2011 Supreme(SC) 981

2011 (7) Supreme 633
SUPREME COURT OF INDIA
R. V. Raveendran and A. K. Patnaik, JJ.
Union of India & Anr. — Appellants
versus
Association of Unified Telecom Service Providers of India & Ors. — Respondents
Civil Appeal No. 5059 of 2007
with
Civil Appeal Nos.179-180 of 2008, 363 of 2008, 1229- 1230 of 2008, 2065 of 2008, 2479 of 2008, 1552 of 2009, 3868 of 2009, 7049 of 2010, 7062 of 2010, 7063-7064 of 2010, 7443 of 2010, 7446 of 2010, 7126 of 2010, 7444 of 2010, 7445 of 2010, 9646-9661 of 2010, 2030 of 2011, 2031 of 2011, 2270 of 2011, 3245 of 2011, 5450-5451 of 2011, 311-314 & 317-318 of 2008, Civil Appeal Nos. 8627-8628 OF 2011 (Arising out of SLP (C) Nos. 1786-1787 of 2009) and Civil Appeal Nos. 8625-8626 of 2011 (Arising out of SLP (C) Nos. 6641-6642 of 2010)
Decided on : 11-10-2011

VERY IMPORTANT POINTS
1. Once a licensee has accepted the terms and conditions of a license, he cannot question the validity of the terms and conditions of the license before the Court.
2. An order passed without jurisdiction would be a nullity. It will be a coram non judice and non est in the eye of the law. Principle of res judicata would not apply to such cases.

Headnote:Telecom Regulatory Authority of India Act, 1997 - Sections 11 (1) (a) , 18 - Indian Telegraph Act, 1885- Section 4 -Issuance of telecom licenses to different service providers- Under a new package, option given to licensees to migrate from fixed license fee to revenue sharing fee- Validity of definition of Adjusted Gross Revenue in the license agreement challenged by some of licensees contending that Adjusted Gross Revenue could only relate to revenue directly arising out of telecom operations licensed under Section 4 of Telegraph Act, after adjustment of expenses and write offs and revenues directly not attributable to the licensed telecom activities-However case of Union of India that licensees having unconditionally accepted the migration package and having taken benefit of the same were bound by the terms and conditions of the license agreement and could not be permitted to resile from the same-Order passed by Tribunal rejecting contentions of Union of India-Appeal dismissed- Appeals under Section 18 of TRAI Act against common judgment and order of Telecom Disputes Settlement and Appellate Tribunal-Issue in consideration whether after dismissal of Appeal of Union of India against order dated 07.07.2006 of Tribunal, Union of India could re-agitate the question decided in the order dated 07.07.2006 that Adjusted Gross Revenue would include only revenue arising from licensed activities and not revenue from activities outside the license of the licensee-Held as per the express language of order dated 19.01.2007 Union of India could raise each of the grounds before the Tribunal- Hence, even if it was held that order dated 07.07.2006 of Tribunal got merged with order dated 19.01.2007, by the express liberty granted by Apex Court , Union of India could urge before the Tribunal the contention that definition of Adjusted Gross Revenue as given in the license could not be challenged by the licensee before the Tribunal and would include all items of revenue mentioned in the definition of Adjusted Gross Revenue in the license (Para 26)

        Telecom Regulatory Authority of India Act, 1997 - Sections 11 (1) (a) , 18 - Indian Telegraph Act, 1885- Section 4 - Telecom licenses - Issuance of to different service providers-Appeals under Section 18 of TRAI Act against common judgment and order of Telecom Disputes Settlement and Appellate Tribunal-Issue in consideration whether the TRAI and the Tribunal have jurisdiction to decide whether the terms and conditions of license which had been finalised by Central Government and incorporated in the license agreement including the definition of Adjusted Gross Revenue- Once the licensee had accepted that the license fee would be a percentage of gross revenue which would be the total revenue of the licensee company and had also accepted that Government would take a final decision not only with regard to the percentage of revenue share but also definition of revenue for this purpose, licensee could not have approached Tribunal questioning the validity of the definition of Adjusted Gross Revenue in license agreement -Having accepted the license and availed the exclusive privilege of the Central Government to carry on telecommunication activities, licensees could not have approached the Tribunal for an alteration of definition of Adjusted Gross Revenue in the license agreement- Hence held that TRAI and Tribunal had no jurisdiction to decide on the validity of the definition of Adjusted Gross Revenue in the license agreement and to exclude certain items of revenue which were included in the definition of Adjusted Gross Revenue in the license agreement between the licensor and the licensee. (Paras 31 to 35, 40)

        Telecom Regulatory Authority of India Act, 1997 - Sections 11 (1) (a) , 18 - Indian Telegraph Act, 1885- Section 4 - Principle of res judicata-Applicability of-Issue in consideration whether as a result of the Union of India not filing an appeal against order dated 07.07.2006 of Tribunal passed in favour of some of licensees, said order dated 07.07.2006 had not become binding on the Union of India with regard to the issue that revenue realised from activities beyond the licensed activities could not be included in the Adjusted Gross Revenue- Tribunal had no jurisdiction to decide on the validity of the terms and conditions of the license including the definition of Adjusted Gross Revenue incorporated in license agreement- Hence, order dated 07.07.2006 of Tribunal in so far as it decided that revenue realized by licensee from activities beyond the license would be excluded from Adjusted Gross Revenue dehors definition of Adjusted Gross Revenue in the license agreement was without jurisdiction and was a nullity and principle of res judicata would not apply- Order dated 07.07.2006 of Tribunal was not binding on Union of India even in those cases in which Union of India did not file any appeal against order dated 07.07.2006 before Apex Court (Paras 40, 41)

        Telecom Regulatory Authority of India Act, 1997 -Section 14 (a)(i) - Appeals under Section 18 of TRAI Act against common judgment and order of Telecom Disputes Settlement and Appellate Tribunal –Issue in consideration whether licensee could challenge the computation of Adjusted Gross Revenue and if so at what stage and on what grounds- As per Section 14 (a)(i) of TRAI Act, Tribunal can adjudicate any dispute between licensor and licensee- One such dispute could be that computation of Adjusted Gross Revenue made by licensor and the demand raised on the basis of such computation is not in accordance with the license agreement- This dispute however could be raised by licensee, after license agreement had been entered into and appropriate stage when the dispute could be raised was when a particular demand is raised on the licensee by licensor- When such a dispute is raised against a particular demand, the Tribunal would have to go into facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with license agreement and in particular definition of Adjusted Gross Revenue in license agreement and can also interpret the terms and conditions of the license agreement. (Para 42)

       Facts of the Case :

        A.Present Appeals have been filed under Section 18 of TRAI Act against common judgment and order of Telecom Disputes Settlement and Appellate Tribunal.

        B.Issues that arose for consideration in present appeals were following

        (i) Whether after dismissal of Civil Appeal No.84 of 2007 of the Union of India against the order dated 07.07.2006 of the Tribunal, by this Court by order dated 19.01.2007, the Union of India can re-agitate the question decided in the order dated 07.07.2006 that the Adjusted Gross Revenue will include only revenue arising from licensed activities and not revenue from activities outside the license of the licensee.

        (ii) Whether the TRAI and the Tribunal have jurisdiction to decide whether the terms and conditions of license which had been finalised by the Central Government and incorporated in the license agreement including the definition of Adjusted Gross Revenue.

        (iii) Whether as a result of the Union of India not filing an appeal against the order dated 07.07.2006 of the Tribunal passed in favour of some of the licensees, the said order dated 07.07.2006 had not become binding on the Union of India with regard to the issue that revenue realised from activities beyond the licensed activities cannot be included in the Adjusted Gross Revenue.

        (iv) Whether the licensee can challenge the computation of Adjusted Gross Revenue, and if so, at what stage and on what grounds.

       Findings of the Court :

        A. As per the express language of order dated 19.01.2007 Union of India could raise each of the grounds before the Tribunal. Hence, even if it was held that order dated 07.07.2006 of Tribunal got merged with order dated 19.01.2007, by the express liberty granted by Apex Court , Union of India could urge before the Tribunal the contention that definition of Adjusted Gross Revenue as given in the license could not be challenged by the licensee before the Tribunal and would include all items of revenue mentioned in the definition of Adjusted Gross Revenue in the license.

        B. Once the licensee had accepted that the license fee would be a percentage of gross revenue which would be the total revenue of the licensee company and had also accepted that Government would take a final decision not only with regard to the percentage of revenue share but also definition of revenue for this purpose, licensee could not have approached Tribunal questioning the validity of the definition of Adjusted Gross Revenue in license agreement. Having accepted the license and availed the exclusive privilege of the Central Government to carry on telecommunication activities, licensees could not have approached the Tribunal for an alteration of definition of Adjusted Gross Revenue in the license agreement. Hence held that TRAI and Tribunal had no jurisdiction to decide on the validity of the definition of Adjusted Gross Revenue in the license agreement and to exclude certain items of revenue which were included in the definition of Adjusted Gross Revenue in the license agreement between the licensor and the licensee.

        C. - Tribunal had no jurisdiction to decide on the validity of the terms and conditions of the license including the definition of Adjusted Gross Revenue incorporated in license Agreement. Hence, order dated 07.07.2006 of Tribunal in so far as it decided that revenue realized by licensee from activities beyond the license would be excluded from Adjusted Gross Revenue dehors definition of Adjusted Gross Revenue in the license agreement was without jurisdiction and was a nullity and principle of res judicata would not apply. Order dated 07.07.2006 of Tribunal was not binding on Union of India even in those cases in which Union of India did not file any appeal against order dated 07.07.2006 before Apex Court.

        D.As per Section 14 (a)(i) of TRAI Act, Tribunal can adjudicate any dispute between licensor and licensee. One such dispute could be that computation of Adjusted Gross Revenue made by licensor and the demand raised on the basis of such computation is not in accordance with the license agreement. This dispute however could be raised by licensee, after license agreement had been entered into and appropriate stage when the dispute could be raised was when a particular demand is raised on the licensee by licensor. When such a dispute is raised against a particular demand, the Tribunal would have to go into facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with license agreement and in particular definition of Adjusted Gross Revenue in license agreement and can also interpret the terms and conditions of the license agreement.