13 Reliance Communication V UOI 2016 CalHC s14 TDSAT Any Dispute

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2016 SCC OnLine Cal 3763
In the High Court of Calcutta

(BEFORE DIPANKAR DATTA, J.)
Reliance Communications Ltd. & Ors.

v.
The Union of India & Ors.
Mr. P. Chidambaram, Sr. Advocate, Mr. Jishnu Saha, Sr. Advocate, Mr. Sanjib
Kumar Mal, Advocate, Mr. Sanjay Ginodia, Advocate, Mr. L. Kamath, Advocate, Mr.
Debnath Ghosh, Advocate, Mr. Manoj Kr. Tiwari, Advocate, Mr. Sushovit Dutt
Majumder, Advocate. ………for the petitioners
Mr. Kausik Chanda, Addl. Solicitor General, Mr. Subrata Roy, Advocate. ……for the
respondent
W.P. 482 (W) of 2016
Decided on January 27, 2016
DIPANKAR DATTA, J.:— The first petitioner is engaged in the business of providing
telecom services in India and is a ‘service provider’ within the meaning of clause (j) of
sub-section (1) of section 2 the Telecom Regulatory Authority of India Act, 1997
(hereafter the TRAI Act). It was administratively allocated spectrum in 800 MHz band
in several circles and the licences issued in its favour are valid.
2. The petitioners have impugned in this writ petition: (i) clause 10 of the
Guidelines for Liberalization of Administratively Allotted Spectrum in 800 MHz and
1800 MHz frequency bands (hereafter the guidelines), contained in No. J-
14025/212/2015-CDMA dated November 5, 2015 issued by the Deputy Wireless
Advisor to the Government of India; (ii) a demand notice dated December 22, 2015,
whereby payment had been demanded of One Time Spectrum Charges (hereafter the
OTSC) as a pre-condition for liberalization at a rate higher than an earlier demand
dated March 20, 2013; and (iii) a letter dated January 5, 2016 of the respondent
informing the first petitioner that there is no infirmity in calculation of demand for the
OTSC and regretting the prayer for revising it at the 2012-2013 rates.
3. Upon hearing the parties, this Bench by its order dated January 14, 2016 had
granted interim relief being prima facie of the opinion that the demand for the OTSC
could not have been raised in view of an earlier order dated February 14, 2013 passed
in W.P. 2590 (W) of 2013. The writ petition was made returnable on January 25, 2016
to enable Mr. Chanda, learned Additional Solicitor General representing the respondent
to obtain instructions as well as to advance argument in support of his preliminary
objection that the writ petition is not maintainable before this Court in view of the
provisions of section 14 of the TRAI Act.
4. Mr. Chanda has contended that the first petitioner is a ‘licensee’ and the
respondent a ‘licensor’ within the meaning of clauses (e) and (ea) respectively of sub-
section (1) of section 2 of the TRAI Act, and in terms of section 14 of the TRAI Act, the
Telecom Disputes Settlement and Appellate Tribunal (hereafter the TDSAT) has been
conferred power, inter alia, to adjudicate any dispute between a licensor and a
licensee. It is his contention that section 14 of the TRAI Act provides a forum for
adjudication of the dispute between the first petitioner and the respondent and in view
of existence of such an alternative efficacious remedy, instead of entertaining this
petition under Article 226 of the Constitution the petitioners should be relegated to the
TDSAT which is capable of determining such dispute.
5. Mr. Chanda has relied on the decision of the Supreme Court reported in (2011)
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10 SCC 543 [Union of India and another v. Association of Unified Telecom Service
Providers of India]. He has further relied on the decisions reported in (2007) 7 SCC
517 [Union of India v. Tata Teleservices (Maharashtra) Ltd.] and (2003) 3 SCC 186
[Cellular Operators Association of India v. Union of India] to contend that the TRAI Act
is a self-contained code making provisions for dealing of all disputes arising out of
telecommunication services provided in this country and, therefore, this Bench in
exercising self-restraint ought to decline interference and leave the petitioners to
approach the TDSAT for a decision on their grievance. Finally, reliance has been placed
on a decision of recent origin reported in (2015) 6 SCC 773 [Union of India v. Shri
Kant Sharma] in support of the contention that a writ petition ought not to be
entertained ignoring the original forum and the appellate forum i.e. the Supreme
Court, provided by a statute for redress.
6. Answering the preliminary objection, Mr. Chidambaram, learned senior advocate
representing the petitioners too has relied on the decision in Association of Unified
Telecom (supra).
7. Mr. Chidambaram contended that clause 10 of the guidelines, impugned herein,
has the effect of amending the licence granted in favour of the first petitioner, the
source of power whereof could be traced to clause 5.1 of the licence agreement. He
produced two orders, both dated November 5, 2015 issued by the Government of
India, Ministry of Communications, introducing clauses 42.10 and 43.11 by way of
“amendment of UAS licenses for liberalizing administratively allotted access
spectrum”.
8. Clauses 5.1 of the licence agreement, clause 10 of the guidelines and the
amendment made in the licence, which were placed for consideration, are to the
following effect:
“5. Modifications in the Terms and Conditions of Licence
5.1 The LICENSOR reserves the right to modify at any time the terms and
conditions of the LICENCE, if in the opinion of the LICENSOR it is necessary or
expedient to do so in public interest or in the interest of the security of the State or
for the proper conduct of the telegraphs. The decision of the LICENSOR shall be
final and binding in this regard.”
“10. Payment of One Time Spectrum Charges (OTSC) by the TSPs will continue
to be governed by this Ministry's Order P-11014/19/2008-PP (Pt. I) dated 28th
December 2012 & dated 15th March 2013. In case the spectrum gets liberalized, the
OTSC will be charged upto the date for calculation of charges for liberalizing the
spectrum and the same has to be paid by the licensee. However, if such demand is
pending due to judicial intervention barring any coercive action, a bank guarantee
equal to this amount shall be submitted pending final outcome of judicial process.”
“Appended Clause
The administratively allotted access spectrum may be liberalized as per
guidelines issued by the Government from time to time. Administratively allotted
spectrum in 800 & 1800 MHz bands refers to the spectrum allotted prior to auction
of right to use spectrum in November 2012.”
9. According to Mr. Chidambaram, the impugned clause and the demand raised by
the respondent, which has since been reiterated, are ultra vires section 4 of the Indian
Telegraph Act, 1885, amount to imposition of tax without authority of law and are in
violation of Article 14 of the Constitution and in view of the decision in Association of
Unified Telecom (supra) coupled with the nature of dispute raised by the petitioners in
this writ petition which, inter alia, includes urging the Court to examine the validity of
the terms and conditions incorporated in the licence of a service provider, the TDSAT
lacks jurisdiction to decide such dispute and the petitioners have no other option but
to approach this Court in its writ jurisdiction.
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10. In support of the contention that the TDSAT has no jurisdiction to examine the
validity of the terms and conditions incorporated in the licence of a service provider,
reference was made by Mr. Chidambaram to paragraph 47 of the cited decision and it
was asserted that the TDSAT having no jurisdiction at all, it is the writ Court which, of
necessity, has to be approached by the petitioners to remedy the wrong committed by
the respondent.
11. Whether or not the TDSAT would be empowered to receive a complaint from the
petitioners concerning the dispute that has been canvassed in this writ petition and to
adjudicate the same would have to be decided first. Should this Bench hold that the
TDSAT has the jurisdiction to determine the dispute, it would not be necessary to look
into the merits of the petitioners' claim. This Bench would thus venture to find the
answer.
12. Although “jurisdiction” is a term which constantly engages the attention of a
judge while embarking on an adjudicatory process, it would be useful to travel down
memory lane for understanding what the term really connotes. The decision of the
Supreme Court reported in AIR 1969 SC 823 [Official Trustee, West Bengal v.
Sachindra Nath Chatterjee] provides ample guidance. There, the Court was, inter alia,
called upon to decide while hearing a civil appeal against a judgment and decree of
the second appellate court reversing the judgment and decree of the first appellate
court and restoring the judgment and decree of the trial court, as to whether a learned
judge had the jurisdiction to pass the order dated August 25, 1937 on an originating
summons on the original side of the Calcutta High Court under Chapter XIII of its
Original Side Rules filed by the settlor seeking primarily two reliefs viz. (1) to have the
Official Trustee, Bengal appointed as the Trustee in his place and (2) to empower him
to alter the clause renting to variation of the quantum of interest given to each of the
beneficiaries by a deed inter vivos. On behalf of the appellant it was urged that the
learned judge had jurisdiction over the parties to the application in question as well as
on the subject-matter; hence, the validity of the order made by him could not be
challenged even if it were held that that order was not in accordance with law. In other
words, what could have been complained of was not the lack of jurisdiction on the part
of the Court to make the order in question but that jurisdiction had been exercised
illegally. Moreover, such an attack could not be made against that order in collateral
proceedings. Per contra, it was urged that the learned judge had no jurisdiction to
pass the order in question. The grievance was not that the learned judge exercised his
undoubted jurisdiction illegally but that he had no jurisdiction at all to make the order
in question. The Court upon noticing the rival claims proceeded to hold as follows:
“12. It is plain that if the learned Judge had no jurisdiction to pass the order in
question then the order is null and void. It is equally plain that if he had jurisdiction
to pronounce on the plea put forward before him, the fact that he made an incorrect
order or even an illegal order cannot affect its validity. Therefore, all that we have to
see is whether Ramfry, J., had jurisdiction to entertain the application made by the
settlor.
13. What is meant by jurisdiction? This question is answered by Mukherjee
Acting C. J., speaking for the full bench of the Calcutta High Court in Hirday Nath
Roy v. Ramchandra Barna Sarma, ILR 48 Cal 138 = (AIR 1921 Cal 34 (FB)). At
page 146 of the report ILR (Cal) = (at p. 36 of AIR) the learned Judge explained
what exactly is meant by jurisdiction. We can do no better than to quote his words:
‘In the order of Reference to a Full Bench in the case of Sukhlal v. Tara Chand,
(1905) ILR 33 Cal 68 (FB), it was stated that jurisdiction may be defined to be the
power of a Court to ‘hear and determine a cause, to adjudicate and exercise any
judicial power in relation to it:’ in other words, by jurisdiction is meant ‘the
authority which a Court has to decide matters that are litigated before it or to take
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cognizance of matter presented in a formal way for its decision.’ An examination of

the cases in the books discloses numerous attempts to define the term
‘jurisdiction’, which has been stated to be ‘the power to hear and determine issues
of law and fact’ “the authority by which the judicial officers take cognizance of and
decide causes”; ‘the authority to hear and decide a legal controversy’ “the power to
hear and determine the subject matter in controversy between parties to a suit and
to adjudicate or exercise any judicial power over them”; “the power to hear,
determine and pronounce judgment on the issues before the Court”; “the power or
authority which is conferred upon a Court by the Legislature to hear and determine
causes between parties and to carry the judgments into effect”; “the power to
enquire into the facts, to apply the law, to pronounce the judgment and to carry it
into execution”.
(Emphasis here in) supplied).
Proceeding further the learned Judge observed:
“This jurisdiction of the Court may be qualified or restricted by a variety of
circumstances. Thus, the jurisdiction may have to be considered with reference to
place, value and nature of the subject matter. The power of a tribunal may be
exercised within defined territorial limits. Its cognizance may be restricted to
subject-matters of prescribed value. It may be competent to deal with controversies
of a specified character, for instance, testamentary or matrimonial causes,
acquisition of lands for public purposes, record of rights as between landlords and
tenants. This classification into territorial jurisdiction, pecuniary jurisdiction and
jurisdiction of the subject matter is obviously of a fundamental character. Given
such jurisdiction, we must be careful to distinguish exercise of jurisdiction from
existence of jurisdiction; ‘for fundamentally different are the consequences of failure
to comply with statutory requirements in the assumption and in the exercise of
jurisdiction. The authority to decide a cause at all not the decision rendered therein
is what makes up jurisdiction; and when there is jurisdiction of the person and
subject-matter, the decision of all other questions arising in the case is but an
exercise of that jurisdiction. The extent to which the conditions essential for
creating and raising the jurisdiction of a Court or the restraints attaching to the
mode of exercise of that jurisdiction, should be included in the conception of
jurisdiction itself, is sometimes a question of great nicety, as is illustrated by the
decisions reviewed in the order of reference in (1905) ILR 33 Cal 68 (FB) and Khosh
Mahomed v. Nazir Mahomed, (1905) ILR 33 Cal 352 (FB); see also the observation
of Lord Parker in Raghunath v. Sundar Das, ILR 42 Cal 72=(AIR 1914 PC 129). ….
‘We must not thus overlook the cardinal position that in order that jurisdiction may
be exercised, there must be a case legally before the Court’ and a hearing as well as
a determination. A judgment pronounced by a Court without jurisdiction is void,
subject to the well-known reservation that, when the jurisdiction of a Court is
challenged, the Court is competent to determine question of jurisdiction, though
the result of the enquiry may be that it has no jurisdiction to deal with the matter
brought before it: Rashmoni Dasi v. Gunada Sundari Dasi, 20 Cal LJ 218 = (AIR
1915 Cal 49).” (Emphasis (here in) supplied).
14. Finally the learned Judge quoted with approval the decision of Srinivas
Aiyangar, J., in Thuljaram v. Gopala, 32 Mad LJ 434=(AIR 1918 Mad 1093) wherein
Aiyangar, J., laid down that “if a Court has jurisdiction to try a suit and ‘has
authority to pass orders of a particular kind,’ the fact that it has passed an order
which it should not have made in the circumstances of the litigation, does not
indicate total want or loss of jurisdiction so as to render the order a nullity”.
(Emphasis (here in) supplied).
15. From the above discussion it is clear that before a Court can be held to have
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jurisdiction to decide a particular matter it must not only have jurisdiction to try the
suit brought but also have the authority to pass the orders sought for. It is not
sufficient that it has some jurisdiction in relation to the subject-matter of the suit.
Its jurisdiction must include the power to hear and decide the questions at issue,
the authority to hear and decide the particular controversy that has arisen between
the parties. Therefore the fact that Ramfry, J., had jurisdiction to pass certain
orders either under the Indian Trusts Act, 1882 or under the Official Trustees Act,
1913 or under the Trustees and Mortgagees Powers Act 1866 or under his inherent
power is not conclusive of the matter. What is relevant is whether he had the power
to grant the relief asked for in the application made by the settlor. That we think is
the essence of the matter. It cannot be disputed that if it is held that the learned
Judge had competence to pronounce on the issue presented for his decision then
the fact that he decided that issue illegally or incorrectly is wholly besides the point.
See Ittyavira Mathai v. Varkey Varkey, 1964-1 SCR 495 = (AIR SC 907). Therefore
we have now to see whether the learned Judge had jurisdiction to decide the issue
presented for his determination. The relief prayed for, as seen earlier, was to permit
the settlor to revoke particular clauses in the Trust deed and to authorise him to
alter the quantum of interest given to each of the beneficiaries by a deed inter
vivos. ***”
Ultimately, the Court held that:
“From whatever angle we may examine the validity of the order made by Ramfry,
J., it a clear to us, that the said order was outside the jurisdiction of the learned
Judge. It was not merely a wrong order, or an illegal order, it was an order which he
had no competence to make. It is not merely an order that be should not have
passed but it is an order that he could not have passed and therefore a void order.”
13. Memory refreshed, this Bench proceeds to consider the relevant statutory
provision and its scope and effect on the present dispute.
14. Section 14 of the TRAI Act confers jurisdiction on the TDSAT, inter alia, to
adjudicate any dispute between a licensor and a licensee.
15. The dictionary meaning of the word ‘any’ is ‘one or same or all’. In Black's Law
Dictionary, it is explained that the word ‘any’ has a diversity of meaning and may be
employed to indicate ‘all’ or ‘every’ as well as ‘same’ or ‘one’ and its meaning in a
given statute depends upon the context and subject matter of the statute.
16. The Supreme Court in its decision reported in (2007) 3 SCC 607 : AIR 2007 SC
788 [Associated Indem Mechanical (P) Ltd. v. State of West Bengal], while interpreting
‘any’ in the definition clause of ‘premises’ appearing in the West Bengal Government
Premises (Tenancy Regulation) Act, 1976 held that:
“The opening part of the definition of the word ‘premises’ in Section 2(c)
employs the word ‘any’. ‘Any’ is a word of very wide meaning and prima facie the
use of it excludes limitation (See Angurbala Mullick v. Debabrata Mullick, 1951 SCC
420 : AIR 1951 SC 293 at 297)”.
17. “Any” in the context it has been used in clause (a) of section 14 of the TRAI Act
clearly indicates that it has been used in a wide sense extending from one to all,
admitting no exception.
18. However, the observation of the Supreme Court in Association of Unified
Telecom (supra) relied on by Mr. Chidambaram would fall for in-depth scrutiny of the
precise questions that came up for consideration and how such questions were
addressed.
19. Before proceeding in that direction, this Bench considers it material to quote
certain relevant passages from two other decisions cited by Mr. Chanda.
20. The Supreme Court in Cellular Operators Association (supra) had the occasion
to observe:
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“11. *** As has been stated earlier, the jurisdiction of the Tribunal under Section
14 cannot be held to be a supervisory jurisdiction, in view of the language of the
statute as well as the fact that it is the only forum for redressing the grievance of
an aggrieved party inasmuch as the appellate jurisdiction to this Court is only on a
substantial question of law and the jurisdiction of a civil court for filing a suit is also
ousted. It has already been held by us that the Tribunal has the power to
adjudicate any dispute but while answering the dispute, due weight has to be given
to the recommendation of TRAI, which consists of experts. The Tribunal also
committed yet another error in holding that the jurisdiction of the Appellate
Tribunal cannot be wider than that of the Supreme Court. A bare comparison of the
provisions of Section 14, which confers jurisdiction on the Tribunal and Section 18,
which confers jurisdiction on the Supreme Court, would unequivocally indicate that
the Tribunal has much wider jurisdiction than the jurisdiction of this Court under
Section 18, as this Court would be entitled to interfere only on a substantial
question of law, which arises from the judgment of the Tribunal and not otherwise.
***”
(emphasis added)
21. In Tata Teleservices (supra), the Court held as follows:
“15. The conspectus of the provisions of the Act clearly indicates that disputes
between the licensee or licensor, between two or more service providers which
takes in the Government and includes a licensee and between a service provider
and a group of consumers are within the purview of TDSAT. A plain reading of the
relevant provisions of the Act in the light of the Preamble to the Act and the Objects
and Reasons for enacting the Act, indicates that disputes between the parties
concerned, which would involve significant technical aspects, are to be determined
by a specialised tribunal constituted for that purpose. There is also an ouster of
jurisdiction of the civil court to entertain any suit or proceeding in respect of any
matter which TDSAT is empowered by or under the Act to determine. The civil court
also has no jurisdiction to grant an injunction in respect of any action taken or to be
taken in pursuance of any power conferred by or under the Act. The constitution of
TDSAT itself indicates that it is chaired by a sitting or retired Judge of the Supreme
Court or sitting or a retired Chief Justice of the High Court, one of the highest
judicial officers in the hierarchy and the members thereof have to be of the cadre of
Secretaries to the Government, obviously well experienced in administration and
administrative matters.
16. The Act is seen to be a self-contained code intended to deal with all disputes
arising out of telecommunication services provided in this country in the light of the
National Telecom Policy, 1994. This is emphasised by the Objects and Reasons also.
17. Normally, when a specialised tribunal is constituted for dealing with disputes
coming under it of a particular nature taking in serious technical aspects, the
attempt must be to construe the jurisdiction conferred on it in a manner as not to
frustrate the object sought to be achieved by the Act. In this context, the ousting of
the jurisdiction of the civil court contained in Section 15 and Section 27 of the Act
has also to be kept in mind. The subject to be dealt with under the Act has
considerable technical overtones which normally a civil court, at least as of now, is
ill equipped to handle and this aspect cannot be ignored while defining the
jurisdiction of TDSAT.”
(emphasis added)
22. Turning attention to the decision in Association of Unified Telecom (supra),
three substantial questions of law that the Court formulated are traceable in paragraph
31. The second question being relevant is quoted below:
“(ii) Whether TRAI and the Tribunal have the jurisdiction to decide the validity of
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the terms and conditions of the licence which had been finalised by the Central
Government and incorporated in the licence agreement including the definition of
adjusted gross revenue.”
23. The discussions and the conclusion in relation thereto are found in paragraphs
36 to 55 of the decision.
24. In paragraph 40, the Court held that “once a licence is issued under the proviso
to sub-section (1) of Section 4 of the Telegraph Act, the licence becomes a contract
between the licensor and the licensee”, and consequently, “the terms and conditions
of the licence including the definition of adjusted gross revenue in the licence
agreement are part of a contract between the licensor and the licensee”.
25. Paragraph 47 of the decision, referred to by Mr. Chidambaram, reads as follows:
“47. A dispute between a licensor and a licensee referred to in Section 14(a)(i) of
the TRAI Act, therefore, is a dispute after a person has been granted a licence by
the Central Government or the Telegraph Authority under sub-section (1) of Section
4 of the Telegraph Act and has become a licensee and not a dispute before a person
becomes a licensee under the proviso to sub-section (1) of Section 4 of the
Telegraph Act. In other words, the Tribunal can adjudicate the dispute between a
licensor and a licensee only after a person had entered into a licence agreement and
become a licensee and the word ‘any’ in Section 14(a) of the TRAI Act cannot widen
the jurisdiction of the Tribunal to decide a dispute between a licensor and a person
who had not become a licensee. The result is that the Tribunal has no jurisdiction to
decide upon the validity of the terms and conditions incorporated in the licence of a
service provider, but it will have the jurisdiction to decide ‘any’ dispute between the
licensor and the licensee on the interpretation of the terms and conditions of the
licence.”
26. A plain reading of the aforesaid extract, more particularly the first part of the
last sentence would seem to indicate that “any” in section 14(a) of the TRAI Act ought
to be given a restricted meaning i.e. a dispute arising out of a challenge to the validity
of the terms and conditions incorporated in the licence of a service provider is beyond
the TDSAT's adjudicatory powers.
27. Incidentally, it may be placed on record that Mr. Chidambaram did not disagree
with the Bench that paragraph 47 per se does not bear out the logic behind such
observation.
28. Be that as it may, the last sentence of paragraph 47 or for that matter the
whole of it need not be read like a statute. The observation has to be read in the light
of the other discussions that follow forming part of the decision, and in this regard
reference may be made to paragraph 55 thereof which reads:
“55. On the other hand, we find from the long line of decisions in Har Shankar v.
Excise & Taxation Commr., (1975) 1 SCC 737, Govt. of A.P. v. Anabeshahi Wine &
Distilleries (P) Ltd., (1988) 2 SCC 25, Excise Commr. v. Issac Peter, (1994) 4 SCC
104, State of Orissa v. Narain Prasad, (1996) 5 SCC 740, State of M.P. v. KCT
Drinks Ltd., (2003) 4 SCC 748, State of Punjab v. Devans Modern Breweries Ltd.,
(2004) 11 SCC 26, Shyam Telelink Ltd. v. Union of India, (2010) 10 SCC 165, and
in Bharti Cellular Ltd. v. Union of India, (2010) 10 SCC 174, that this Court has
consistently taken a view that once a licensee has accepted the terms and
conditions of a licence, he cannot question the validity of the terms and conditions
of the licence before the court. We, therefore, hold that TRAI and the Tribunal had
no jurisdiction to decide on the validity of the definition of adjusted gross revenue
in the licence agreement and to exclude certain items of revenue which were
included in the definition of adjusted gross revenue in the licence agreement
between the licensor and the licensee.”
29. The aforesaid extract and the observation in paragraph 47 have to be read
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together bearing in mind the facts of the case and the submission that was raised by
learned senior counsel appearing before the Court on behalf of the appellant Union of
India. It would appear from paragraph 4 that after receipt of a letter dated July 22,
1999, “some of the service providers applied and took new licenses which provided
that the licensee will have to pay a certain percentage of the gross revenue as licence
fee annually” and that after “the Government of India, Ministry of Telecommunications
finally took the final decision on the definition of adjusted gross revenue, the licence
agreement was amended and signed by the licensees and the amended licence
agreement was effective from 1-8-1999.” Paragraph 6 records that long four years
later, some of the licensees questioned the validity of the definition of adjusted gross
revenue in the licence agreement before the TDSAT, which was countered by the Union
of India by pleading in its reply that “the licensees having unconditionally accepted
the migration package and having taken the benefit of the same are bound by the
terms and conditions of the licence agreement and cannot be permitted to resile from
the same”. Paragraph 11 of the decision records the Union of India having taken a
specific ground in its memorandum of appeal that the TDSAT had “no jurisdiction or
power to examine the correctness of the terms of the license which had been
unconditionally accepted and acted upon by the licensees”.
30. In Har Shankar (supra), while dealing with the preliminary objection to the
maintainability of the writ petitions, the Court observed:
“15. Learned counsel for the respondents raised a preliminary objection to the
maintainability of the writ petitions filed by the appellants and to the grant of reliefs
claimed by them. He contends that such of the appellants who offered their bids in
the auctions did so with a full knowledge of the terms and conditions attaching to
the auctions and they cannot, by their writ petitions, be permitted to wriggle out of
the contractual obligations arising out of the acceptance of their bids. This objection
is well-founded and must be accepted.”
“21. *** Analysing the situation here, a concluded contract must be held to have
come into existence between the parties. The appellants have displayed ingenuity
in their search for invalidating circumstances but a writ petition is not an
appropriate remedy for impeaching contractual obligations.”
31. Relying on the aforesaid decision, it was held in Narain Prasad (supra) as
follows:
“21. *** A person who enters into certain contractual obligations with his eyes
open and works the entire contract, cannot be allowed to turn round, according to
this decision, and question the validity of those obligations or the validity of the
Rules which constitute the terms of the contract. The extraordinary jurisdiction of
the High Court under Article 226, which is of a discretionary nature and is exercised
only to advance the interests of justice, cannot certainly be employed in aid of such
persons. Neither justice nor equity is in their favour.”
32. In Shyam Telelink Ltd. (supra), the Court while declining interference ruled as
follows:
“23. 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.”
“28. For the reasons set out by us hereinabove, we have no hesitation in holding
that the appellant was not entitled to question the terms of the migration package
after unconditionally accepting and acting upon the same.”
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33. The other decisions referred to in paragraph 55 of Association of Unified

Telecom (supra) need not be discussed in detail since refusal to interfere was based on
more or less the same grounds.
34. Taking a cue from Sachindra Nath Chatterjee (supra), it ought to be the duty of
every Court where a point of its own jurisdiction or jurisdiction of some other
Court/tribunal is raised, to examine whether an order could at all be made (meaning
thereby that existence of jurisdiction has to be ascertained) or an order should at all
be made (notwithstanding existence of jurisdiction, whether relief may be granted in
the exercise of such jurisdiction). Such ascertainment necessarily has to be made
keeping in mind the facts of each particular case.
35. Law is well-settled that neither can a decision on a point which has not been
argued be treated as a precedent nor a mere stray observation can amount to a
precedent. The ratio decidendi of a decision is its reasoning which could be deciphered
only upon reading the same in its entirety.
36. What logically follows on a conspectus of all the decisions referred to above is
that, the relevant observation of the Supreme Court in Association of Unified Telecom
(supra) i.e. the first part of the last sentence of paragraph 47 read with the other
discussions must be understood in the sense of a statement of law having been made
that where the terms and conditions of a licence have been accepted by a licensee and
acted upon, so much so that the licensee has derived the benefits flowing from such
licence, the TDSAT would have no jurisdiction to examine the validity of such acted
upon terms and conditions upon an approach being made to it by such licensee while
attempting to avoid a liability, voluntarily incurred, and to grant relief. The logic is
simple, - a licensee cannot be heard to say that he shall enjoy only the benefit flowing
from the contract and not bear the burden that also flows from the self-same contract.
However, if the challenge involves proper interpretation of any of the terms and
conditions of a contract, the TDSAT may proceed to consider such challenge on well-
recognised grounds.
37. This Bench cannot also ignore that a demand raised by the respondent is under
challenge in this writ petition. While setting aside the order of the TDSAT under
challenge in Association of Unified Telecom (supra) and remitting the matter to it, it
was noticed by the Court that the demands were not challenged. By the
supplementary order, the Court granted liberty to the licensees to challenge the
demands before the TDSAT and granted two months' time for such purpose. The
demand, impugned in this writ petition, can most certainly be a subject matter of
challenge before the TDSAT in view of such observation of the Court.
38. That apart, in view of the decisions in Cellular Operators Association (supra)
and Tata Teleservices (supra), it is the considered opinion of this Bench that the forum
under section 14 of the TRAI Act is not an alternative to the remedy available under
Article 226 of the Constitution. It is the only remedy available to a licensee like the
first petitioner, should it perceive to have been subjected to a legal wrong by the
respondent i.e. the licensor. Since the jurisdiction of the TDSAT is wide and expansive,
all disputes emanating from the contract between the parties must be raised before
the TDSAT at the first instance for its considered decision. It has to be remembered
that the TDSAT while hearing a dispute covered by section 14(a)(i) of the TRAI Act
does not exercise judicial review powers but is, for all intents and purposes, a fact
finding body empowered to decide all questions arising before it pertaining to a
dispute between a licensor and a licensee. Whether or not the petitioners would stand
precluded from claiming any relief by reason of their conduct post introduction of the
guidelines, need not be commented upon here since the writ Court has no jurisdiction
to receive a complaint of the nature raised by them. They must, therefore, pursue their
remedy before the TDSAT.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
39. The objection to the maintainability of this writ petition having substance, is
upheld. The writ petition is dismissed with liberty to the petitioners to approach the
TDSAT in accordance with law, if so advised. Any payment effected in terms of the
order dated January 14, 2016 passed by this Bench shall be subject to further orders
being passed by the TDSAT, if approached.
40. There shall be no order for costs.
41. Needless to observe, the merits of the rival claims have not been examined and
all points are left open for being urged before the TDSAT.
42. Urgent photostat certified copy of this order, if applied for, shall be furnished to
the applicant at an early date.
———
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13 Reliance Communication V UOI 2016 CalHC s14 TDSAT Any Dispute

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13 Reliance Communication V UOI 2016 CalHC s14 TDSAT Any Dispute

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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Sunday, February 05, 2023

2016 SCC OnLine Cal 3763

In the High Court of Calcutta

Reliance Communications Ltd. & Ors.

cognizance of matter presented in a formal way for its decision.’ An examination of

33. The other decisions referred to in paragraph 55 of Association of Unified

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