Act. In other words, the Tribunal can a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cence fee would be a percentage of the gross revenue, which would be the total revenue of the licensee company and has also accepted that the Government would take a final decision not only with regard to the percentage of revenue share, but also with regard to the definition of revenue, is estopped from questioning the definition of adjusted gross revenue on the ground that it includes revenue from activities beyond the licence. The Supreme Court further held, in relation to the wide definition of adjusted gross revenue, if the licensee is really aggrieved that the activities that they undertake are outside the purview of telecom activities, which are outside the terms of licence, it was open to the licensee to transfer the activities to any other person or firm or company. However, the licensee having agreed to the terms regarding payment, which had been decided by the Central Government, which had the rights of exclusive privilege in respect of telecommunication activities, and availed the exclusive privilege to carry on telecommunication activities under the terms of a licence issued by the Central Government, it is not open to the licensees to plead for an alteration of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government is vested with exclusive privilege of establishing, maintaining and working telegraphs. Proviso to Section 4(1) of the Telegraph Act enables the Central Government to part with this exclusive privilege in favour of any other person by granting a licence in his favour on such conditions and in consideration of such payments as it thinks fit. The above provision of law makes it clear that the Central Government owns the exclusive privilege of carrying on telecommunication activities and it alone has the right to part with its privilege in favour of any other person by grant of a licence on such conditions and in consideration of such payment as it thinks fit. In effect, the licence granted by the Central Government under Section 4 of the Act to any person to carry on telecommunication activity is in the nature of a contract between the licensor and the licensee. 115. In Association of Unified Telecom Service Providers case (supra), the Supreme Court, while placing reliance on the judgment of the Supreme Court in case of State of Orissa-Vs.-Harinarayan Jaiswal (1972 (2) SCC 36), wherein while interpreting the expression exclusive privilege of the State Government under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 Gross Revenue: The Gross Revenue shall be inclusive of installation charges, late fees, sale proceeds of handsets (or any other terminal equipment, etc.), revenue on account of interest, dividend, value added services, supplementary services, access or interconnection charges, roaming charges, revenue from permissible sharing of infrastructure and any other miscellaneous revenue, without any set-off for related item of expense, etc. 2.2 For the purpose of arriving at the Adjusted Gross Revenue the following will be excluded from the Gross Revenue: (i) PSTN related Call charges (access charges) actually paid to Bharat Sanchar Nigam Limited (BSNL)/Mahanagar Telephone Nigam Ltd. (MTNL) or other telecom service providers within India (ii) Roaming revenues actually passed on to other telecom service providers, and (iii) Service Tax on provision of service and Sales Tax actually paid to the Government, if gross revenue had included the component of Service Tax/Sales Tax. (Emphasis supplied) 120. It is clear from the above definition that Adjusted Gross Revenue and Gross Revenue , includes installation charges, late fees, sale proceeds of handsets (or any other terminal equipment, etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue spirit and it cannot be sought to be diluted for the purpose of benefit of one of the party. A contract is a culmination of consensus of two minds and is supposed to be executed in its true and right sense without intention to defraud each other. The above migration package dated 25.9.2001 has been accepted by both the licensor and the licensee and after consensus, the contract has been executed, which provides for the licensor to levy licence fee as a percentage of share on the AGR with a clear understanding that any other miscellaneous revenue would also form part of the gross revenue of the licensee and that there would be no set off for related item of expense, etc. The licensee, being a company with legal expertise, would have had occasion to read through the licence agreement before signing and the company, at this point of time, cannot plead ignorance that its understanding was that the share would only be on the revenue that is covered by licensed activities. The purport and language so also the unambiguous language of the definition spells out that it includes all the revenue without set-off. That being the case, the petitioners cannot plead that the revenue earned fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licence agreement as also the further amended migration package, which was on a mutual understanding, the levy of OTSC in an arbitrary and unreasonable manner by DoT is against the constitutional obligations imposed on the Government and against the rule of law as enunciated by the Supreme Court in a catena of decisions. It is further contended on behalf of the petitioners that the Government having enjoyed the benefits of AGR as also the spectrum usage charges, cannot at this point of time, under the guise of power vested under Clause 13 (ii) of the licence agreement impose upon the petitioners an altogether new levy, which was hitherto fore not envisaged under the licence agreement. Such an imposition is per se bad in law and would go against the very spirit of the contract, which has been mutually agreed between the parties. DoT cannot enrich themselves at the cost of the petitioners. 127. It is the further contention of the petitioners that though the date for charging OTSC has been fixed from 1.7.08 for service providers holding above 6.2 MHz to 10 MHz, however, no reason whatsoever has been adduced for fixing the said date. It is the further contention of the petitioners tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing but equivalent to double taxation for the same spectrum/allocation. It is further contended that as the name OTSC suggests, it is supposed to be a one time fee. However, it is being charged over a period of time with differential rates over the said period. When differential rates are being charged over a period under the colour of OTSC, the concept of one time charge does not fructify as the name goes, it should be a fixed charge and it cannot vary based on periods. 129. Learned senior counsel for the petitioners placed emphasis on the order of the Supreme Court in Civil Appeal No. 9603 of 2010, wherein the statutory obligation of TDSAT to decide the matter on merits insofar as the validity of the charge fixed was on issue. It is the contention of the learned counsel for the petitioners that the writ petitions are very well maintainable, as the Attorney General, in the said case, has sought time to get instructions with regard to the validity of the charge. However, as per the decision of the Supreme Court in Association of Unified Telecom Service Providers case (supra), the Tribunal is not vested with jurisdiction to decide upon the validity of the terms and conditions inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions and in consideration of such payments as it thinks fit to any person, the relevant portion of which has already been quoted above. Therefore, the right of the Government to deal with the said exclusive privilege and to grant licences is not in issue. However, the issue that is sought to be raised by the petitioners is-- Whether in exercise of powers of exclusive privilege conferred under Section 4(1) of the Telegraph Act, the Central Government is empowered to impose new conditions/payments, in the form of OTSC, unilaterally, on the petitioners, in respect of a concluded contract? 133. For the purpose of imposition of levy of OTSC, DoT relies upon Clause 13 (ii) of the Licence Agreement, which empowers the DoT to modify the terms of the licence. For better clarity, the relevant portion of the clause reads as under:- 13. It is further agreed and declared by the parties that notwithstanding anything contained hereinbefore, that * * * * * * * * (ii) The Authority reserves the right to modify at any time the terms and conditions of the licence covered under Schedules A , B , C and D , annexed hereto, if in the opinion of the Authority it is necessary or expedient to do so in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provider wherein the initial term of 10 years of the licence was extended to 20 years from the effective date. The said migration package was accepted by the licensee. The above position is not in dispute. However, pursuant to the judgment in the 2G Spectrum case (supra), the Supreme Court had elaborated on what a natural resource is and its value to the country. The relevant portion of the judgment is extracted hereinbelow:- 74. At the outset, we consider it proper to observe that even though there is no universally accepted definition of natural resources, they are generally understood as elements having intrinsic utility to mankind. They may be renewable or non renewable. They are thought of as the individual elements of the natural environment that provide economic and social services to human society and are considered valuable in their relatively unmodified, natural, form. A natural resource's value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to production. Natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. 139. In the light of the above categorical observations and binding views of the Supreme Court, the emphasis placed on clause 13 (ii) of the licence agreement for the purpose of OTSC by DoT needs to be addressed. 140. The respondent submits that in view of the power vested under clause 13 (ii) of the licence agreement, whereby the Government has been empowered to modify the terms of the agreement in select situations, the Government, pursuant to the above observations of the Supreme Court and its binding nature, thought it fit to levy OTSC. The term modify , which is the fulcrum on which the lever, viz., OTSC moves, is interpreted by the Government to mean that it has the power to add terms in the licence agreement, while this imposition of levy is being opposed by the petitioners as is against the spirit of the bilateral contract. 141. The meaning of the term modify needs to be basically understood to tilt the scale in favour of either of the parties. The ordinary meaning of modification in concise Oxford Dictionary 11th Edn. At Page 918 is to make partial changes/transform . In Black's Law Dictionary 10th Edn., at Page 1157, the term modify is defined as to make somewhat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve definition should be construed as not to cut down the enacting provision of the Act. The Court further considered that in construing such a definition in an enactment that provision would have to be seen along with other provisions found in the legislation connected with it which may throw light upon it and afford an indication that the general words employed in it were not intended to be applied without some limitation. Accordingly in that case considering the inclusive definition of the term modification in Section 2(29) the Court held that it would include additions and omissions holding that when a sponsor was substituted by another creditor the Court construed that as an addition allowing the substitution of the sponsor. 147. On an overall understanding of the meaning attributed to the word modify as is available in the above celebrated literatures, what emerges is that the meaning of the term modify would also take within itself the meaning of addition , however subject to the intention of the makers of the enactments/agreements. 148. The preamble to the General Clauses Act speaks about the way in which the words should be construed. Useful reference can be had to the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the context of the overall provision is what would be more relevant and suitable to address the issue. 152. Cue to the interpretation of the term modify in the context of the present licence is evident from the terminology used in Black's Law Dictionary, wherein the term modify is defined as to make somewhat different , to make small changes by way of improvement, suitability or effectiveness . From an overall reading of the licence agreement in the context of the 2G Spectrum case (supra), the intention of the Government would be and should be to maximise the benefit achieved through the grant of licence in the interest of the general public. The intention is more manifest through the migration package offered by the Government during NTP 1999, where the concept of AGR was introduced. Reading of the licence agreement along with the migration package and NTP 1999 with reference to the decision of the Supreme Court in the 2G Spectrum case (supra), the word modify unambiguously includes the power to add terms and conditions to the contract. 153. Once the term modify occurring in clause 13 (ii) of the licence agreement brings within itself the power of addition, more specifically i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said clause with open eyes and also further accepted changes made to the contract, including extension of term and change in the prescription of licence fee, cannot, cry out loud at this point of time pleading denial of rights vested on them under the contract. The petitioners have no vested right to carry on telegraph activity, but for the licence, which has been granted by the exclusive privilege holder, viz., the Central Government. Such being the case, if the Central Government though it fit to impose OTSC on the service providers, it cannot be deemed to be against the vested rights of the service providers, as no vested rights accrue to them on the grant of licence to carry on the licensed activities. 156. Further, it is evident from the record that discussions/consultations on the imposition of OTSC was going on between the Government and TRAI since 2007, wherein TRAI had recommended imposition of OTSC. Though according to the petitioners, TRAI had recommended not to impose OTSC on service providers holding less than 10 MHz of spectrum, the Government had imposed OTSC on service providers, holding in excess of 6.2 MHz upto 10 MHz of spectrum retrospectively, while OTSC has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Agreement, is not arbitrary, and in fact justified and enforceable. MERGER OF LICENCES OF AL ACL:- 159. The last of the issue relates to the writ appeal, which is against the order passed by the learned single Judge, wherein the learned single Judge had directed the appellants to comply with the conditions imposed by DoT for grant of approval of merger. 160. Initially the licence was granted to two different entities, viz., ACL and AL, though they being group companies, through two separate licences. In terms of the circular dated 15.9.2005, the service providers were offered a option of getting their licences merged into a single licence without payment of any additional entry fee, which the appellants did not opt at that point of time. However, at the time of 3G auction, vide NIA dated 25.2.2010, merger of the licences was made mandatory in case of group bidding entities in terms with the circular dated 15.09.2005, if the service providers were desirous of participating in the 3G auction. Accordingly, the appellants submitted their undertaking that on their being successful, they will merge their licences. The appellants, being successful in the 3G auction, to honour their und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this order, comply with the conditions as imposed in the order of the respondent dated 03.10.2013, without prejudice to their rights and contentions in the writ petitions already pending on the file of this Court; (ii) insofar as condition (b) in the impugned order dated 03.10.2013 is concerned, the effective date shall be read as 31.12.1998; (iii) in the event of the petitioners succeeding in the writ petitions W.P. Nos. 585 587 of 2012 and 2615 to 2617 of 2013, the undertaking will automatically lapse; (iv) the compliance by the petitioners of conditions (e) and (f) will not preclude the petitioners from taking recourse to legal remedies available under law; and (v) all observations herein may not be taken to be a seal of approval of the demand. As against the above order, the appellants are before this Court by filing the above appeals. 162. When the appeals were taken up, after hearing the counsel for the parties, this Court, by our predecessors, passed the following order:- Interim Order: 33. (i) There shall be an interim direction to maintain status quo as on 5 November 2014 both in respect of demands as contained in the proceeding dated 3 October 2013 and provision of Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers are decided against them. Further, the order of the learned single Judge was also stayed. 164. This Court having held that levy of OTSC is sustainable and DoT can levy the said charge on the service providers, in effect, the stay granted by this Court in the writ petitions automatically gets vacated. In such view of the matter, it is not necessary to decide whether the coercive action of the respondent/DoT in demanding an undertaking is per se contemptuous when those levies are under orders of stay granted by this Court as those orders of stay stands automatically vacated in view of the dismissal of the writ petitions. 165. In the result, this Court passes the following order:- (i) W.P. Nos. 585 to 588 of 2012 are dismissed holding that the petitioners are bound to pay the amount, which is due to the department as a share of AGR on the non-telecom activities. It is for the respondent/Department to quantify the share of AGR on non-telecom activities, which remains unpaid, and issue a fresh demand notice within a period of one month from the date of a receipt of a copy of this order. On receipt of such notice, the petitioners shall pay the amount demanded by DoT within a period o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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