JUDGMENT

Manmohan, J. Company Applications No. 578-579/2011 have been filed by the Department of Telecommunication (in short `DOT') under Rules 6 and 9 of the Companies (Court) Rules, 1959 for recall and stay of this Court's (Signer's identity unknown) Signed by dhc Time: 2011.07.04 16:10:19 +05'30' Reason: Location: order dated 5th February, 2010 by virtue of which amalgamation of Spice Communication Limited (for short `Spice') with Idea Cellular Limited (for short `Idea') was allowed.

2. Upon the present applications being mentioned before the Division Bench, the matter was directed to be listed before this Court on 30th March, 2011. On the said date, this Court passed the following order:

"'Co. Appl. 578/2011 in Co. Pet. 403/2009

Mr. A.S. Chandhiok, learned ASG has drawn my attention to the fact that the Ministry of Telecommunication vide its letters dated 07th January, 2010 (page 60) and 18th January, 2010 (page 63) of the present application, had rejected the application of Amalgamation of M/s. Spice Communication Limited with M/s. Idea Cellular Limited.

Mr. Chandhiok further submits that these facts were not brought to the notice of the Court on 28th January, 2010 when this Court had reserved the judgment in the present case.

Issue notice to non-applicants by all modes including dasti, returnable for 25th April, 2011.

Co. Appl. 579/2011 in Co. Pet. 403/2009

Issue notice to non-applicants by all modes including dasti, returnable for 25th April, 2011.

Keeping in view the aforesaid, the operation of order dated 05th February, 2010 is stayed till the disposal of the present application"

3. Thereafter Company Application No. 611/2011 was filed by the petitioner-companies namely, Spice and Idea seeking vacation of the aforesaid order dated 30th March, 2011. Keeping in view the urgency in the matter, this Court, with consent of parties, decided to finally hear all the aforesaid applications.

4. Briefly stated the relevant facts of the present case are that both the petitioner-companies are telecommunication companies which have been granted various Unified Access Services Licence Agreements (for short `licences') for different areas on terms and conditions mentioned therein. The said licences have been issued under Section 4 of the Telegraph Act, 1885. The relevant clauses of a sample Licence are reproduced hereinbelow:

"1. Ownership of the LICENSEE Company...

1.3 The merger of Indian companies may be permitted as long as competition is not compromised as defined in condition 1.4 (ii).

1.4 The LICENSEE shall also ensure that:

xxx xxx xxx xxx

6. Restrictions on `Transfer of Licence'

6.1 The LICENSEE shall not, without the prior written consent as described below of the LICENSOR, either directly or indirectly, assign or transfer this LICENCE in any manner whatsoever to a third party or enter into any agreement for sub- Licence and/or partnership relating to any subject matter of the LICENCE to any third party either in whole or in part i.e. no sub-leasing/partnership/third party interest shall be created.

Provided that the LICENSEE can always employ or appoint agents and employees for provision of the service.

6.2 Intra service area mergers and acquisitions as well as transfer of licences may be allowed subject to there being not less than three operators providing Access Services in a Service Area to ensure healthy competition as per the guidelines issued on the subject from time t