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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, SURYA KANT, VIKRAM NATH, JJ.
Loop Telecom and Trading Limited – Appellant
Versus
Union of India and Another – Respondents
Civil Appeal Nos. 1447-1467 of 2016, Civil Appeal No. 893 of 2019
Decided On : 03-03-2022
| Table of Content |
|---|
| 1. overview of appeals related to entry fee refund. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. arguments regarding refund entitlement and discrimination. (Para 8 , 9 , 10) |
| 3. analysis of the cpil judgment and its implications. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20) |
| 4. discussion on entry fee characteristics and conditions. (Para 21 , 22 , 23 , 24) |
| 5. jurisdiction analysis of tdsat regarding refund claims. (Para 25 , 26 , 27 , 28 , 29) |
| 6. determining restitution claims under contract law. (Para 30 , 31 , 32 , 33 , 34 , 35) |
| 7. evaluation of frustration doctrines and legal outcomes. (Para 36 , 37 , 38 , 39 , 40) |
| 8. principle of pari delicto in restitution claims. (Para 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50) |
| 9. conclusion on the appellant's involvement in the illegal policy. (Para 51 , 52 , 53 , 54 , 55) |
| 10. discussion on the set-off policy and its implications. (Para 56 , 57 , 58) |
| 11. final judgment on appeals regarding entry fee refund. (Para 59 , 60 , 61 , 62) |
JUDGMENT :
DHANANJAYA Y. CHANDRACHUD, J.
| (A) | The Appeals | 3 |
| (B) | Submissions of Counsel | 7 |
| (C) | The CPIL judgment | 22 |
| (D) | The claim for refund of Entry Fee | 31 |
| (E) | Jurisdiction of TDSAT | 34 |
| (F) | The claim founded on frustration and restitution | 50 |
| (G) | The policy of set off | 65 |
| (H) | Conclusion | 69 |
(A) The Appeals
1. These appeals under Section 18 of the Telecom Regulatory Authority of India Act 19971 [“TRAI Act”] arise from the judgments dated 16 September 2015 and 11 December 2018 of the Telecom Disputes Settlement and Appellate Tribunal2 [“TDSAT”]. The appellant claimed a refund of Rs. 1454.94 crores representing the Entry Fee (together with interest) paid by it for 2G licences for twenty-one service areas. By the judgment of this Court in Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1 (“CPIL”), the 2G licences which were granted by the Union of India, including to the appellant, were quashed. The appellant claims to be entitled to the refund of its Entry Fee on, as it contends, “well settled principles of civil, contractual and constitutional law.”
2. The appellant applied for the grant of Unified Access Service Licences3 [“UASL”] or twenty-one service areas on 3 September 2007. A Letter of Intent was issued. The appellant paid the circle wise Entry Fee of Rs. 1.1 crores and furnished a Performance Bank Guarantee and Financial Bank Guarantee for the twenty-one areas. The appellant entered into UASL agreements on 3 March 2008 for the twenty-one service areas with the respondent, which came into effect from 25 January 2008. Among the conditions which were stipulated in the UASL agreements, those governing the duration of the licence and the Entry Fee were in the following terms:
3.1 This LICENCE shall be valid for a period of 20 years from the effective date unless revoked earlier for reasons as specified elsewhere in the document.
[...]
18. FEES PAYABLE
18.1 Entry Fee:
One Time non-refundable Entry Fee of Rs. 1.1 crore has been paid by the LICENSEE prior to signing of this License agreement.”
3. On 2 February 2012, this Court by its judgment in CPIL (supra) declared that the policy of the Union government for allocation of 2G spectrum on a “First Come First Serve” basis was illegal. As a consequence, the UASLs which were granted by the Union government were quashed. On 25 May 2012, the appellant instituted a petition4 [Petition No. 329 of 2012 (“First Telecom Petition”)] before the TDSAT seeking, among other things, a refund of the Entry Fee of Rs. 1454.94 crores, inclusive of interest. The appellant has stated that on 1 June 2012 it shut down its operations after porting out all its subscribers.
4. By its judgment dated 16 September 2015, the TDSAT dismissed the First Telecom Petition holding, inter-alia, that:
The court emphasized that mere acquaintance does not establish conspiracy; evidence must demonstrate active participation in wrongdoing, and the prosecution must establish a prima facie case for leav....
Point of Law : State has suffered loss on account of the fact that initially the project got embroiled in litigation and thereafter SJVNL has not been able to commence the work till date on account o....
Agreements involving government land, known to be illegal, are void ab initio, preventing claims for restitution by parties equally responsible for the illegality.
For applying the maxim actus curiae neminem gravabit it has to be shown that any party has been prejudiced on account of any order passed by the Court.
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