Union of India vs Association of Unified Telecom Service Providers of India

1 | Page 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

2 | Page

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

3 | Page 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

4 | Page 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

5 | Page 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

6 | Page 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

7 | Page 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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