*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20th December, 2012
+ W.P.(C) No.7189/2011
YAKESH ANAND ..... Petitioner
Through: Petitioner in person with Mr. Nimit
Mathur & Mr. Murari Kumar, Advs.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Rajeeve Mehra, ASG with Mr.
Neeraj Chaudhari, CGSC, Mr.
Ravjyot Singh & Mr. Kunal Kahol,
Advs. for UOI with Mr. Ravi Pande,
SO, DoT.
Mr. Maninder Singh, Sr. Adv. with
Mr. Gopal Jain & Mr. Ankur Sood,
Advs. for Bharti Airtel Ltd.
Mr. Saket Singh with Mr. Kumar
Rajan Mishra, Advs. for TRAI.
Mr. Maninder Singh, Sr. Adv. with
Mr. Manjul Bajpai & Mr. Sarvajeet
Kr. Thakur, Advs. for Vodafone.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
[
RAJIV SAHAI ENDLAW, J
CM No.9538/2012 (for revival of the writ petition)
1. This application has been filed by the petitioner for revival of this writ petition filed as public interest litigation and which was disposed of vide order dated 29th February, 2012.
W.P.(C) No.7189/2011 Page 1 of 6
2. The writ petition was filed seeking a direction to the Union of India (UOI) to restrain the licensees of 3G services from providing the said services in circles for which they do not hold the 3G license by entering into agreements with others. Notice of the writ petition was issued. Soon after the writ petition was filed, UOI vide order dated 23 rd December, 2011 instructed the concerned service providers to stop the provision of 3G services in all such service areas where they were providing such services under Intra Service Area roaming agreements. The said service providers challenged the said order of UOI before the Telecom Disputes Settlement Appellate Tribunal (TDSAT) which vide interim order in those proceedings restrained UOI from taking any coercive steps against such service providers. The writ petition was disposed of noticing that the said proceedings before the TDSAT were at an advance stage. Liberty was however given to the petitioner to apply for revival of the petition, depending upon the final orders of the TDSAT.
3. Revival of the writ petition is sought pleading that the proceedings aforesaid before the TDSAT resulted in a split judgment with the Chairman of TDSAT holding the order dated 23rd December, 2011 of the UOI to be violative of the principles of natural justice and directing the UOI to give an W.P.(C) No.7189/2011 Page 2 of 6 opportunity of hearing after issuing show cause notice and giving liberty to the UOI to pass appropriate orders thereafter and the Member of TDSAT upholding the order dated 23 rd December, 2011 of UOI and dismissing the challenge thereto. It is thus the plea of the petitioner that owing to the said imbroglio and under the protection of the interim order of the TDSAT, the service providers were continuing to provide 3G services in violation of their license conditions and to the prejudice of public revenues.
4. When this application came up before this Court on 22 nd August, 2012 the petitioner further pointed out that since there was no third member of TDSAT, there was no likelihood of the aforesaid imbroglio being resolved at an early date. We had in the circumstances requested the learned ASG to find out as to when the third member of TDSAT was going to be appointed. This Court was on 5th September, 2012 informed that recommendations for appointment had been made by the Selection Committee and the matter was pending at the level of the Ministry.
5. While this application was still pending before us, LPA No.838/2012 filed by Reliance Communications Ltd. came up before us. From the said LPA we learnt that the UOI had issued a show cause notice dated 28 th September, 2012 to the respondent no.5 herein namely Bharti Airtel Ltd. qua W.P.(C) No.7189/2011 Page 3 of 6 the same subject matter. The respondent no.5 Bharti Airtel Ltd. filed W.P.(C) No.6334/2012 impugning the said show cause notice. The said writ petition was disposed of vide order dated 3 rd October, 2012 granting liberty to respondent no.5 Bharti Airtel Ltd. to file reply to the show cause notice and directing the UOI to adjudicate thereon and restraining UOI from taking any coercive measures against the respondent no.5 Bharti Airtel Ltd. till then. Reliance Communications Ltd. though not a party to the said writ petition challenged the same in LPA No.838/2012 contending that restraining coercive measures against the respondent no.5 Bharti Airtel Ltd., thereby allowing respondent no.5 to continue providing 3G services in areas for which it did not have license and under the Intra Service Area Roaming Agreement was prejudicial to its interest.
6. We have today disposed of the said LPA by making the said adjudication proceedings time bound.
7. We, in the circumstances enquired from the learned ASG as to why the procedure which has been adopted by UOI against the respondent no.5 Bharti Airtel Ltd. cannot be adopted against respondent no.6 M/s Idea Cellular Ltd. and respondent no.7 M/s Vodafone Essar Mobile Services Ltd. also. The learned ASG after obtaining instructions has informed us that W.P.(C) No.7189/2011 Page 4 of 6 similar notices as issued to the respondent no.5 Bharti Airtel shall also be issued to the respondent no.6 M/s Idea Cellular Ltd. & respondent no.7 M/s Vodafone Essar Mobile Services Ltd. as well as to others similarly placed, within one week from today. He further states that time of 60 days is required to be given for filing of reply and thereafter the said notices shall also be adjudicated in a time bound manner keeping in view the time schedule fixed by us in our order of today in LPA No.838/2012.
8. We are of the opinion that the UOI, by adopting the modus aforesaid of issuing the show cause notices, has got over the imbroglio which was prevailing owing to the conflict aforesaid of the TDSAT.
9. We had earlier disposed of the petition since TDSAT was seized of the dispute. Revival of the writ petition was sought pleading that the proceedings before TDSAT had come to naught owing to the split judgment aforesaid and there being till date no third member to resolve the said conflict. Now that a via media has been found to the said situation, the position which prevailed as on the date when the writ petition was disposed of stands restored and it is not necessary for this Court to go into the issues raised in the writ petition, till the UOI itself takes a decision and/or challenge, if any thereto, is brought.
W.P.(C) No.7189/2011 Page 5 of 6
10. The petitioner of course contends that there are other issues also raised in the petition. However notwithstanding the same, we had earlier disposed of the petition awaiting the order of the TDSAT. No ground for review of the said order is urged. Moreover the only ground on which the revival was sought, also as aforesaid stands resolved now.
11. We accordingly dispose of this application for revival of the petition as, in view of aforesaid, no need is felt at this stage for revival of the petition.
RAJIV SAHAI ENDLAW, J CHIEF JUSTICE DECEMBER 20, 2012 pp W.P.(C) No.7189/2011 Page 6 of 6