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12. It is the further submission of the learned senior counsel for the appellants/petitioners that vide NIA dated 25.2.2010, applications were invited for the auctioning of 3G and BWA spectrum. Reliance was placed on Clause 3.5 of the said NIA, wherein 'Spectrum Usage Charges' have been mentioned, wherein it is found that the spectrum usage charge shall be payable by the successful bidders, which is to be calculated as a percentage of the AGR and the said charge will be over and above the spectrum auction price and the applicable licence fees. In the above backdrop, it is submitted by the learned senior counsel, when a spectrum usage charge has been levied by the respondent coupled with the fact that vide letter dated 22.7.99, the respondent having mentioned that the licensee will be required to pay an entry fee and license fee as a percentage of AGR, the stand of the respondent that OTSC can be levied retrospectively does not have legs to stand.

43. Learned senior counsel further 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 has stated that AL and ACL have complied with the guidelines prescribed in NIA. In the above context, it is the contention of the learned senior counsel for the appellants that though TDSAT has held that the appellants herein have not committed any illegality nor violated the merger guidelines and have complied with all the formalities as laid down in the NIA dated 25.2.2010, wherein merger was one of the condition for participating in the 3G and BWA auction, the stand of DoT that the scheme of amalgamation filed by the appellants before this Court for merger, without its approval, is a violation of condition of license cannot hold water. When merger is condition for participating in the 3G and BWA auction, which condition has been laid down by the DoT itself, and the appellants, in the course of fulfilling its part of NIA for the purpose of participating in the auction, have moved this Court with a scheme of amalgamation and have further kept DoT in the loop by their pre-intimation letter dated 15.7.2010 informing DoT about the proposed amalgamation, the stand of the DoT that no prior approval was taken before the filing of the scheme of amalgamation before this Court is in violation of the terms of the license cannot be sustained.

56. It is further contended on behalf of the appellants that the essence of the circular dated 15.9.05 having formed part of the NIA dated 25.2.2010 and having been expressly understood and agreed between the appellants and DoT, it is now not open to the DoT to impose the impugned conditions, which were not part of the terms of the NIA dated 25.2.2010 coupled with the circular dated 15.9.05. Any unilateral alteration of the license agreement, without the consonance of the licensee by imposing conditions, which are alien and that too with retrospective effect and outside the scope of NIA and the circular dated 15.9.05 is impermissible. Further, trying to wriggle out from under by adopting tactics, which are against the rule of law, by imposing conditions for merger, which was mandatory under the NIA, the action of DoT is deprecatable and the said impugned order imposing conditions, which are against the judicial orders, 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).

75. Insofar as the contention of the appellants that merger of the two licenses into one license is a mandatory condition imposed by DoT vide its circular dated 15.9.05 and NIA dated 25.2.2010 and, therefore, approval is automatic and for grant of the said approval, DoT cannot impose onerous conditions, which is against the circular and NIA is concerned, it is the submission of the learned Addl. Solicitor General that for certain irregularities committed by the appellants, one of which being that the appellants, without reference to DoT have merged ACL with AL and, thereby, the name of ACL was removed from the rolls of the Registrar of Companies, which is in violation of the license agreement, show cause notice was issued and after hearing the parties, the company was directed to pay a fine of Rs.10 Crore, whereinafter AL approached the Company Court to have ACL restored in the rolls of the Registrar of Companies. Subsequent to the order of TDSAT relating to merger, DoT had permitted the merger of the companies on certain conditions, one of which condition was the payment of OTSC of the transferor company, viz., ACL.