ASSOCIATION OF UNIFIED TELECOM SERVICE PROVIDER OF INDIA vs UNION OF INDIA on 14 September 2007

ORDER

Petitioners have filed these Review Applications having common prayers. These are:

“(a) review its Order and Judgment dated 30.08.2007 in Petition No.7 of 2003; (b) direct that the said judgment dated 30.08.2007 is modified and the penultimate Paragraph as quoted herein above be deleted;

(c) clarify that the effect and benefits of the Judgment dated 07.07.2006 and 30.8.07 would enure to the benefit of the Applicants from the date when they migrated to a Revenue Share Regime and./or were required to pay licence fee on the basis of a Revenue Share Regime; (d) direct DoT to refund all the excess amounts collected from the Applicants together with interest @12% per annum from the date when the excess amounts were paid.”

Notice in the Review Applications was issued to the respondents and Mr.P.P.Malhotra, the learned ASG has appeared for the respondents. The learned counsel appearing for the petitioners argued that the benefit of the order dated 30.8.07 should be extended to all the members of the petitioner Association irrespective of the fact whether they were parties to these petitions or not. On petitioners' own showing, the Association has hundreds of members holding licences issued by respondent for operating cellular mobile phone service. It is argued that all members being similarly situated, the benefit of the order should not be confined to only those who were petitioners in these petitions but should be extended to everyone since it is a judgment in rem. It is further submitted that the Association was impugning the action of the respondents on behalf of its members and therefore this Tribunal should not have confined the benefit of the order to the petitioners alone. In this connection, we would like to quote the relevant portion of our judgment dated 30.8.07 which is as under:

“The next question is from what date they should be made effective. We are dealing with specific cases filed before us by various petitioners. The date when a petitioner approached this Tribunal is the date on which it registered its grievance and sought redressal. Therefore, we make this order effective for each petitioner from the date it approached the Tribunal”.

One of the prayers contained in the Review Applications is that this paragraph of the order should be deleted. It was also argued that the effect of the order is that the law as declared by this Tribunal would be considered as law at all times and gross revenue for purposes of revenue sharing is to be calculated on that basis. Therefore, the benefit of the order should accrue to the petitioners not only from the date they approached the Tribunal, it should be available right from the date of inception of the demand which is illegal in terms of order of this Tribunal dated 30.8.07.

Mr.P.P. Malhotra, the learned ASG on the other hand submitted that the grounds on which review has been sought by the petitioners are not available to them. Scope of review is limited. According to the learned ASG, the petitioners are in fact arguing for re-hearing of the matter and seeking further reliefs. This Tribunal was alive to the points being raised by the petitioners now and has considered the same while giving its order. Therefore, this cannot be said to be a case of error apparent on the face of the record and the Review Applications are liable to be dismissed on this ground alone. On merits he submits that the occasion for the penultimate paragraph in the order, which has been quoted above, arose because the TRAI in its recommendations had said that the same should be made effective from a prospective date. This Tribunal was considering whether the recommendations should be made prospective or retrospective. This aspect was considered by the Tribunal in the last two pages of its order and the concluding portion of the order shows that this Tribunal has taken conscious decision on the aspect on which review is now sought by the petitioners.

We have considered the submissions made by both sides. In our view the matters sought to be agitated by the petitioners do not fall within the scope of review and therefore the Review Applications are liable to be rejected on this ground alone. Further we cannot entertain the prayer for deletion of the penultimate paragraph quoted above, because the observations contained in the said paragraph arise in view of the recommendations of the TRAI in its report that they should be made prospective. This Tribunal had to give its decision thereon. Penultimate paragraph in the order is a considered conscious decision on the point. Similarly, the prayer that the benefit of the judgment should accrue to the applicants from the date when they migrated to the revenue sharing regime also stands concluded by the judgment. This Tribunal has taken a conscious decision on the point and therefore this aspect cannot be a subject matter of review.

The result of the above discussion is that the Review Applications are dismissed.

…………………..J

(Arun Kumar) Chairperson

………………. (D.P.Sehgal) Member