IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : TRAI ACT, 1997 WP(C) 617/2013 & CM No.1167/2013 (interim relief) DATE OF ORDER : 13.03.2013 IDEA CELLULAR LIMITED & ANR....Petitioners Through: Mr. Maninder Singh, Sr. Advocate with Mr.Gopal Jain, Mr.Ajay Bhargava, Mr. Aseem Chaturvedi and Mr. Ankur Sood, Advocates versus UNION OF INDIA...Respondent Through: Mr. Rajeeve Mehra, ASG with Ms. Maneesha Dhir, Mr. K.P.S. Kohli, Mr. Abhishek Kumar and Mr V. Singh, Advocates CORAM: HON'BLE MR. JUSTICE RAJIV SHAKDHER 1. On 08.02.2013, accommodation had been sought on behalf of the respondent by the learned ASG to enable the respondent to move the Supreme Court for seeking clarification of order dated 27.08.2012 passed in WP (C) 423/2010. This situation arose as the learned ASG took an objection to this court proceeding further in the matter, in view of the aforementioned order of the Supreme Court dated 27.08.2012. Accordingly, the matter was renotified for 21.02.2013. 2. On 21.02.2013, a further accommodation was sought by the learned ASG. In view of the request made, the matter was adjourned to today i.e., 13.03.2013. 3. At the hearing held today, I was informed by the learned ASG that an interlocutory application being: IA No.17/2013 was filed in WP(C) 423/2010, to seek clarification. It is submitted by the learned ASG that the said interlocutory application was disposed of, by the Supreme Court, with the observation to the effect that in view of orders dated 02.02.2012, 24.04.2012 and 27.08.2012; which were self explanatory, no clarification was required.
4. Accordingly, counsels for parties proceeded to place before me, their respective stands in the matter vis-à-vis which relief is prayed for in CM No.1167/2013. The petitioners were led by Mr. Maninder Singh, Sr. Advocate, while the respondent was represented by Mr. Rajeeve Mehra, the learned ASG. 5. Briefly, it was the case of the petitioners that they had been constrained to move the court in view of the unfair and illegal manner by which the respondent had attempted to introduce a condition in the Letter of Intent (in short LOI) dated 11.01.2013. It was asserted that the introduction of the impugned condition was surreptitious and almost by the back-door, while the dispute with respect to the very same issue was pending adjudication before a Committee appointed by the respondent pursuant, to the order of this court. The impugned condition, qua which, the petitioners are aggrieved is condition no.6 incorporated in the LOI dated 11.01.2013. 5.1 In substance, condition no.6 prohibits the LOI holders i.e., the petitioners from giving effect to the Inter-Circle Roaming (in short ICR) arrangement they have in place with those providing 3G services. The petitioners submit that, the dispute with regard to the 3G ICR arrangement is presently, as indicated above, pending adjudication before a Committee appointed by the respondent, pursuant to the order of the Division Bench of this court dated 20.12.2012 passed in WP (C) 7189/2011. The petitioner no.1 has, accordingly, been issued a show cause notice in respect of ten (10) service areas by the said Committee, out of which five (5) service areas, namely, Tamil Nadu, Kolkata, West Bengal, Assam and North East are covered by the impugned condition no.6 of LOI dated 11.01.2013. The petitioners submit that a reply to the said show cause notice has been filed and is pending adjudication. 5.2. It is the case of petitioner no. 1 that it was declared a successful bidder in the 2G auction, which was held pursuant to the judgment of the Supreme Court dated 02.02.2012 passed in WP (C) 423/2010. By virtue of the said judgment of the Supreme Court, all 2G licenses were cancelled. The auction, in which, petitioner no.1, has been declared successful, was held pursuant to the said judgment of the Supreme Court. It is contended that the Notice Inviting Applications (in short NIA) in respect of 2G auction did not advert to any such aspect, which is now sought to be included by way of condition no. 6 in the LOI dated 11.01.2013. It is further submitted that as a matter of fact, clause 13 of the NIA, clearly suggests that the petitioner no. 1 would be free to provide the very same services which they were providing
under the then existing licenses i.e., licenses which were obtained prior to their cancellation. The petitioners contend that they had an ICR arrangement in place prior to the cancellation of the licenses and holding of the instant auction, and therefore, introduction of the impugned condition no.6 has affected their rights, which is violative of Article 14 and 19(1)(g) of the Constitution of India. 5.3 It was also submitted that, by adopting this methodology, the respondent has become in one sense a judge in its own cause as while the dispute vis-à-vis 3G ICR arrangement is pending adjudication, almost by a sidewind, the respondents have decided the lis in their favour, by introducing the impugned condition no.6 in the LOI dated 11.01.2013. 5.4 To buttress the aforesaid submission, reliance was placed on three interim orders of the TDSAT dated 24.12.2011, 17.01.2010 and 17.2.2012. These orders were passed in a batch of petitions, amongst which, petitioner no.1 s petition filed before the TDSAT was numbered as 520/2011. To be noted, these writ petitions challenged the order dated 23.12.2011, which according to the respondent, in effect, reflects the impugned condition no.6, incorporated in LOI dated 11.01.2013. 5.5 It was submitted that, the respondent challenged the orders of the TDSAT dated 24.12.2011, and 17.02.2012 by approaching this court under Article 226 of the Constitution of India. A Division Bench of this court by an order dated 23.2.2012, dismissed the writ petition alongwith other petition, after taking note of the fact that the services which were sought to be interdicted by virtue of order dated 23.12.2011 had continued since June- July, 2011. The Division Bench further observed that, since TDSAT was in seisin of the matter, no interference was called under Article 226 of the Constitution of India. 5.6 It was pointed out that, thereafter, the TDSAT heard the petitions which were disposed of by two separate judgments of even date i.e., 03.07.2012. While the Chairperson Mr. Justice S.B. Sinha (Retd.) took the view that the communication dated 23.12.2011 deserved to be quashed, the Member TDSAT, sustained the respondent s communication. 5.7 It is contended that, since one of the Telecom Operators i.e., Bharti Tel was issued a show cause notice dated 28.09.2012 which in effect called upon it to stop provision of ICR services; a writ petition came to be filed being: WP (C) 6334/2012. The said writ petition was disposed of, on 03.10.2012. A third party i.e., Reliance Telecommunications Ltd. (in short RCL), assailed the order dated 03.10.2012, by preferring a LPA being: LPA No.838/2012, which got disposed of, by order dated 20.12.2012. It is this
order of 20.12.2012, which requires the respondent to adjudicate the issue of ICR arrangement; albeit qua the 3G auction. 5.8 In sum and substance, it was submitted that, pending such an adjudication, respondent could not have introduced the impugned condition no.6 in the LOI dated 11.01.2013. 6. The learned ASG, on the other hand, submitted that the adjudication pertained to the ICR arrangement qua the 3G auction. The dispute arose out of respondent s order dated 23.12.2011, which had no connection with the impugned condition no.6 obtaining in the LOI dated 11.01.2013. 6.1 It was further contended by the learned ASG that pursuant to a fresh auction conducted qua 2G spectrum, LOI was awarded with conditions stipulated therein. It was his submission that it was completely open to the petitioners to walk away, if the conditions contained in the LOI dated 11.01.2013, were not acceptable to the petitioners. In other words, the petitioners could not dictate to the respondent as to the conditions which it ought to incorporate in the license. 6.2 Mr. Mehra sought to buttress his arguments by placing reliance on clause 13 and 24 of the NIA. 7. Having heard the learned counsels for the parties, what does emerge prima facie, at this stage, is that, a NIA was issued to seek bids for 3G spectrum on 25.02.2010. Petitioner no.1 was one such successful bidder. One of the eligibility criteria to bid in the 3G spectrum auction was that the person concerned should have held a Unified Service Access License (USAL). The note in clause 2 of the USAL, which is extracted hereinafter, apparently, permitted the licensee to enter into mutual commercial agreements for intra service area roaming facilities with other licensed Cellular Mobile Telephone Services Licencees/Unified Service Access Licencees...Note : A Licensee may enter into mutual commercial agreements for intra service area roaming facilities with other licensed Cellular Mobile Telephone Service Licensees / Unified Access Service Licensees. Further, TRAI can also prescribe tariffs/charges for such facilities within the provisions of TRAI Act, 1997 as amended form time to time. 8. Apparently, by virtue of communication 23.12.2011, the respondent instructed petitioner no.1 and other telecom operators who were similarly circumstanced, to stop provision of services with immediate effect in all
such service areas where the said services were being provided under intra service area roaming arrangement i.e., the ICR arrangement. 9. Petitioner no.1 and other similarly circumstanced telecom operators filed petitions with the TDSAT. Petitioner no.1 s petition was numbered as: 520/2011. The TDSAT, vide an interim order dated 24.12.2011, passed in a batch of petitions, which included the petition filed by petitioner no.1, restrained the respondent from taking any coercive measures (qua the petitioners before the TDSAT) vis-à-vis the communication dated 23.12.2011. The interim order was, thereafter, continued by the TDSAT vide orders dated 17.01.2012 and 17.02.2012. 9.1 The respondent sought to assail the orders before the Division Bench of this court, in a batch of writ petitions. The writ petition concerning petitioner no.1/company was numbered as: WP(C) 1085/2012. This batch of writ petitions was dismissed by an order dated 23.02.2012. This left a clear field for TDSAT to decide the main petition. Notably, the interim orders passed by the TDSAT were left unaltered. 10. As noted above, the TDSAT, while disposing of the aforementioned petitions, arrived at a split verdict. The Chairperson quashed the respondent s communication dated 23.12.2011, while the Member sustained the said communication. One of the flaws adverted to in the Chairperson s judgment was the non-compliance with principles of natural justice by the respondent. 10.1 One of the operators i.e., Bharti Airtel Ltd. approached this court by way of a writ petition being: WP(C) 6334/2012, when a show cause notice dated 28.09.2012 was issued to it by the Department of Telecommunications. 10.2. The said writ petition was disposed of by me, by an order dated 03.10.2012, by issuing the following agreed directions:-..(i) The petitioner would file a reply to the impugned show cause notice dated 23.12.2011. On receipt of the reply, the concerned authority will adjudicate upon the issues raised before it, after according the petitioner, through its representative, a hearing in the matter. (ii) The petitioner, however, shall file with the adjudicating authority, a list of its new customers as well as remuneration received in respect of the services in issue. (iii) Pending the adjudication, the respondent will not take any coercive measures against the petitioner.
(iv) In case the adjudication results in an order, which is adverse to the interest of the petitioner, it will have liberty to take recourse to a remedy, which may be available to it in law 10.3 A third party i.e., RCL assailed the order dated 03.10.2012, before the Division Bench, by way of a Letter Patent Appeal being: LPA No.838/2012. The said entity, i.e., RCL appeared to be aggrieved by that part of the direction whereby the respondent had been restrained from taking any coercive measures in view of the agreement arrived at between Bharti Airtel Ltd. and D.O.T. In paragraph 6 of its order, the Division Bench noted that dehors the consent order of 03.10.2012, which was impugned in the appeal before it, DOT was otherwise restrained by interim orders of the TDSAT i.e., orders dated 24.12.2011, 17.01.2012 and 17.02.2012. Since, a split verdict was rendered by the TDSAT, the DOT tried to cure the defect of non-compliance with the principles of natural justice, as was noted by the Chairman, TDSAT in his order of 03.07.2012, by issuing a show cause notice dated 28.09.2012. In this background, the Division Bench disposed of the LPA by directing the respondent to constitute a Committee for adjudication of show cause notice dated 28.09.2012. 11. It is not disputed before me that, the Committee is seized of the matter. Therefore, having regard to the fact that the principal issue with regard to ICR arrangement is still at large, in a manner of speaking, a prima face case has been established, at least at this stage, for grant of interim protection. In this behalf, I am also fortified by the fact that, when queries were raised for ICR arrangement vis-à-vis 3G spectrum, the respondent appears to have answered the queries in a manner which gave the querist every reason to believe that USAL holders, who did not have 3G spectrum could have an ICR arrangement on 3G networks of other USAL holders in the same licensed area. In this regard, my attention was drawn to answers of the respondent to query no.48, 114 and 230. 12. This apart, the petitioners before me have set up a case that, even the balance of convenience lies in their favour, as a huge amount of financial investment was made at the time of participation in the 2G auction. The petitioners claim that, if condition no.6 of the LOI dated 11.01.2013, is triggered at this stage, it would deprive them from offering 3G services through existing ICR arrangement to nearly 7.7 million mobile users in service areas of Tamil Nadu (including Chennai), West Bengal, Assam, Kolkata and North East.
12.1 Therefore, the argument of the learned ASG, that the petitioners are at liberty not to accept the terms offered in the LOI dated 11.01.2013, cannot be accepted at least at this stage. Contrary to what the learned ASG has submitted, in my view, prima facie clause 13 of the NIA does seem to indicate that petitioner no. 1 and those who are similarly circumstanced could continue to offer services which they offered under USAL prior to their cancellation; which included the ICR arrangement. 13. In view of the fact, that in any event, the issue with regard to the ICR arrangement is under consideration of the Committee appointed by the respondent, albeit qua 3G spectrum, it is deemed fit to stay the operation of condition no.6 contained in the LOI dated 11.01.2013 till the next date of hearing. It is ordered accordingly. 14. In the meanwhile, the respondent will be at liberty to file its counter affidavit/reply within a period of four weeks from today. Rejoinder thereto, if any, be filed before the next date of hearing. 15. List on 15.05.2013. MARCH 13, 2013 Sd/- RAJIV SHAKDHER, J