LexBHARTI CELLULAR LIMITED versus UNION OF INDIA AND ORS.
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[2010] 12 S.C.R. 725 BHARTI CELLULAR LIMITED V. UNION OF INDIA AND ORS. (Civil Appeal No. 7026 of 2003) OCTOBER 5, 2010 [MARKANDEY KAT JU AND T.S. THAKUR, JJ.] A B Leave and Licence - Licence agreement executed by and between appellant-licencee and Government for providing cellular mobile telephone services - Dispute relating to C computation of licence fee dues, interest, penal interest, liquidated damages etc. - Tribunal upheld the computation of licence fee demanded and realized by the respondent- Union of India in terms of the Licence Agreement holding that appellant gave its unconditional acceptance to the entire D Migration package, thus, it was not entitled to raise any issue relating to pre-migration period; and further issued directions for re-working the licence fee dues along with interest - Propriety of - Held: Proper - Once the appellant had specifically and unconditionally agreed to accept the E Migration Package and given up all disputes relating to Licence Agreement, it was not open to it to tum around and agitate any such dispute after availing of the Migration Package - No legal flaw in the directions issued by the Tribunal and consequently no reason to interfere with the order F passed by it - Telecom Regulatory Authority of India Act, 1997 - ss. 14(a)(I) and 18 - Maxim, "qui approbat non reprobate"- Applicability of The appellant-company held a licence to provide cellular mobile telephone services for Delhi Metro area. G The Licence Agreement executed between the appellant on the one hand and the Union of India on the other, inter alia, provided for payment of fixed amount towards 725 H 726 SUPREME COURT REPORTS (2010] 12 S.C.R. A licence fee for the first three years of the licence period. B 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. The appellant filed a petition before the Telecom Disputes Settlement Appellate Tribunal under Section 14(a)(I) of the Telecom Regulatory Authority of India Act, 1997 contending that although it had a provisional C 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 and, therefore, the Licence Agreement should be deemed to have become operative only from 15th November, 1995 but the D respondents treated 26th September 1995 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 E the number of subscribers for determining the licence fee payable from the fourth year onwards and the 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 F fee. The respondent contested the petition on several grounds giving rise to the following four issues which the Tribunal framed for determination: (i) whether the G 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 H respondent in letters dated 10th August, 2009 and 6th BHARTI CELLULAR LIMITED v. UNION OF INDIA 727 AND ORS. March, 2000; (iii) whether the petitioner is entitled to the A benefit of reduction in the unit call rate with effect from 1st May 1999 for calculating the per subscriber licence fee and iv) whether the respondent can levy penal interest on the licence fee from 1st February 2000 till the actual date of payment. The Tribunal ultimately dismissed in B part the petition filed by the appellant. Dismissing the appeal, the Court HELD: 1. As regards the first issue, there is no legal infirmity in the view taken by the Tribunal that the C 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. Once the petitioner-appellant had specifically D and unconditionally agreed to accept the Mi
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