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Supreme Court of India
Union Of India vs Association Of Unified Telecom … on 23 July, 2021Author: L. Nageswara Rao
Bench: L. Nageswara Rao, S. Abdul Nazeer, M.R. Shah
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
M. A. No.83 of 2021
In M. A. (Diary) No.9887 of 2020
In Civil Appeal Nos. 6328-6399 of 2015
Union of India
…. Applicant(s)
Versus
Association of Unified Telecom Service
Providers of India and Ors.
…. Respondent (s)
With
M.A. No.115 of 2021
In M. A. (Diary) No.2450 of 2020
In Civil Appeal No. 5882 of 2015
M. A. No.116 of 2021
In M. A. (Diary) No.9887 of 2020
In Civil Appeal No. 6328-6399 of 2015
O R D E R
1. These Miscellaneous Applications have been filed for
modification of paragraph 38 (i) of the judgment dated
01.09.2020 passed in M.A. (D.) No.9887 of 2020 in C.A.
Nos.6328-6399 of 2015 with connected matters and for
clarification that the said judgment does not bar the Union of
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India from considering and rectifying the clerical/arithmetical
errors in computation of AGR dues.
2. Though it is not necessary to refer to the historical facts
in detail, it is relevant to recall the brief background in which
the above applications have been filed. The definition of
‘gross revenue’ as defined in Clause 19.1 of the licence
agreements between the Government of India and the
Telecom Service Providers (for short, ‘ the TSPs’) was
considered in a judgment of this Court dated 24.10.2019 in
Civil Appeal Nos.6328-6399 of 2015 1 with connected matters.
In M.A. (D) No. 9887 of 2020 in C.A. Nos. 6328-6399 of 2015,
this Court passed an order on 20.07.2020 in which it was
observed that an attempt was made by the TSPs to wriggle
out of the judgment dated 24.10.2019 in the guise of seeking
reassessment and recalculation of AGR dues. This Court was
of the firm opinion that there was no scope for raising any
further dispute with respect to AGR dues. It was made clear
that a new round of litigation is prohibited. It was also
mentioned in the order that the calculations made and the
amount to be recovered as stated at page Nos. 180-181 of
the aforesaid M.A. shall be treated to be final and no
recalculation and self-assessment can be undertaken.
1 (2020) 3 SCC 525
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3. The particulars of the amounts recoverable from major
TSPs as per preliminary assessment have been mentioned in
the order dated 20.07.2020. On 01.09.2020, M.A. (D.)
No.9887 of 2020 in C.A. Nos.6328-6399 of 2015 was
disposed of2 in the following terms: –
“38. Resultantly, we issue following directions:
(i) That for the demand raised by the Department of Telecom
in respect of the AGR dues based on the judgment of this
Court, there shall not be any dispute raised by any of the
Telecom Operators and that there shall not be any re-
assessment.
(ii) That, at the first instance, the respective Telecom
Operators shall make the payment of 10% of the total dues
as demanded by DoT by 31.3.2021.
(iii) TSPs have to make payment in yearly instalments
commencing from 1.4.2021 up to 31.3.2031 payable
by 31st March of every succeeding financial year.
(iv) Various companies through Managing
Director/Chairman or other authorised officer, to furnish
an undertaking within four weeks, to make payment of
arrears as per the order.
(v) The existing bank guarantees that have been
submitted regarding the spectrum shall be kept alive by
TSPs, until the payment is made.
(vi) In the event of any default in making payment
of annual instalments, interest would become
payable as per the agreement along with penalty
and interest on penalty automatically without
2 (2020) 9 SCC 748
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reference to Court. Besides, it would be punishable for
contempt of Court.
(vii) Let compliance of order be reported by all TSPs, and DoT
every year by 7th April of each succeeding year.”
4. The grievance of the Applicants is that the judgment
dated 01.09.2020 needs clarification as even calculation
errors cannot be rectified by the Union of India in view of the
judgment of this Court.
5. We have heard Mr. Mukul Rohatgi, Dr. Abhishek Singhvi,
Mr. Arvind P. Datar and Mr. Ramji Srinivasan, learned Senior
Counsel appearing for the Applicants. It was contended on
behalf of the Applicants that accounts pertaining to several
years had to be scrutinized to arrive at the amounts payable
by the Applicants towards AGR dues. A scrutiny of the
accounts revealed that certain arithmetical errors have
arisen due to inadvertence on the part of the Department of
Telecommunications while computing these dues. They
made it clear that there is no intention on the part of the
Applicants to reopen the issues that have already been
decided by this Court in its judgment dated 01.09.2020 in the
guise of these applications for clarification/modification. Mr.
Rohatgi referred to a note filed on behalf of the Applicant in
M.A. No.115 of 2021 to demonstrate certain glaring errors in
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the demand raised by the Union of India wherein amounts
that have already been paid by the Applicant were not taken
into account for computing outstanding AGR dues. Dr.
Abhishek Singhvi submitted that errors committed in
computation of AGR dues of the Applicant in M.A. No.83 of
2021 arose due to double counting of some revenue items,
payments made but not accounted for and accrued
deductions not being given effect to. It was reiterated by Dr.
Singhvi that the Applicant should not be made to suffer for
certain calculation errors made by the Union of India. Mr.
Datar appearing in M.A. No.116 of 2021 argued that
paragraph 38 (i) of the judgment dated 01.09.2020 prohibits
the telecom operators from raising any dispute in respect of
AGR dues on the basis of the judgment. It was made clear in
para 38 that there shall be no reassessment. Mr. Datar
submitted that there is no prohibition from seeking
rectification of inadvertent errors committed in calculation of
AGR dues. Mr. Ramji Srinivasan, supporting the submissions
made on behalf of the other Senior Counsel, stated that it
would be a travesty of justice if the Applicants are not
permitted to get arithmetical errors in the computation of
their AGR dues rectified. The learned Senior Counsel were in
unison in submitting that the Applicants are not seeking any
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positive direction, except to permit the Union of India to
verify their accounts and rectify the defects in computation
of AGR dues, if any.
6. The Union of India had filed M.A. (D.) No.9887 of 2020
in C.A. Nos.6328-6399 of 2015 seeking approval of this Court
on the mode and timeline of recovery of AGR dues from the
TSPs. In the said application, it was pointed out that several
TSPs were undergoing insolvency proceedings under the
Insolvency and Bankruptcy Code, 2016. As elaborated
above, the order passed on 20.07.2020 in the said M.A. made
it clear that no dispute can be raised in respect of AGR dues
that had been arrived at, on the basis of calculations made
by the Union of India and mentioned at page nos.180-181 of
the M.A. The actual amounts payable by the TSPs have
been mentioned in the said order. Issues concerning the
ambit of proceedings under Section 18 of the Insolvency and
Bankruptcy Code, 2016 in relation to spectrum, the manner
in which payment has to be made by and liabilities
apportioned between the TSPs in case of spectrum sharing
and spectrum trading, with which we are not concerned in
these Applications, were also dealt with in the judgment
dated 01.09.2020. While disposing of the M.A., this Court at
paragraph 38 reiterated that no telecom operator shall raise
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any dispute in respect of the demand raised by the
Department of Telecommunications pertaining to AGR dues,
based on the judgment of this Court dated 24.10.2019. It was
also held that there cannot be any reassessment.
7. Though these Applications appear to be innocuous at
first blush, the end result of the relief sought by the
Applicants in the guise of correction or rectification of the
defects or arithmetical errors in calculation of AGR dues,
would be recalculation which would amount to the AGR dues,
as specified in the order of this Court dated 20.07.2020,
being altered. The dispute relating to AGR dues had
remained pending in courts for a very long period of time and
bearing this in mind, this Court was at pains to emphasize, at
the cost of repetition, that the AGR dues payable by TSPs
cannot be the subject matter of any future litigation. The
order dated 20.07.2020 makes it clear that there is no scope
for any recalculation/re-computation of AGR dues. Even at
the time of passing of the order dated 20.07.2020, an
attempt was made to seek recalculation and reassessment,
as recorded in the order, which was rejected by this Court
outright. There is no room for any doubt, from the perusal of
para 38 (i) of the judgment dated 01.09.2020, with respect to
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this Court entertaining any application for altering the AGR
dues of the TSPs.
8. For the aforementioned reasons, the Miscellaneous
Applications are misconceived and therefore, dismissed.
…………………………J.
[L. NAGESWARA RAO]
………………………..J.
[S. ABDUL NAZEER]
………………………..J.
[M. R. SHAH]
New Delhi,
23rd July, 2021
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