UNION OF INDIA AND ANR. v. ASSOCIATION OF UNIFIED TELECOM SERVICE PROVIDERS OF INDIA AND ORS.

"By this batch of petitions the Association of Unified Telecom Service Providers of India, Cellular Operators F Association of India and some individual Telecommunication Service Providers are questioning the validity of the definition of Adjusted Gross Revenue (AGR) in the licenses given to various telecom service providers."

Finally, in the operative part of the order dated 07.07.2006, the G Tribunal has directed as follows:

"Apart from the principal qLoestion whether the State Government can include the gross income of the licensee from non-licensed activity in the AGR; the petitioners have H

708 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.

A also challenged individually the various components of AGR as enumerated in the licence.

In view of the fact we have come to the conclusion that there has not been an effective consultation with the TRAI which is mandatory under the TRAI Act, we think we should B not further delve into the exercise of finding out which component of the AGR, as defined by the Government in the conditions of licence, deserves to be retained and which component which the petitioners contend is not derived from the licensed revenue of the licensee should c be excluded at this stage. We think it more appropriate that the matter should be remanded to the TRAI which is the 3rd Respondent herein, before whom the Go-.rernment should produce the material relied by it while rejecting TRAl's recommendation so that TRAI can consider the D same and send its conclusions to this Tribunal and thereafter, this Tribunal will have the benefit of a comprehensive recommendation of the TRAI after considering the materials relied upon by the Government. While forming its conclusions the TRAI shall hear the E Government as well as the licensees and consider the materials that may be placed before it by either side. In this process it is not necessary for the TRAI to hold fresh consultative proceeding unless it thinks necessary. During this proceeding before the TRAI the petitioners shall place F before it their contentions in regard to the various components of AGR which they have challenged before this Tribunal and the TRAI after hearing the Government on this issue also, send its reco.mmendations to this Tribunal preferably within three months of the receipt of this order. G Further, while considering the issue now remitted to the TRAI, the TRAI will bear in mind our finding in regard to the inclusion in gross revenue of the licensee revenue derived from non-licensed activities ...... " H

UNION OF INDIA v. ASSOCIATION OF UNIFIED TELECOM 709

SERVICE PROVIDERS OF INDIA [A.K. PATNAIK, J.]

Thus, the Tribunal in its order dated 07.07.2006 has not just decided a dispute on the interpretation of Adjusted Gross Revenue in the license, but has decided on the validity of the definition of Adjusted Gross Revenue in the license. As we have already held, the 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 the license agreement. Hence, the order dated 07.07.2006 of the Tribunal in so far as it decides that revenue realized by the licensee from activities beyond the license will be excluded from Adjusted Gross Revenue dehors the definition of Adjusted c Gross Revenue in the license agreement is without jurisdiction and is a nullity and the principle of res judicata will not apply. In Chandrabhai K. Bhoir and Others vs. Krishna Arjun Bhoir and Others (supra) this Court relying on Chief Justice of A.P. vs. L. V.A. Dixitulu [(1979) 2 SCC 34, Union of India vs. D Pramod Gupta [(2005) 12 SCC 1] and National Institute of Technology vs. Niraj Kumar Singh [(2007) 2 SCC 481] has held:

"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".

We accordingly hold that the order dated 07.07.2006 of the Tribunal was not binding on the Union of India even in those cases in which the Union of India did not file any appeal against the order dated 07.07.2006 before this Court.

42Copy pinpoint42. The last substantial question of law which we have to decide is whether the licensee can challenge the computation of Adjusted Gross Revenue and if so at what stage and on what grounds. Section 14 (a)(i) of the TRAI Act, as we have seen, provides that the Tribunal can adjudicate any dispute between the licensor and the licensee. One such dispute can be that the computation of Adjusted Gross Revenue made by the licensor and the demand raised on the basis of such computation is not H

710 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.

.A in accordance with the license agreement. This dispute however can be raised by the licensee, after the license agreement has been entered into and the appropriate stage when the dispute can be raised is when a particular demand is raised on the licensee by the licensor. When such a dispute B is raised against a particular demand, the Tribunal will have to go into the facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with the license agreement and in particular the definition of Adjusted Gross Revenue in the license agreement c and can also interpret the terms and conditions of the license agreement. We, however, find from the order dated 07.07.2006 that instead of challenging any demands made on them, the licensees have questioned the validity of the definition of Adjusted Gross Revenue in the licenses given to them and the 0 Tribunal has finally decided in its order dated 30.08.2007 as to what items of revenue would be part of Adjusted Gross Revenue and what items of revenue would not be part of Adjusted Gross Revenue without going into the facts and materials relating to the demand on a particular licensee.

43Copy pinpoint43. In the result, we allow these appeals and set aside the impugned order dated 30.08.2007 of the Tribunal. There shall be no order as to costs. CIVIL APPEAL Nos. 2479 of 2008, 1552 of 2009, 7049 of 2010, 7062 of 2010, 7063-7064 of 2010, 7443 of 2010, 7446 F 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, CIVIL APPEALS ARISING OUT OF SLP (C) Nos. 1786-1787 OF 2009 AND CIVIL APPEALS ARISING OUT OF SLP CC) Nos. 6641-6642 G OF 2010:

Leave granted in Special Leave Petitions.

2. In these appeals, different orders of the Tribunal have been impugned. The orders of the Tribunal, which have been impugned, are based on the order dated 30.08.2007 of the

UNION OF INDIA v. ASSOCIATION OF UNIFIED TELECOM 711

SERVICE PROVIDERS OF INDIA [AK. PATNAIK, J.]

Tribunal which we have set aside. The orders impugned in these appeals are, therefore, set aside and the matters are remitted to the Tribunal to pass fresh orders in accordance with law.

3. The appeals stand disposed of accordingly with no 8 order as to costs.

SUPPLEMENTARY ORDER

We have delivered today the judgment in these cases and while answering the last substantial question of law, we have c held that when a particular demand is raised on a licencee, the licensee can challenge the demand before the Tribunal and the Tribunal will have to go into the facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with the license agreement and in particular D the definition of Adjusted Gross Revenue in the 1.icense agreement and can also interpret the terms and conditions of the license agreement.

2. It is stated by Mr. C.S. Vaidyanathan, learned senior counsel for some of the licencees that demands have already· E been raised on them. He submitted that two months' time be granted to the licencees to raise their disputes before the Tribunal and in the meanwhile the demands should not be enforced. F

3. If the demands have been raised, we grant two months' time to the licencees to raise the dispute before the Tribunal against the demands and during this period of two months, the demands will not be enforced. G D.G. Appeals disposed of.