IMPORTANT POINT
Law does not permit a person to both approbate and reprobate.

JUDGMENT

T.S. Thakur, J. —

1. This appeal under Section 18(1) of the Telecom Regulatory Authority of India Act, 1997 is directed against an order dated 9th April, 2003 passed by the Telecom Dispute Settlement and Appellate Tribunal whereby Petition No.24/2001 filed under Section 14(a)(i) read with Section 14A(1) of the Telecom Regulatory Authority of India Act, 1997 has been dismissed. The factual matrix giving rise to the appeal may be summarised at the outset.

2. The appellant-Shyam Telelink Ltd. was granted a licence under the Indian Telecom Act, 1885 on 4th March, 1998 for providing basic telecom services in Rajasthan Circle. A licence agreement was executed between the parties that, inter alia, required the appellant to start commercial operations within twelve months from the date on which the agreement was executed. The appellant’s case before the Tribunal so also before us is that, it was ready to commence commercial operations in the last week of February 1999 and had sought permission of the respondents to do so. Permission was, however, denied on the ground that certain technical deficiencies remained to be removed and certain conditions for the grant of permission remained to be fulfilled. In the meantime the Union of India appears to have offered a Migration Package to all the Telecom Operators in July 1999. Under this package which was offered to the appellant-Shyam Telelink Ltd. on 22nd July, 1999 the fixed licence fee was to stand replaced by a revenue-sharing arrangement w.e.f. 1st August, 1999 subject to the stipulation that atleast 35% of all outstanding dues including interest payable as on 31st July, 1999 and liquidated damages in full is paid by the appellant on or before 15th August, 1999. Migration Package further provided that the company shall have to accept all the conditions stipulated in the package and that all proceedings instituted by the licensee or their associations against the Union of India shall have to be withdrawn.

3. It is not in dispute that the appellant gave an unconditional acceptance to the Migration Package on 22nd July, 1999 nor is it disputed that on 10th August, 1999 the respondent advised the appellant that a sum of Rs.6,74,90,481/- was payable towards outstanding licence fee and interest due thereon apart from a sum of Rs.7.30 crores payable towards liquidated damages that were provisionally determined. The appellant-company was informed that in terms of the Migration Package at least 35% of the total licence fee along with interest amounting to Rs.6,74,90,481/- had to be paid by it before 16th August, 1999 and the balance dues covered by a Financial Bank Guarantee by the 30th November, 1999. The liquidated damages payable by the appellant-company were demanded in full and had to be paid on or before 16th August, 1999.

4. On receipt of the intimation demanding payment of the amounts mentioned above the appellant-company appears to have prayed for waiver of the liquidated damages on the ground that it could not commence commercial operations by the stipulated date on account of certain procedural delay. That prayer was upon consideration turned down with the result that the appellant paid 35% of the outstanding licence fee and interest amounting to Rs.2.36 crores on 16th August, 1999. It also paid the full amount of Rs.7.30 crores towards liquidated damages as demanded by the Government.

5. Commercial operations in Rajasthan were finally started by the appellant-company on 5th June 2000. In March 2001 a demand was raised by the respondent for payment of a further amount of Rs.70 lakhs as liquidated damages for the delay in the commissioning of the service. Aggrieved by the demand of Rs.8 crores towards liquidated damages out of which the appellant had already paid Rs.7.30 crores on 16th August, 1999 the appellant approached the Tribunal for redress. As mentioned earlier the appellant’s case before the Tribunal was that it was ready to commence commercial operations in the la