Arijit Banerjee, J. - (1.) This is an appeal against the judgment and order dated 27 January, 2016 passed by the Ld. Trial Judge whereby the Ld. Judge dismissed WP 482 (W) of 2016 (Reliance Communications Ltd. & Ors. v/s. The Union of India & Ors.) on the ground of maintainability with liberty to the petitioners to approach Telecom Disputes Settlement and Appellate Tribunal (hereinafter referred to as 'TDSAT') in accordance with law, if so advised. By consent of the parties, both the stay application and the appeal have been taken up for hearing together and both are being disposed of by the present judgment and order. Factual background of the case: - -
(2.) At all material times the appellant No. 1 (in short 'RCL') was and still is engaged in the business of providing telecom services throughout India. It is not disputed that RCL is a 'service provider' within the meaning of Sec. 2(1)(j) of the Telecom Regulatory Authority of India Act, 1997 (in short the 'TRAI Act'). RCL was administratively allocated spectrum in the 800 MHz band in twenty circles and necessary licences were issued in its favour which are still valid.
(3.) A licence agreement dated 14 November, 2003 was entered into by and between the RCL and the Union of India for provision of Unified Access Services after Migration (in short the said 'Licence Agreement'). The said licence agreement contains, inter alia, the following clauses: - - "(a) The licence agreement would be valid for a period of twenty years commencing from 20 July, 2001 unless revoked earlier for reasons as specified elsewhere in the document (Clause 3). (b) The licensor reserves the right to modify, at any time, the terms and conditions of the licence if in the opinion of the licensor, it is necessary or expedient to do so in public interest or in the interest of the security of the State or for the proper conduct of the telegraphs. Decision of the licensor shall be final and binding in this regard. (Clause 5.1) (c) One time non -refundable Prescribed Entry Fee of Rs. 170.7 crores has already been paid by the licensee (Clause 18.1) (d) For Wireless operations in Subscriber access network, the frequencies shall be assigned by WPC wing of the Department of Telecom from the frequency bands earmarked in the applicable National Frequency Allocation Plan and in coordination with various users. Initially a cumulative maximum of upto 4.4 MHz + 4.4 MHz shall be allocated in the case of TDMA based systems @ 200 KHz per carrier or 30 KHz per carrier or a maximum of 2.8 MHz + 2.5 MHz shall be allocated in the case of CDMA based systems @ 1.25 MHz per carrier, on case by case basis subject to availability. While efforts would be made to make available larger chunks to the extent feasible, the frequencies assigned may not be contiguous and may not be the same in all cases or within the whole Service Area. For making available appropriate frequency spectrum for roll out of services under the licence, the type(s) of Systems to be deployed are to be indicated. [Clause 43.5(1)]";