Telecom Disputes Settlement Tribunal
S. Tel Private Ltd., Haryana vs Union Of India, New Delhi on 6 July, 2015
TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
NEW DELHI
Dated 6th July, 2015
Petition No. 438 of 2014
(M.A. No. 273 of 2014, M.A.No.35 of 2015)
S. Tel Private Ltd. ...Petitioner
Vs.
Union of India ...Respondent
BEFORE:
HON'BLE MR. JUSTICE AFTAB ALAM, CHAIRPERSON
HON'BLE MR. KULDIP SINGH, MEMBER
HON'BLE MR.B.B.SRIVASTAVA, MEMBER
For Petitioner : Mr. Meet Malhotra, Sr. Advocate
Mr. Amit Gupta, Advocate
Mr. Ravi S.S. Chauhan, Advocate
Mr. Anant A. Pavgi, Advocate
Ms. Palak Singh, Advocate
For Respondent : Mr. Vikramjit Banerjee, Advocate
ORDER
By Aftab Alam, Chairperson - Is the petitioner entitled to get refund of the money that it paid for allocation of 3G spectrums under licences that were later 2 quashed by the judgment of the Supreme Court? This is the question that arises for consideration in this case.
The facts are simple and without any controversy. On 7 July 2007 the petitioner applied for Unified Access Service (UAS) licences in six circles/service areas. Even while the application was pending, the Government issued a press note on 24 September 2007, fixing 1October 2007 as the cut-off date for submission of application for fresh UAS licences. On 28 September 2007 the petitioner made application for UAS licences in sixteen circles in addition to the six circles, for which application was made earlier. On 10 January 2008 another press note was issued by the Government by which the dead-line for applications for fresh licenses was retrospectively advanced to 25 September 2007. On the same day the Government issued another press note through which a number of licences (122 in all) were granted to different applicants whose applications were received on or before 25 September 2007. Under that press note, the petitioner too was granted licences (on the basis of its earlier applications) in six circles namely, Assam, Bihar, Himachal Pradesh, Jammu & Kashmir, North East and Orissa. The petitioner paid Rs.25.1 Cr. as licence fee for the six licences. Its application submitted on 28 September 2007 was not considered on the pretext that it was submitted beyond the deadline.
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Against the denial of licences in the sixteen circles on the ground that the application for those licences was made beyond the cut-off date, the petitioner went to the Delhi High Court in W. P. (C) 363 of 2008, challenging the action of the Government in retrospectively advancing the last date for submission of applications as unjust, unreasonable and arbitrary. The High Court found and held that the Government decision to fix a cut-off date for making application for grant of licence with the view to limit the number of service providers was contrary to the advice tendered by the Telecom Regulatory Authority of India (TRAI) which the Government had purported to accept. It further held that the cut-off date that was initially fixed was retrospectively advanced without any rational basis. The High Court, accordingly, allowed the writ petition by judgment and order dated 1 July 2008and asked the respondents to consider the petitioner's application submitted on 28 September 2007. The Government challenged the judgment passed by a single judge in an intra-court appeal, which was dismissed by judgment and order dated 24 November 2009.The government then took the matter to the Supreme Court in SLP (C) 33406/ 2009. Before the Supreme Court the petitioner filed an additional affidavit stating that two and a half years had lapsed since it had filed the application for grant of licences in sixteen circles and in that period the market conditions had also changed primarily because its competitors who were able to get licences in January 2008 had already commenced or were in 4 an advanced stage of commencing services in the service areas in question. Also, the Attorney General representing the Union of India, the appellant, made the statement that application submitted by the petitioner on 28 September 2007 was not rejected but was kept in abeyance and that the Government would consider that application in due course, on first-come-first-served basis as per the prevailing policy and in consultation with TRAI. Taking note of the statements made in the additional affidavit filed by the petitioner and those made by the Attorney General, the Court, by its order dated 12 March 2010, disposed of the appeal as requiring no further adjudication. Nevertheless, it expressly sustained the findings recorded by the Delhi High Court in regard to the change in the cut-off date for submission of applications.
Shortly before the matter relating to the petitioner's application for licences in the sixteen circles was disposed of by the Supreme Court, on 25 February 2010 the government issued Notice Inviting Applications (NIA) for auction of 3G and BWA spectrum. Clause 3.1 of the NIA laid down the eligibility criteria to participate in the auction as under:
"3.1 Eligibility criteria to participate in the Auctions 3.1.1 3G Auction Any entity:5
(i) that holds a Unified Access Services ("UAS")/ Cellular Mobile Telephone Service ("CMTS") licence; or
(ii) that:
(a) has previous experience of running 3G telecom services either directly or through a majority-owned subsidiary; and
(b) gives an undertaking to obtain a UAS licence through a New Entrant Nominee UAS Licensee as per DoT guidelines before starting telecom operations can bid for 3G Spectrum (subject to other provisions of the Notice).
For the purpose of Clause 3.1.1(ii)(a), a wholly and directly owned company shall also be entitled to use the qualifications of its owner." The petitioner took part in the auction as a holder of UAS licences in six circles and on 21 May 2010, it was declared as the successful bidder for 3G spectrum in three circles, namely Orissa, Bihar and Himachal Pradesh. On 31 May 2010, the petitioner paid the sum of Rs.337.67 crores as license/entry fee for 3G spectrum allocated to it in the three circles. On 11 June 2010, the Government issued a Letter of Intent to the petitioner and on 1 September 2010, the Government (the Licensor), made amendments in the UAS licence held by the petitioner by incorporating in it clause 23.7, governing 3G spectrum. A portion of clause 23.7(i), in so far as relevant for the present, is reproduced as below:
"(i) ........In case the UAS license is cancelled/terminated/revoked/surrendered for any reason, the spectrum usage rights shall stand withdrawn forthwith. If the validity period of the UAS license agreement expires before 6 the expiry of the right to use the 3G spectrum of 20 years, awarded by means of the said Auction, then the validity of the UAS license for operation of Unified Access Services by using the said 3G spectrum only, shall be extended to make it coterminous with the validity of the right to use the 3G spectrum, without any charges and in such manner as the licensor deems fit..........."
Around the time, the government took steps for auction of 3G spectrum, the gross irregularities / culpability in the grant of UAS license on the basis of the two press notes issued on 10 January 2008 were brought to the notice of the Supreme Court in Centre for Public Interest Litigation and Ors. Vs. Union of India (UOI) and Ors.[WP(C) 423 of 2010].The Supreme Court pronounced its judgment on the matter on 2 February 2012 by which altogether one hundred and twenty two (122) licenses granted on or after 10 January 2008 pursuant to the two press notes released on 10 January 2008 were declared illegal and were quashed. The one hundred and twenty two (122) licenses quashed by the Supreme Court also included the six (6) UAS licences granted to the petitioner for the areas of Orissa, Bihar, Himachal Pradesh, Assam, J&K and North East.
Here it is significant to note that the Supreme Court judgment while taking note of the relevant facts of the case, specially noticed the petitioner's challenge to the press note issued on 10 October 2007 by which the cut-off date for submission of applications was retrospectively advanced and followed the case filed by the petitioner from the stage of the single judge in the High Court right up to the 7 Supreme Court. The relevant passages in the Supreme Court judgment are contained in paragraphs 46 to 49, which are as under:
"46. S. Tel Ltd., who had applied for grant of licence pursuant to press note dated 24.9.2007, but was ousted from the zone of consideration because of the cut-off date fixed by the Minister of C&IT, filed Writ Petition No. 636 of 2008 in the Delhi High Court with the prayer that the first press release dated 10.1.2008 may be quashed. After hearing the parties, the learned Single Judge vide his order dated 1.7.2009 declared that the cut-off date, i.e., 25.9.2007 was totally arbitrary and directed the Respondents in the writ petition to consider the offer made by the writ Petitioner to pay Rs.17.752 crores towards additional revenue share over and above the applicable spectrum revenue share.
47. The observations made by the learned Single Judge on the justification of fixing 25.9.2007 as the cut-off date read as under:
Thus on the one hand the Respondent has accepted the recommendation of the TRAI in the impugned press note, but acted contrary thereto by amending the cut- off date and thus placed a cap on the number of service providers. The stand taken by Respondent and the justification sought to be given for fixing a cut-off date retrospectively is on account of large volume of applications, is without any force in view of the fact that neither any justification was rendered during the course of argument, nor any justification has been rendered in the counter affidavit as to what is the effect of receipt of large number of applications in view of the fact that a recommendation of the TRAI suggests no cap on the number of access service providers in any service area. This recommendation was duly accepted and published in the newspaper. Further as per the counter affidavit 232 UASL applications were received till 25.9.2007 from 22 companies. Assuming there was increase in the volume of applications, the Respondent has failed to answer the crucial question as to what was the rationale and basis for fixing 25.9.2007 as the cut-off date. Even otherwise, 8 admittedly 232 applications were made by 25.9.2007 and between 25.9.2007 and 1.10.2007 only 76 were applications were received. It was only on 1.10.2007 that 267 applications were made. Thus on 28.09.2007 it cannot be said that large number of applications were received. Thus taking into consideration the opinion of the expert body, which as per the press note of the Respondent itself was accepted by the Respondent, certainly the Respondent cannot be allowed to change the rules of the game after the game had begun, to put it in the words of the Apex Court especially when the Respondent has failed to give any plausible justification or the rationale for fixing the cut-off date by merely a week. Taking into consideration that on 13.4.2007 the Government of India had recommended TRAI to furnish its recommendation in terms of 11 (e) of the TRAI Act, 1997 on the issue as to whether a limit should be put on the number of access service providers in each service area. The TRAI having given its recommendations on 28.8.2007 which were duly accepted by the Government, the Respondent cannot be allowed to arbitrarily change the cut-off date and that too without any justifiable reasons.
48. The letters patent appeal filed against the order of the learned Single Judge was dismissed by the Division Bench of the High Court vide judgment dated 24.11.2009, paragraphs 13 and 14 whereof are reproduced below:
13. We are unable to agree with the submission of the learned Attorney General that the parameters that would apply to revising a cut-off date that has been earlier fixed prior to the receipt of the applications would be no different from fixing a cut-off date in the first place. While the decision in D.S. Nakara which has subsequently been distinguished in N. Subbarayudu is about fixing a cut-off date which might be an exercise in the discretion of the Appellant, those decisions are not helpful in deciding the revision of a cut-off date after applications have been received in terms of the previous cut-off date, is amenable to judicial review on administrative and constitutional law parameters. We are of the view that the two 9 situations cannot be equated. The Government would have to justify its decision to revise a cut-off date already fixed, after applications have been received from persons acting on the basis of the earlier cut-off date. It would be for the court to be satisfied when a challenge is made, that the decision to revise a cut-off date after receiving applications on the basis of the cut-
off date earlier fixed was based on some rational basis and was not intended to benefit a few applicants while discriminating against the rest. In the present case, for the reasons pointed out by the learned Single Judge, with which we concur, the Appellant has been unable to show that its decision to revise the cut-off date after receiving the application of the Respondent was based on some rational criteria. It is vulnerable to being labelled arbitrary and irrational.
14. We are not able to appreciate, in the instant case, the submission of the learned Attorney General that the mere advancing of the cut-off date would not tantamount to changing the rules after the game has begun. In a sense it does. It makes ineligible for consideration the applicants who had applied, after 25th September 2007 but on or before 1st October 2007. Further this ineligibility is announced after the applications have been made. In other words, while at the time of making the application there was no such ineligibility, it is introduced later and that too for a select category of applicants. This cannot but be a change in the rule after the game has begun. We do not think that the decisions relied upon by the learned Attorney General contemplate such a situation. On the other hand the decisions in Monarch Infrastructure (P) Ltd. and K. Manjushree fully support the Respondent's case for invalidation of the Appellant's impugned decision revise the cut-off date from 1st October 2007 to 25th September 2007, long after receiving the application from the Respondent.
49. The Union of India challenged the judgment of the Division Bench in SLP(C) No. 33406/2009. During the pendency of the special leave petition, some compromise appears to have been reached between the writ Petitioner and the authorities and, 10 therefore, an additional affidavit was filed along with agreed minutes of order before this Court on 12.3.2010. In view of this development, the Court disposed of the appeal arising out of the special leave petition but specifically approved the findings recorded by the High Court with regard to the cut-off date by making the following observations:
Taking the additional affidavit and the suggestions made by the learned Attorney General, this appeal is disposed of as requiring no further adjudication. However, we make it clear that the findings recorded by the High Court with regard to the cut off date is not interfered with and disturbed by this Court in the present case."
In the end, however, the six (6) licences granted to the petitioner also failed to escape the axe and those too found place among the one hundred and twenty (122) licences quashed by the judgment.
The Supreme Court judgment created a situation where the petitioner, though holding 3G spectrum in three circles(that had not come bundled with the UAS licences but that had been acquired by it on the basis of auction) lost the authorisation to use the spectrum in any manner whatsoever. It was an unprecedented event and it seems that the Government of India too did not have any ready answer to meet the situation.
In this predicament, the petitioner made a number of proposals before the Government to mitigate its losses. On 7 November 2012, it wrote a letter to the 11 Secretary, DoT requesting for permission to assign the 3G spectrum to some other licence-holders. The relevant extracts from the letter is as under:
"In this regard, as apprised by us to you during our meeting dated 6th November 2012, we have commenced discussion with certain interested licensees for the purposes of arrangement in furtherance thereto. These discussions are at an advanced stage and we believe an assignment of 3G spectrum by our company can be consummated if there is an atleast in principle approval from your end. As you are aware, this has not been done earlier and does not have precedence. This has to be looked at in the light of what has happened to genuine small operators like us and our efforts to exit honorably.
Under these circumstances and in the light of our meeting held on 6th November 2012, we write to you seeking an in principle approval/ consent from DOT for the proposed assignment of the 3G spectrum allocated to S. Tel in Bihar, Orissa and HP in 2010 by S Tel in favour of interest licensees."
It did not receive any reply to this letter.
On 5 April 2013, the petitioner once again wrote to the Secretary DoT, this time requesting it to be allowed to use the 3G spectrum through its wholly owned subsidiaries. The relevant extract from the above letter is as under:
"That Sky City, being the original promoter of S. Tel, to be permitted to apply for 3 ULAS licenses in its three wholly owned subsidiaries for the H.P. Bihar and Orissa service areas to enable it to operate the 3G services obtained by the promoters through 3G auction. Sky City shall ensure that the Intended Licensees meet the requisite capital pre-requisites and abide by and continue all licensing obligations, undertakings and warranties originally 12 imposed upon the licensees including S Tel availing 3 G spectrum in 2010.
That in consideration of our request made hereinabove and in regard thereto, the Department of Telecommunications be pleased to provide us with the confirmation on the process and form of application to be submitted by the intended licensees for availing the requisite license, whether it be ULAS or such other license as may be prescribed."
It did not get any reply to this letter as well.
The petitioner again wrote to the Secretary DoT on 5 September 2013 requesting for an early decision on the issue and again on 21 April 2014 highlighting its difficulties and predicament.
Finally on 3 July 2014, the Ministry of Communications and IT issued a letter withdrawing spectrum in 2.1 GHz band allocated to the petitioner in the H.P., Bihar and Orissa service areas, subsequent to the quashing of its UAS licenses by the Supreme Court by judgment dated 2 February 2012. In this letter, it was stated as under:
"With reference to the subject mentioned above, I am directed to state that the following frequency carriers in 2.1 GHz band earmarked to you vide this office letter Nos. referred above stands withdrawn with immediate effect.
Service area Frequency carriers in MHz
Himachal Pradesh 1964-1969/2154-2159
Bihar 1959-1964/2149-2154
Orissa 1959-1964/2149-2154
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2. If you have procured any wireless equipment to operate 3 G services in the above service areas, you are directed to dispose of such equipments as per the relevant provisions of the Indian Telegraph Act, ITA, 1885 and the Indian Wireless Telegraphy Act, IWTA 1933."
It needs to be added here that from the date of allocation till the date of withdrawal the petitioner was not able to commercially operate the 3G spectrum for a single day.
In these facts the petitioner has come to the Tribunal, claiming refund of Rs.337.67 crores paid by it for the 3G spectrum in the service areas of Himachal Pradesh, Bihar and Orissa, the allocation of which it was able to get on the basis of the auction.
Mr. Meet Malhotra, Senior Advocate appearing for the petitioner submitted that the petitioner's licences were quashed by the Supreme Court owing to the illegalities in the decision making process, the responsibility for which lay entirely with the Government. The actions of the Government were declared to be "wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality" [paragraphs 97 and 102 of the judgment as reported in (2012) 3 SCC at pages 103 and 106]. Not an iota of blame attached to the petitioner, nor was the petitioner even remotely found to be a beneficiary of the wrong doings by the Government. Mr. Malhotra submitted that, as a matter of 14 fact, in this episode the petitioner has been the quintessential 'whistle-blower' and it was the first to challenge the irregularities in the grant of telecom licences by the Government before a court of law. Unfortunately, however, the Supreme Court did not make any distinction between the different licences granted on or after 10 January 2008 and quashed them all.
Mr. Malhotra submitted that as a result of quashing of the petitioner's licenses, the 3G spectrum allocated in its favour became unusable and the purpose of obtaining 3G spectrum stood frustrated. Learned counsel pointed out that the petitioner made several representations to the Government for permission for assignment of the 3G spectrum or to use it through creation of wholly owned subsidiaries. However, the petitioner was not favoured with any response by the Government. Mr. Malhotra submitted that the Supreme Court judgment gave rise to a situation where it is impossible for both sides to perform their respective obligations in connection with the use of 3G spectrum allocated to the petitioner and the contract in respect of the 3G spectrum is rendered void in terms of section 56 of the Contract Act. In support of the submission, Mr. Malhotra relied upon a Supreme Court decision in Satyabrata Ghose Vs. Mugneeram Bangur & Co.1 He also relied upon a decision of the Tribunal in Unitech Wireless (TN) Ltd. Vs. 1 1954 SCR 310 15 BSNL2, in which the Tribunal examined, though in a different context, the consequence of quashing of the license by the Supreme Court decision in Centre for Public Interest Litigation. Mr. Malhotra submitted that the appeal filed against the Tribunal's judgment in Unitech Wireless was dismissed by the Supreme Court even at the stage of admission itself by order dated 6 February 2015 in Civil Appeal Dy. No. 38102/2015. Mr. Malhotra further submitted that since the contract had become void the Government was bound to restore/refund the money received by it for allocation of the 3G spectrum in the petitioner's favour as provided under section 65 of the Contract Act. In support of his submission, he relied upon two Supreme Court decisions in Ramagya Prasad Gupta Vs. Murali Prasad3 and in Kuju Collieries Ltd. Vs. Jharkhand Mines Ltd.4 He also relied upon a number of decisions of different High Courts5.
Mr. Vikramjeet Banerjee, counsel appearing for the Union of India submitted that under the terms of the Notice Inviting Applications (NIA) for Auction of 3G and BWA Spectrum, the petitioner was not entitled to any refund. Referring to a decision of the Supreme Court in Global Energy Limited and Anr. 2 Petition No. 436 of 2013 3 (1974) 2 SCC 266 (paragraph 9) 4 (1974) 2 SCC 533 (paragraphs 6 to 9) 5
(i) Shaukat Ali Khan Vs. Babu Khan -1991(20) DRJ 38(Delhi High Court, SJ), (ii) Anuri Sivaramakrishnaiah Vs. Vermuri Venkata Narhari Rao AIR 1960 AP 186 (at paragraphs 13 to 22) (Andhra Pradesh High Court), (iii) State of Rajasthan s. Bundi Electric Supply Co. Ltd. AIR 1970 Raj 36(paragraph 54)(Rajasthan High Court), (iv) Man Singh Vs. Khazan Singh AIR 1961 Raj 277 (paragraph 17)(Rajasthan High Court, SJ),(v) Ayissa & Anr Vs. Prabhakaran AIR 1971 Ker. 239 (paragraphs 6 to 9)(Kerela High Court, SJ),(vi) Manasseh Film Co. Vs. Gemini Pictures Circuit AIR 1944 Mad 239(Madras High Court, SJ) and (vii) Mathura Mohan Saha Vs. Ramkumar Saha AIR 1916 Cal 136 (Calcutta High Court) 16 Vs. Adani Exports Ltd. &Ors.6, Mr. Banerjee submitted that the terms of the NIA are not justiciable and the Tribunal cannot go beyond the terms and conditions of the NIA. He relied upon clauses 3.6 ("Duration") and 3.7("Breach, Revocation and Surrender") of the NIA and submitted that the petitioner's claim for refund was barred by the conditions stipulated in those two clauses. Though Mr. Banerjee has relied upon small portions from the two clauses, in order to properly construe the true import of the provisions, the two clauses are reproduced below in full:
"3.6 Duration 3G Spectrum The right to use the 3G Spectrum shall be valid for 20 years from the Effective Date unless revoked or surrendered earlier, subject to the operator continuing to have a UAS/ CMTS licence. In case the UAS/ CMTS licence is cancelled/ terminated for any reason, the spectrum usage rights shall stand withdrawn forthwith. If the period of an existing UAS/ CMTS licence of an operator expires before the expiry of the right to use the 3G Spectrum awarded by means of the current Auction, then the validity of the UAS/ CMTS licence with respect to the 3G Spectrum only shall be extended to 20 years from the Effective Date on existing terms without any charges. The extension shall be done on the application of the licensee made in the 19th year of the UAS/ CMTS licence for extension of the period to make it coterminus with the validity of the right to use the 3G Spectrum.
However, extension, if any, of the right to use any spectrum other than 3G Spectrum associated with the licence and the terms thereof, shall be specified in due course.
3.7 Breach, revocation and surrender 6 (2005) 4 SCC 435(paragraph 10) 17 The spectrum assignment may be revoked, withdrawn, varied or surrendered in accordance with applicable licence conditions or any other applicable laws, rules, regulations or other statutory provisions.
The spectrum assignment may also be revoked if the Government determines the user of the spectrum to be in serious breach of any of the conditions of the award of the spectrum (including adherence to the Auction Rules) and the consequent obligations. In case of less serious breaches, the Government may impose penalties at its discretion. Seriousness of the breach shall be determined by the Government at its sole discretion.
In case neither the Successful Bidder nor any of its Associated Licensees has the relevant service licence for a service area where it has been declared a Successful Bidder, it must apply for, or otherwise acquire the relevant service licence in the service area in accordance with the terms of this Notice, within three (3) months of it being declared a Successful Bidder, failing which the Government shall have the right to revoke the spectrum.
The operator may surrender the spectrum, by giving notice of at least 60 calendar days in advance. In that case, it shall also notify all its customers of consequential withdrawal of service by giving 30 calendar days notice to each of them. The operator shall pay all fees payable by it until the date on which the surrender of the spectrum becomes effective. The effective date of surrender of the spectrum shall be the later of the dates of expiry of the two notices mentioned in this clause.
If at any stage, the spectrum allocation is revoked, withdrawn, varied or surrendered, no refund will be made."
Mr. Banerjee expanded his submissions and tried to bring in the principles of estoppel, waiver and severability of contracts. Learned counsel submitted that the petitioner had taken part in the auction process on the basis of the NIA that contained clauses 3.6 and 3.7. Following the auction, the Union of India had altered its position by accepting the petitioner's bid and allocating to it 3G spectrum. The petitioner was, therefore, estopped from even making a claim for 18 refund and it must be held to have waived its rights for any refunds. In support of the submission, he referred to some decisions of the Supreme Court.
Learned counsel also submitted that clause 23.7 that was inserted in the petitioner's UASL licences after allocation of the 3G spectrum to it was, in itself, a complete code for dealing with the 3G spectrum. Clause 23.7 was severable from the main body of the license and this clause too stipulated that in case spectrum allocation is withdrawn, no refund would be made.
He next submitted that the withdrawal of the spectrum was in terms of the specific directions of the Supreme Court in order dated 15 February 2013 passed in Writ Petition (Civil) No. 423 of 2010 (Centre for Public Interest Litigation case) and the remedy of the petitioner, if any, lay before the Supreme Court.
Here it may be stated that the submissions based on estoppel, waiver and severability of contract are noted simply because the counsel deemed fit to urge those pleas. We, however, do not see any application of those principles in the facts of the case and do not propose to discuss the submissions based on those principles any further. The submissions based on the terms of the NIA and the contention that the petitioner can seek its remedy only before the Supreme Court indeed deserve some consideration.
We will first deal with the submission based on the Supreme Court order passed on 15 February 2013.
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If the Supreme Court judgment or order gives the slightest indication barring restitution of any kind as a result of the quashing of licences that would be naturally the end of the matter and would brook no debate or discussion. But the question is, does the Supreme Court, expressly or by implication prohibit restitution in such cases.
As noted above the Supreme Court pronounced judgment in Centre for Public Interest Litigation on 2 February 2012. The operative order is contained in paragraph 81 of the judgment which, in so far as relevant for the present is reproduced below:
"81. In the result, the writ petitions are allowed in the following terms:
(i) The licences granted to the private respondents on or after 10.1.2008 pursuant to two press releases issued on10.1.2008 and subsequent allocation of spectrum to the licensees are declared illegal and are quashed.
(ii) The above direction shall become operative after four months.
(iii) Keeping in view the decision taken by the Central Government in 2011, TRAI shall make fresh recommendations for grant of licence and allocation of spectrum in 2G band in 22 Service Areas by auction, as was done for allocation of spectrum in 3G band.
(iv) The Central Government shall consider the recommendations of TRAI and take appropriate decision within next one month and fresh licences be granted by auction.
(v) xxxxxxxx
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(vi) xxxxxxxx
(vii) xxxxxxxx
(emphasis added)"
There was some delay in holding the auction and a number of interlocutory applications came to be filed before the Court by the Union of India and some private operators seeking some clarification or further direction on different issues.
On 24 April 2012 the Supreme Court passed the following order:
"This is an application by the Union of India for clarification of judgment dated 2.2.2012 and for grant of permission to conduct the auction as per the time schedule set out in Annexure P1 enclosed with the application.
We have heard the learned Attorney General and carefully perused the averments contained in the application.
In our view, it will be just and proper to partially accept the prayer made in the application and extend the time fixed by the Court up to the end of August, 2012.
Accordingly, the application is disposed of in the following terms:
1. The time specified in judgment dated 2.2.2012 in Writ Petition No.423 of 2010 and Writ Petition No. 10 of 2011 for conducting the auction for grant of fresh licenses and allocation of spectrum is extended up to 31.08.2012. This would necessarily mean that the applicant shall have to finalise the auction on or before 31.08.2012.
2. The existing licenses shall be entitled to continue to operate till 07.09.2012."
(emphasis added)"
On 27 August 2012, while disposing of IA no.8/2012 filed on behalf of the Union of India for extension of time to complete the auction process, the Supreme 21 Court further extended the time allowed to the licence-holders whose licences were quashed to continue to operate by directing that "the existing licensees shall be entitled to continue to operate till 18 January 2013". Thereafter the matter was taken up on a few dates7 and finally by order passed on 15 February 2013 the Supreme Court brought to end the operations by the licence-holders whose licences were quashed. The operative part of the order dated 15 February 2013 is as under:
"We have considered the respective submissions. In our view, once the licences granted to the private respondents on or after 10.1.2008 and subsequent allocation of spectrum were quashed by this Court, the Government is duty bound to auction the entire spectrum, which became available as a result of such quashing and it cannot avoid compliance of the Court's order in the guise of acting on the recommendations made by TRAI.
In view of the above, we issue the following directions:
(i) The entire spectrum released as a result of quashing of the licences on 2.2.2012 should be auctioned without further delay.
(ii) Since, the issue relating to allotment of spectrum in 900 MHz. band was not subject matter of consideration in Writ Petition Nos.423/2010 and 10/2011, we deem it proper to make it clear that judgment dated 2.2.2012 will have no bearing on the litigation, if any, filed in the matter of allotment/re-allotment of spectrum in 900 MHz. band and the competent judicial/quasi-judicial Forum shall be free to adjudicate upon the pending matters or which may be filed hereinafter in relation to the allotment of spectrum in 900 MHz.band and connected issues.
(iii) Such of the licensees, who continued operation after 2.2.2012, whether or not they gave bid in 7 18 January 2013, 4 February 2013 22 the auction conducted on 12.11.2012 and 14.11.2012, shall pay the reserve price fixed by the Government for the purpose of conducting auction in November, 2012.
(iv) The licensees, who did not give bid in the auction conducted on 12.11.2012 and 14.11.2012 or who remained unsuccessful shall forthwith discontinue their operations in the concerned circles/areas and the successful applicants should be allowed to operate in those circles/areas.
(v) The issue relating to liability of the licensees, who discontinued their operations between 2.2.2012 and this date shall be decided separately."
(emphasis added) Here it needs to be made clear that petitioner had stopped operations soon after the judgment dated 2 February 2012 and its position thus remained unaffected by the later orders passed by which the licensees whose licences were quashed by the main judgment were permitted to operate till 15 February 2013.
From the orders passed following the main judgment it appears that the directions of the Court were aimed at getting auctions held for fresh allocation of spectrums that had gone out bundled with the licences and that were freed as result of quashing of those licences. Further, as the process of auction was getting delayed and the Government sought extension of time for concluding the fresh allocation of spectrums, the Court, with a view to avoid any major dislocation of telecom services, deemed it proper to grant permission to the licensees whose 23 licences were quashed by the main judgment to continue operations until 15 February 2013.
Further, though in the last order in the series passed on 15 February 2013, the Court said that it would separately decide the issue relating to the liability of the licensees, who discontinued their operations between 2 February 2012 and 15 February 2013, no subsequent order of the Court was brought to our notice dealing with the issue. Moreover, neither in the main judgment nor in the later orders there is any indication forbidding the licensees from claiming refund of the licence fee for the licences that were quashed by the Court. Further, it is important to bear in mind that the claim of the petitioner in this case is one step farther removed. The petitioner in this case, as noted above, is not claiming refund of the licence fee; it is claiming refund of the money paid for the 3G spectrum that did not come bundled with the licences but was allocated in its favour on being successful in the bid held for the purpose. In these facts we see no justification for holding that the present petition is not maintainable before the Tribunal and that the petitioner should seek its remedy before the Supreme Court. Such an approach would amount to abdication of the Tribunal's jurisdiction and functions.
Coming now to Mr. Banerjee's submissions based on the NIA, clause 3.6 of the NIA that has the marginal heading "Duration" sets the period (of 20 years from the "Effective Date") for which the right to use the 3G spectrum would be 24 valid. But at the same time it makes it clear that holding a UAS/CMTS licence is the precondition for the use of the spectrum. It stipulates, "in case the UAS/CMTS licence is cancelled or terminated for any reason, the spectrum usage rights shall stand withdrawn".
Clause 3.7 of the NIA is under the marginal heading "Breach, revocation and surrender". It deals with revocation, withdrawal, variation or surrender of the spectrum assignment and provides that if the spectrum allocation is revoked, withdrawn, varied or surrendered at any stage, no refund would be made. Clause 3.7 also spells out that the assignment of spectrum may be revoked or withdrawn "in accordance with applicable licence conditions or any other applicable laws, rules, regulations or any other statutory provisions" or if the Government finds "the user of the spectrum to be in serious breach of any of the conditions of the award of the spectrum (including adherence to the Auction Rules) and the consequent obligations".
Mr. Banerjee submitted that though clause 3.6 uses the expressions "cancelled/ terminated", those words have substantially the same meaning as "quashed". He referred to the P Ramanatha Aiyar's Advanced Law Lexicon, 4th Edition and submitted quashing of licenses by the Supreme Court would amount to termination within the meaning of clause 3.6 of the Agreement. Mr. Banerjee submitted that once the petitioner lost the right of usage, the withdrawal of the 25 spectrum assignment was the only logical corollary and any refund of spectrum price is expressly barred by clause 3.7 of the NIA. Learned counsel put considerable emphasis on the expression "for any reason" and contended that the cancellation or termination of licence may take place due to any reason but the end result would be the same in all cases and in no case the erstwhile licensee would be entitled to refund.
We are unable to see clauses 3.6 and 3.7 in the manner presented by Mr. Banerjee. A conjoint reading of clauses 3.6 and 3.7 clearly suggest that those clauses deal with a situation where the contract is cancelled/terminated at the instance of the licensor for some fault on the part of the licensee. The expression "for any reason" is indeed very wide but it cannot be made limitless in meaning so as to make the provision of clause 3.6 nonsensical. The expression "for any reason" howsoever wide must be read with the qualification, "attributable to the licensee" or in different words, "not solely attributable to the licensor". The expression "for any reason" cannot be stretched to cover a case, like the one in hand where the licence is quashed owing to some fraudulent and culpable acts of the licensor in the process of issuance of the licence, no benefit of which, however, passed on to the licensee or where the licence is quashed but no blame for it extends to the licensee. Applying clause 3.6 to such a case would amount to doubly punishing the licensee for the sins of the licensor.
26
The question whether seemingly express stipulations made in a contract would apply to all sorts of contingencies was considered by the Supreme Court in Steel Authority of India Limited Vs Gupta Bros Steel Tubes Ltd.8 This case arose from an arbitration award that was challenged on behalf of the appellant, Steel Authority of India Limited inter-alia on the ground that the arbitrator had awarded damages to the claimant far in excess of what was permissible under clause 7.2 of the agreement, the breach of which was the subject matter of arbitration. On behalf of the appellant it was contended that the stipulation in clause 7.2 was in consonance with section 74 of the Indian Contract Act and that clause provided for compensation in respect of supplies made beyond the specified period; that the said clause laid-down the "maximum cap" of liquidated damages by way of compensation "to a maximum of 3% of the value of the delayed supplies" and that clause 7.2 was a complete answer to any breach of the contract for whatsoever reasons and, therefore, under no situation the quantum of damages could exceed the stipulation in the liquidated damages clause. It was further contended that the arbitrator exceeded his jurisdiction in disregarding the well settled principle that where the contract incorporates liquidated damages clause for breach of contract, under no circumstances the quantum of damages can be awarded in excess of the cap provided therein.
8 (2009)10 SCC 63 27 The Court noted clause 7.2 of the agreement which was as under:
"Clause 7.2 "SAIL shall supply materials as described in the offer/work order(s)/Delivery order(s) issued by SAIL from time to time. SAIL, however, shall have a period of one month after expiry of the indicated quarter/quarters as grace period for the purpose of supply or supplies. In the event of SAIL's failure(s) to deliver the indicated quantities even after the expiry of the grace period, SAIL shall pay to the customer(s) compensation @0.25% (quarter per cent) per month or part thereof on the value of the materials of the supplies delayed beyond the quarter/quarters plus the grace period(s) subject to a maximum of 3% (three per cent) of the value of the delayed supplies. The value for this purpose shall be worked out on the same basis as mentioned in note (iii) to para 3.1regarding calculation of Initial Financial Cover. The aforesaid compensation shall be paid within three months from the date of completion of order. In case an order is not executed within 12 months from the expiry date of the grace period, the order would be treated as closed after payment of applicable compensation, if and as due. Delay(s) caused in effecting supplies on account of or all of the force majuere conditions and/or on account of the failure/non-observance of the required formalities by the customer(s) shall be accepted the SAIL shall not bear any liability for such period(s).""
The court then broke down the provision contained in clause 7.2 in paragraph 27 of the judgment as under:
"27. Having noticed the legal position, we now turn to Clause 7.2 which can be analysed thus:
(i) SAIL shall supply materials as described in the offer/work order(s)/delivery order(s) issued from time to time.
(ii) SAIL shall have a period of one month as grace period for the purpose of supply or supplies after expiry of the indicated quarter(s).28
(iii) SAIL shall pay to the customer(s) compensation @ 0.25 per cent per month or part thereof on the value of the materials of the supplies in the event of its failure(s) to deliver the indicated quantity even after the expiry of the grace period subject to maximum of three per cent of the value of the delayed supplies.
(iv) The compensation shall be paid within three months from the date of completion of order.
(v) In case the order is not executed within 12 months from the expiry of grace period, the order would be treated as closed after payment of applicable compensation.
(vi) SAIL shall not bear any liability for such period where delay caused in effect of supplies is on account of failure/nonobservance of the required formalities by the customer."
The Court then, in paragraphs 28 to 31, observed and held as under:
"28. The question that needs to be determined by us is whether the breaches alleged by the respondent are covered by the stipulations contained in Clause 7.2. If the answer is in affirmative, obviously compensation cannot be awarded beyond what is provided therein. On the other hand, if breaches are not covered by clause 7.2, cap provided therein with regard to liquidated damages will not be applicable at all.
29. Insofar as booking of July-September, 1988 quarter by the respondent is concerned, it is an admitted position that the appellant (SAIL) declined the supply of materials i.e. 1500MT of 2mm thickness HR coils on the ground of `reasons beyond control'. The arbitrator in the award observed that SAIL has admitted that the demand was validly registered by the claimant; that material was available in abundance specially from domestic source and that supplies were made to others ignoring the claim of the present respondent. The arbitrator held that the intimation of the SAIL to the present respondent that the material will not be supplied to the claimant cannot fall within the ambit of Clause 7.2.29
30. Although it has been strenuously urged on behalf of the appellant that stipulations contained in Clause 7.2 are comprehensive enough to include all types of breaches, on a careful consideration thereof, we are unable to accept the submission made on behalf of the appellant. Can it be said that SAIL intended to provide for liquidated damages in the contract even in a situation where they were unable to make supply of materials for the reasons beyond control or they declined to supply the materials on one ground or the other. The answer has to be plainly in the negative. It is well known that intention of the parties to an instrument has to be gathered from the terms thereof and that the contract must be construed having regard to the terms and conditions as well as nature thereof. Clause 7.2 that provides for compensation to the respondent for failure to supply or delayed supply of the materials by SAIL was never intended to cover refusal to deliver the materials of the supplies on the part of the SAIL. Refusal to supply materials by SAIL resulting in breach is neither contemplated nor covered in Clause 7.2. There is no impediment nor we know of any obstacle for the parties to a contract to make provision of liquidated damages for specific breaches only leaving other types of breaches to be dealt with as unliquidated damages. We are not aware of any principle that once the provision of liquidated damages has been made in the contract, in the event of breach by one of the parties, such clause has to be read covering all types of breaches although parties may not have intended and provided for compensation in express terms for all types of breaches. It is not a question of giving restrictive or wider meaning to clause 7.2 but the question is what is intended by the parties by making a provision such as this and does such clause cover all situations of breaches by SAIL.
31. A careful consideration of clause 7.2 would show that it does not prescribe compensation for every type of breach. To name a few, breaches such as: (i) supplies of materials not in conformity with the contract; (ii) defective materials of supplies; (iii) deficient or short supply; (iv) different materials of the supplies are apparently not covered by Clause 7.2. We have indicated these breaches by way of illustration only to make a point that the provision in the contract for damages vide clause 7.2 cannot be said to extend to all situations and all types of breaches. In substance and in form, the claim of damages by the respondent 30 for the breaches of contract by SAIL is essentially distinct from the breaches contemplated by Clause 7.2. In this back-drop, if the High Court observed that Clause 7.2 is not panacea of all ills, it cannot be said that High Court fell into an error. Again, the view of the arbitrator that breach due to refusal on the part of SAIL to supply materials in July-September, 1988 quarter does not fall within the ambit of relevant terms contained in the compensation Clause (7.2), by no stretch of imagination can be said to be an absurd view. The arbitrator's view about non- applicability of Clause 7.2 for refusal to supply materials in July- September, 1988 quarter and delayed supply of materials for October-December, 1988 quarter is founded on diverse grounds elaborately discussed in the award. Whether this is or is not a totally correct view is really immaterial but such view is a possible view that flows from reasonable construction of Clause 7.2. The view of the arbitrator being possible view on construction of Clause 7.2, and having not been found absurd or perverse or unreasonable by any of the three Courts, namely, Sub-Judge, District Judge and the High Court, we are afraid, no case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution."
Applying the principle so clearly enunciated by the Supreme Court we come to the conclusion that the forfeiture of the petitioner's right to use the 3G spectrum is not covered by clause 3.6 and hence, there is no application in this case of clause 3.7 of the NIA.
A licence may be cancelled or terminated for some breach of its terms and conditions by the licensee (which is normally the case). However, in a rare case (as in the present case) the licence may get quashed by the court for a reason in no way attributable to the licence-holder. The vital difference where a licence is quashed for no fault on the part of the licensee and where the licensor itself is 31 responsible for quashing of the licence is highlighted in the decision of the Tribunal dated 21 August 2014 in Petition no. 436 of 2014 [Unitech Wireless (TN) Pvt. Ltd. V. Bharat Sanchar Nigam Ltd. and Others] in which the Tribunal first considered, though in a different context, the consequences of the quashing of the licence by the Supreme Court. In that case the question that arose for consideration was whether an operator is liable to pay the cost of removal of ports (one year's rent) installed at BSNL's exchange even if the cessation and removal was occasioned due to the operator's licence being quashed by the Supreme Court, i.e., a reason over which the operator had no control. In Unitech Wireless the Tribunal referred to the classic elucidation of the concept of frustration of contract in the Supreme Court decision in Satyabrata Ghose Vs. Mugneeram Bangur & Co.9, later reiterated in the Supreme Court decision in Naihati Jute Mills Vs. Khylaram Jagannath10 and followed in a more recent decision by a learned single judge of the Delhi High Court in Continental Enterprises Ltd. Vs. state Trading Corporation of India11. Applying those decisions to the facts of the case in Unitech Wireless, the Tribunal observed as under:
"The upshot is that the law does not expect anyone to do something that has become impossible or completely impractical from the point of view of the original intent of the contracting parties as a result of some supervening circumstance. Such an eventuality leads to the frustration of the contract as provided under section 56 of the 9 1954 SCR 310 10 AIR 1968 522 paragraph 7 11 MANU/DE/3425/2009 32 Contract Act. But in the present case there is no need for any recourse to section 56 of the Contract case because the inter-connect agreement itself provides for the dissolution of the contact in such an event.
Let us briefly recapitulate the basic facts of the case. Unitech lost its licences as those were quashed by the Supreme Court. The loss of the licences denuded Unitech of the competence to be in any agreement with BSNL. In other words the Supreme Court decision knocked off the very basis of the agreement and it triggered of the termination of the licence as stipulated in clause 8.2.1 of the 20 agreement. As result of the termination of the licence it became legally impossible for Unitech to continue to maintain and operate the ports it had got installed at BSNL's exchanges. It needs also to be kept in mind that over this entire chain of events Unitech had completely no control.
In light of the discussions made above we fail to see any application of clause 3.5.4 of the inter-connect agreement and find it difficult to sustain the impugned demand by BSNL for payment of cost of removal of the ports.
We are also unable to appreciate the reliance placed by Ms. Dhir on clause 8.2.3 of the agreement. That clause deals with liabilities or obligations that might have accrued prior to termination of the agreement. In the present case no liability has accrued prior to the termination of the licence but the cessation of capacity and removal of ports are the result of the termination of licence."
Then making it clear that the decision would not apply to a case where cancellation of the licence is for a reason attributable to the licensee, the Tribunal observed:
"But before closing the record of the case it is important to say that the decision in this case is primarily based on the finding that the reason that caused the termination of the inter-connect agreement, namely the quashing of Unitech's licences by the Supreme Court was a circumstance over which the licence-holder had no control. But a party to the inter-connect agreement may lose its licence under section 4 of the Indian Telegraph Act for several reasons. Some of the reasons may be directly attributable to the licence-holder, for 33 instance nonpayment of the annual licence fee or committing beach of the terms of the licence and thereby forcing the licensor (the central government) to cancel the licence. Such a case would be a case of self induced frustration and in such cases the plea of frustration would not be sustainable. In Ganga Saran Vs. Ram Charan Ram Gopal10 Justice Fazal Ali speaking for the Supreme Court observed: "Clearly, the doctrine of frustration cannot avail a defendant when the non-performance of the contract is attributable to his own default". Again in Bhoothalinga Agencies Vs. 10 [1952 SCR 36] 22 VTC Poriaswami Nadar 11 the Supreme Court recognized the concept of self induced frustration, and held that: "the doctrine of frustration cannot apply where the event which is alleged to have frustrated the contract arises from the act or election of a party". The loss of licence for any reason attributable to the licence holder would equally terminate the inter-connect agreement as provided under clause 8.2.1 but that would impact the provisions of the inter-connect agreement between the licence-holder and BSNL quite differently and in such a case the present decision shall have no application."
In course of hearing of the case we repeatedly asked Mr. Banerjee what blame, if any, for the quashing of its licences extends to the petitioner. Mr. Banerjee was unable to show anything from the Supreme Court judgment in Centre for Public Interest Litigation or from the Government records that might show that the petitioner was in any way responsible for the quashing of its licences.
It is thus clear that though the petitioner's UAS licences were declared illegal and quashed, that was not due to any fault by the petitioner but on account of the illegalities committed by the Government in the issuance of those one hundred and twenty two (122) licences. While discussing the provisions of clauses 3.6 and 3.7 of the NIA it is noted above that those clauses deal with a situation where the licence is cancelled/terminated at the instance of the licensor for some 34 fault on the part of the licensee. The quashing of the petitioner's licences in the present case thus clearly does not fall under the two clauses in the NIA. Further, as a result of the quashing of the petitioner's licences its contract with the Government relating to 3G spectrum got discharged on account of frustration, as provided under section 56 of the Contract Act, leaving it open to the petitioner to seek the relief of restitution in terms of section 65 of the Contract Act.
Here it also needs to be noted that after the licences held by the petitioner were quashed, it first asked the Government for permission to assign the 3G spectrum held by it to some other licence-holder, and then to be allowed to use the 3G spectrum through its wholly owned subsidies. The petitioner was thus clearly trying to project the allocation of 3G spectrum in its favour as a separate contract. The Government did not give any response to the requests made by the petitioner and finally withdrew the allocation of 3G spectrum made in its favour. In the withdrawal letter dated 3 July 2014, under the caption 'subject' it was stated as under:
"Sub:-Withdrawal of spectrum in 2.1 GHz Band earmarked to M/s. S Tel in Himachal Pradesh, Bihar and Orissa service areas subsequent to quashing of UAS Licenses by Hon'ble Supreme Court vide their judgement dated 02.02.2012".
(emphasis added) 35 The Government thus, did not see the allocation of 3G spectrum as a separate contract but clearly saw it as part of the licence agreement that could not sustain following the quashing of the licences by the Court.
Even if the allocation of 3G spectrum is objectively viewed as a separate contract, its performance was dependent upon the survival of the licence agreement and once the licences were quashed the performance of the contract concerning 3G spectrum became impossible. Mr. Banerjee, as noted above had sought to bring in the principle of severability of contracts and had contended that clause 23.7 (that was inserted in the petitioner's UAS licence after allocation of 3G spectrum to it) was a complete code for dealing with 3G spectrum. But it is no one's case that clause 23.7 survived notwithstanding the quashing of the licence by the Supreme Court.
The contract thus got discharged through frustration under section 56, calling for restitution as provided under section 65 on the Contract Act.
In this fact situation we fail to see why the Government should sit over the petitioner's money paid as price for the spectrum. More so, as after withdrawing the spectrum from the petitioner, the Government admittedly put the spectrum again to auction and allocated it to someone else, realising full spectrum price from 36 the next allottee. The only just and fair and reasonable course for the Government is to refund the spectrum price paid by the petitioner.
We may pause here to ponder why the Government appears reluctant to recognise this as a case of frustration of contract, obliging it to refund the money received from the petitioner for allocation of 3G spectrum. Why a case that presents the classic features of a claim for restitution, following the discharge of contact through frustration should evoke any serious debate over the Government's liability to return the money that it had received from the licensee? The answer perhaps lies in the fact that this case presents a somewhat unusual inter-face between the private law and the public law. The discharge of contract through frustration, leading to a claim for restitution are concepts belonging to the private law of Contract whereas the declaration of illegality and quashing of licences took place in a public law proceeding . And this possibly makes the claim of the petitioner seemingly odd. But there are decisions of the Supreme Court where restitution is directed in a public law setting.
In Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh and Ors.12, a Bench of the Supreme Court comprising Hon'ble Mr. Justice G. S. Singhvi and Hon'ble Mr. Justice A. K. Ganguly(the very same judges who delivered the Court's decision in Centre for Public Interest Litigation and Ors. 12
(2011) 5 SCC 29 37 Vs. Union of India (UOI) and Ors. found and held that the allotment of 20 acres land by the Government of Madhya Pradesh in favour of Shri Kushabhau Thakre Memorial Trust / Shri Kushabhau Thakre Memorial Training Institute was made in contravention of the Article 14 of the Constitution and on political considerations and the modification of Bhopal Development Plan and change of land user was ultra vires the mandate of Section 23 A of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973. The court, accordingly, held the allotment illegal and quashed it, but, at the same time, directed the State Government to refund the amount deposited by the allottee within a period of 15 days from the date of the judgment. In the operative part, contained in para 83 of the judgment, it was directed as under:
"83. In the result, the appeal is allowed. The impugned order of the Division Bench of the High Court is set aside and the writ petition filed by the appellant is allowed. The allotment of 20 acres land to respondent No.5 is declared illegal and quashed. Notifications dated 6.6.2008 and 5.9.2008 issued by the State Government under Section 23-A(1)(a) and (2) are also quashed. Commissioner, Town and Country Planning, Bhopal is directed to take possession of the land and use the same strictly in accordance with the Bhopal Development Plan. The State Government is directed to refund the amount deposited by respondent No.5 within a period of 15 days from today."
In Akhil Bhartiya Upbhokta Congress, the allottee was clearly a beneficiary of the wrong doing of the State and the taint of the allotment clearly attached to it. Nevertheless, following the quashing of allotment, the Court directed restitution. 38
The present case stands on a stronger footing in that, as repeatedly noted above, no taint or blame for quashing of its licences attaches to the petitioner.
We, thus, find support for the view taken by us in this case from the Supreme Court decision in Akhil Bhartiya Upbhokta Congress.
For the reasons discussed above, this petition is allowed and the government is directed to refund to the petitioner the spectrum price of Rs. 337.67 crores with interest @ 8% from the date of withdrawal of the spectrum till the time of payment.
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(AftabAlam) Chairperson .......................
(Kuldip Singh) Member .........................
(B.B.Srivastava) Member sks&nc