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(iii) While quashing the grant of the licences, the judgment in CPIL (supra) did not grant any refund of the Entry Fee. The claim for restitution not having been allowed by this Court in CPIL (supra), the appellant cannot seek to do so at this stage;

(iv) After the judgment in CPIL (supra) quashing the UASLs granted to the appellant, the appellant has ceased to be a licensee for the purposes of Section 14(1)(a) of the TRAI Act, which empowers the TDSAT to adjudicate disputes between a licensor and a licensee. The TDSAT did not have jurisdiction under the provisions of Section 14(1)(a). In any event, the TDSAT by its judgment dated 16 September 2015 rejected the appellant’s claim for refund on the ground that it was incompetent to do so, the licences having been quashed by the judgment of this Court. Having moved this Court in the first set of civil appeals, the appellant withdrew the civil appeals on 13 May 2016, though with liberty to move this Court again, if it became so necessary. Thus, in view of the order dated 13 May 2016, the appellant could have only moved this Court and not TDSAT. However, it instituted a Second Telecom Petition before the TDSAT. The TDSAT by its judgment dated 11 December PART B 2018 rejected the second attempt of the appellant for claiming the same relief, since this would essentially amount to a review of the judgment in CPIL (supra). Thus, moving the Second Telecom Petition was not only contrary to Section 14 of the TRAI Act but also in violation of the text and spirit of the order dated 13 May 2016 of this Court; 


                                                                             PART E

E     Jurisdiction of TDSAT


25    The appellant has objected to TDSAT’s conclusion that the appellant’s

remedy does not fall in the contractual realm between itself and the Union of India. Since the public law remedy of restitution was neither claimed before nor granted by this Court in CPIL (supra), the TDSAT went into the genesis of the dispute and consequential reliefs granted by this court. . The TDSAT held that since the challenge was focused on the arbitrary and mala fide actions that were embodied in the policy of allotting 2G spectrum licences, the quashing of the licences was a necessary consequence of the grant of the licences being vitiated. Thus, the TDSAT held that ―a direction for refund [is] outside the purview of the Contract Act and an exercise of Constitutional powers is clearly beyond the authority of this Tribunal [TDSAT] and in that regard the petitioner must approach the Court that quashed its licenses, that is, Supreme Court and seek appropriate reliefs‖. 26 This Court will analyse whether the TDSAT had the jurisdiction to entertain the claim for a refund of the Entry Fee. The TDSAT is an adjudicatory body constituted under the TRAI Act. Initially, the TRAI was empowered to regulate the telecom sector in India and adjudicate upon disputes. The adjudicatory powers of TRAI, specifically with respect to issuing directions to DoT, were placed in issue before the Delhi High Court in Union of India v. Telecom Regulatory Authority of PART E India23. The Delhi High Court held that TRAI did not possess the authority to issue directions to DoT. In order to overcome the effect of this position, the TRAI Act was amended in 2000 and the TDSAT was established. TDSAT’s website24 elaborates on the Statement of Objects and Reasons to the Telecom Regulatory Authority of India (Amendment) Act 2000 and notes:

36 Such practice has been previously followed by the TDSAT. In AUSPI (supra), a two-judge Bench of this Court considered the decision of the TDSAT on the PART E definition of AGR which was upheld by this Court in the exercise of its appellate jurisdiction under Section 18 of the TRAI Act. This Court was called upon to decide whether a substantially similar question can be reagitated before the TDSAT after this Court’s dismissal of the civil appeal against the TDSAT order holding that AGR will include only revenue arising from licensed activities and not revenue from activities outside the licence of the licensee. The Court observed that the TDSAT had jurisdiction, only after specifically noting the order of this Court granting the Union of India specific liberty to allege the issues before the TDSAT. This Court noted:

34...Thus, as per the express language of the order dated 19- 1-2007 [Union of India v. Assn. of Unified Telecom Service Providers of India, Civil Appeal No. 84 of 2007 decided on 19- 1-2007 (SC)] of this Court in Civil Appeal No. 84 of 2007, the Union of India could raise each of the grounds extracted above before the Tribunal. Hence, even if we hold that the order dated 7-7-2006 of the Tribunal got merged with the order dated 19-1-2007 [Union of India v. Assn. of Unified Telecom Service Providers of India, Civil Appeal No. 84 of 2007 decided on 19-1-2007 (SC)] of this Court passed in Civil Appeal No. 84 of 2007, by the express liberty granted by this Court in the order dated 19-1-2007 [Union of India v. Assn. of Unified Telecom Service Providers of India, Civil Appeal No. 84 of 2007 decided on 19-1-2007 (SC)] , the Union of India could urge before the Tribunal all the contentions covered under Grounds 1 to 6 extracted above including the contention that the definition of adjusted gross revenue as given in the licence could not be challenged by the licensees before the Tribunal and will include all items of revenue mentioned in the definition of adjusted gross revenue in the licence.‖ 37 Apart from the above, it must be noted that the appellant made no effort to urge during the course of the submissions before the Court in CPIL (supra) that they should be allowed a refund of Entry Fee in the event that the Court were to quash the process and the award of licences. Significantly, the appellant did not seek the permission of this Court at that stage to reserve their liberties of agitating a claim for refund of Entry Fee in separate proceedings. Besides having such a course of action open to them before the judgment was delivered, the appellants had their remedies open in law even after the decision by seeking liberty of adopting independent PART E proceedings for agitating the refund of the Entry Fee. Not having done this at any stage in, or in connection with, the proceedings relating to the decision in CPIL (supra), the appellant cannot be permitted to do so subsequently. 38 Attempting to get over this hurdle, the appellant urged before this Court that what could have been agitated in the course of the proceedings leading up to the decision in CPIL (supra) can well be agitated in the present proceedings since the coram in both cases would be the Supreme Court and the appellant is now in appeal before this Court against the decision of the TDSAT. Such a course of action would not plainly be open to the appellant since the jurisdiction which has been invoked presently in the civil appeal is the appellate jurisdiction arising out of the decision of the TDSAT to reject the claim for refund of the Entry Fee. The conduct of the appellant indicates that on 13 May 2016, the appellant sought to withdraw the appeals against the order of the TDSAT. The Court had recorded – ―the appellant prays for liberty to withdraw the present appeals and instead approach this Court once again if it becomes so necessary”. The appellant ought to have obtained specific liberty of the Court on 13 May 2016 of pursuing proceedings before the TDSAT, something which is conspicuous by its absence in the order which was passed by this Court. Yet, the appellant chose to move the TDSAT by filing the Second Telecom Petition. The TDSAT noted that the petition was a ―second attempt‖ by the Appellant ―for claiming the same relief‖ which had been sought under the impugned order of the TDSAT. Thus, when the appellant failed in seeking relief on 11 December 2018, it filed an appeal against the order of TDSAT and then PART F moved this Court for restoration of the first set of appeals which was allowed on 7 January 2020. The course of action which has been adopted by the appellant is anything but fair — withdrawing the civil appeals which were instituted against the first order of the TDSAT without obtaining specific liberty or permission to move the TDSAT, instituting a second round of litigation before the TDSAT, and then obtaining a revival of the first set of civil appeals. A party must not be allowed to conduct litigation in this manner. Such a course of action is subject to grave abuse since it lays bare an effort at forum-shopping and selectively deciding where and before whom it would pursue its remedies. It is in this backdrop, that the failure of the appellant to be fair with the Court when it addressed its submissions in the judicial process leading up to the decision in CPIL (supra) must be assessed. For the above reasons we are of the view that the TDSAT has correctly come to the conclusion that the claim by the appellant for refund of the Entry Fee could not have been entertained.