Bharti Cellular Ltd.
Vs. Union of India & Ors. [2010] INSC 818 (5 October 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO.7026 OF 2003 Bharti
Cellular Limited ...Appellant Versus Union of India & Ors. ...Respondents
T.S. THAKUR, J.
1.
This
appeal under Section 18 of the Telecom Regulatory Authority of India Act, 1997
is directed against an order dated 23rd May, 2003 passed by the Telecom
Disputes Settlement Appellate Tribunal, New Delhi, whereby the Tribunal has
dismissed in part the petition filed by the 2 appellant under Section 14
(a)(I) of the Act and upheld the computation of licence fee demanded and
realized by the respondent-Union of India in terms of the Licence Agreement
executed between the parties.
2.
The
appellant-company holds a licence to provide cellular mobile telephone services
for Delhi Metro area. The Licence Agreement executed between the appellant on
the one hand and the Government of India on the other, inter alia, provided for
payment of fixed amount towards licence fee for the first three years of the
licence period. From the fourth year onwards the licence fee payable was to be
on the basis of number of subscribers of the service provider subject to the
minimum stipulated in the agreement. Clause 19 of the Licence Agreement in
particular dealt with this aspect and, inter alia, provided that for the first
three years a lump sum licence fee shall be chargeable annually and that the
year shall be reckoned as the period of twelve months beginning with the date
of commissioning of the services or 3 completion of twelve months from the
date of the signing of the licence whichever is earlier.
3.
The
appellant's case before the Tribunal was that although it had a provisional
operational clearance from the respondent effective from 29th August, 1995 and
an interface/service approval from 26th September, 1995, it could commence
commercial services only from 15th November, 1995 meaning thereby the Licence
Agreement should be deemed to have become operative only from 15th November,
1995. The respondents, however, treated 26th September 1995 i.e. the date when
the interface/service clearance was given as the date of commencement of the
Licence Agreement and computed the licence fee dues, interest, penal interest,
liquidated damages etc. with reference to the said date. The appellant also
questioned the method of computing the number of subscribers for determining
the licence fee payable from the fourth year onwards contending that the term
"subscribers" should be 4 understood to be such as have activated
cellular mobile telephone connection from the appellant and as are currently
activated and used by a person for which bills are issued by the appellant. A
few other disputes were also raised by the appellant in the petition filed on
its behalf. One of them related to the alleged illegality and arbitrary
computation of the advance payment stipulated for the entire quarter as due in
the month of June itself and calculation of the interest and penal interest on
the overdue amount. One other grievance of the appellant was regarding the Unit
Call Rate for the purpose of calculation of the licence fee. It was contended
by the appellant that in terms of the Licence Agreement the rate of Rs.5 lakhs
per 100 subscribers was based on the Unit Call Rate of Rs.1.10. This rate was
revised by the respondent to Rs.6.023 lakhs per 100 subscribers or part thereof
on 30th July 1998 based on the Unit Call Rate of Rs.1.40 prevalent at that
time. Unit Call Rate was then reduced to Rs.1.20 from 1st May, 1999. The
appellant, therefore, claimed that the calculation of the 5 licence fee
payable for the period from 1st May, 1999 to 31st July, 1999 should be on the
basis of the then Unit Call Rate prevalent, namely, Rs.1.20 only.
4.
The
respondent contested the petition on several grounds giving rise to the
following four issues which the Tribunal framed for determination: (i) Whether
the methodology adopted by the Respondent for arriving at the number of
subscribers from the 4th year of the Licence Agreement was in order? (ii)
Whether the Respondent could charge interest on the licence fee payable by the
Petitioner as demanded by the Respondent in letters dated 10th August 1999 and
6th March 2000? (iii) Whether the Petitioner is entitled to the benefit of
reduction in the unit call rate with effect from 1st May 1999 for calculating
the per subscriber licence fee? 6 (iv) Whether the respondent can levy penal
interest on the licence fee from 1st February 2000 till the actual date of
payment?
5.
In
so far as issue No.(i) above is concerned, the Tribunal took the view that the
respondents had clarified to the appellant and other cellular operators that
the basis for calculating the number of subscribers for determining the licence
fee shall be the total figure of IMSI in the Home Location Register. The
Tribunal found that the representation made on the subject by the petitioner-
appellant on 1st April, 1999 was rejected by the respondent on 23rd April, 1999
and the appellant offered a Migration Package on 22nd July, 1999 which, inter
alia, contained a clause that no dispute relating to the Licence Agreement for
the period upto 31st July 1999 shall be raised at any future date. The
appellant gave its unconditional acceptance to the entire Migration package on
27th July, 1999. Having done so, 7 the appellant was not entitled to raise any
issue that related to the pre-migration period.
6.
There
is, in our opinion, no legal infirmity in the view taken by the Tribunal. Once
the petitioner-appellant had specifically and unconditionally agreed to accept
the Migration Package and given up all disputes relating to Licence Agreement
for the period upto 31st July 1999, it was not open to it to turn around and
agitate any such dispute after availing of the Migration Package. A party who
has unconditionally accepted the package cannot after such acceptance reject
the conditions subject to which the benefits were extended to him under the
package. It cannot reject what is inconvenient and onerous while accepting what
is beneficial to its interests. The package having been offered subject to the
conditions that all disputes relating to the Licence Agreement for the period
ending 31st July 1999 shall stand abandoned by the operators there was no room
going back on that representation. 8
7.
Relying
upon the decision of this Court in City Montessori School v. State of Uttar
Pradesh and Ors. 2009 (14) SCC 253, New Bihar Biri Leaves Co. v. State of Bihar
1981 (1) SCC 537 and R.N. Goswain v. Yashpal Dhir AIR 1993 SC 352, this Court
has in Civil Appeal No. 7236 of 2003 - Shyam Telelink now Sistema Shyam
Teleservices Ltd. v. Union of India held that no one can approbate and
reprobate and anyone who has accepted with full knowledge or notice of facts,
benefits under a transaction which he might have rejected or contested, cannot
question the transaction or take up an inconsistent position qua the same. We
have said:
"The maxim qui
approbat non reprobat (one who approbates cannot reprobate) is firmly embodied
in English Common Law and often applied by Courts in this country. It is akin
to the doctrine of benefits and burdens which at its most basic level provides
that a person taking advantage under an instrument which both grants a benefit
and imposes a burden cannot take the former without complying with the latter.
A person cannot approbate and reprobate or accept and reject the same
instrument."
8.
In
the light of the above, the view taken by the Tribunal is legally
unexceptionable.
9.
That
brings us to the second issue formulated by the Tribunal for determination. The
Tribunal has answered this issue in favour of the appellant holding that while
respondent was entitled to recover licence fee together with interest from the
earlier unpaid amounts upto and for the month of July 1999, it was not entitled
to recover both advance quarterly licence fee for July-September 1999 and
revenue-sharing fees for August 1999 and September 1999 in terms of the
Migration Package. This part of the order of the Tribunal has not been assailed
before us by the appellant obviously because the view taken by the Tribunal has
gone in its favour and the matter remitted back for re- working the dues along
with interest by the end of July 1999, keeping in view the observations made by
the Tribunal in para 23 of its order. It is noteworthy that the Government has
also not assailed the said part of the order.
10.
The
third issue which had been taken up by the Tribunal for consideration related
to the Unit Call Rate and the effect of any revision in such rates. Condition
19.1(f) which is relevant in this context reads: "19.1(f): The rate of
Rs.five lakhs per hundred subscribers or part thereof is based on the unit call
rate of Rs.1.10. Fourth year onwards, as defined in clause 19.1(d), the rate of
Rs.five lakhs will be revised based on the unit call rate. The revision will be
limited to 75% of the overall increase in the unit rate during the period
preceding such revisions."
11.
Relying
on the above provisions Tribunal held that even though there is no specific
exclusion of downward revision in the clause extracted above, the limiting of
the revision is confined to increase only. The expression "revision will
be limited to 75% of the overall increase in the unit rate" appearing in
clause 19.1(f) (supra) is indicative of the fact that revision was envisaged
only in the case of increase in Unit Call Rate and not in the case of
fluctuation resulting in a decrease in the said rate. That apart, the Tribunal
has rightly 11 held that the petitioner-appellant had not led any evidence
before it and that the question regarding Unit Call Rate was raised by it at
any stage either before or after the licence was issued for the year 1994 and
that the issue relating to the Licence Agreement could not be agitated being a
pre- migration package.
12.
That
leaves us with issue no.4 formulated by the Tribunal relating to the levy of
interest on the licence fee from 1st January 2000 till actual date of payment.
The Tribunal has taken the view, and in our opinion rightly so, that the
respondents were entitled to recover not only the outstanding licence dues but
also interest due on the same for the period of default. The Tribunal has
rightly held that to the extent condition stipulated a deadline i.e. 31st
January, 2000 it was open to the respondent to charge simple interest on the
overdue amount for keeping the licence valid instead of terminating the same on
the ground of default. 12
13.
In
the totality of the above circumstances, we see no reason to interfere with the
order passed by the Tribunal nor do we see any legal flaw in the directions
issued by the Tribunal for re-working the dues along with interest keeping in
view the observations made in the order under appeal.
14.
There
is no merit in this appeal which is hereby dismissed but without any order as
to costs.
.................................J.
(MARKANDEY KATJU)
.................................J.
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