Yakesh Anand vs Union Of India & Ors.
2012 Latest Caselaw 7298 Del

           *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.

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

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

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

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.

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