In Re Mandar Deshpande Vs

We have heard learned counsel for the parties at length.

An additional affidavit has been furnished today on behalf of Ms. Vandana Gupta, Deputy Director General (LFP), Department of Telecom, Govt. of

India, New Delhi, which is taken on record.

We have posed a query to Mr. Tushar Mehta, learned Solicitor General of India, how the demand was raised on the basis of our judgment with

respect to Public Sector Undertakings when the licences were different and the judgment never dealt with the issue of Public Sector Undertakings

and their agreements are quite different.

The affidavit filed on behalf of Department of Telecom also indicates that there are different kinds of licences. Paragraphs 5 and 6 of the affidavit on

behalf of Union of India are relevant, which are extracted below:-

“5. That the AGR dispute was initiated by the licensees who were granted a ‘migration package’ in July/August, 1999, allowing them to

migrate from a fixed LF regime to a revenue sharing regime. The relevant clauses of the Universal Access Service Licence (UASL) defining Gross

Revenue and Adjusted Gross Revenue are:

“19.1 Gross Revenue:

The Gross Revenue shall be inclusive of installation charges, late fees, sale proceeds of handsets (or any other terminal equipment etc.),

revenue on account of interest, dividend, value added services, supplementary services, access or interconnection charges, roaming

charges, revenue from permissible sharing of infrastructure and any other miscellaneous revenue, without any set-off for related item of

expense, etc.

19.2 For the purpose of arriving at the “Adjusted Gross Revenue (AGR)†the following shall be excluded from the Gross Revenue to

arrive at the AGR:

I. PSTN related call charges (Access Charges) actually paid to other eligible/entitled telecommunication service providers within India;

II. Roaming revenues actually passed on to other eligible/entitled telecommunication service providers and; III. Service Tax on provision of

service and Sales Tax actually paid to the Government if gross revenue had included as component of Sales Tax and Service Tax.

The relevant clauses in UL-Access are reproduced as under:

“3.1 GROSS REVENUE

The Gross Revenue shall be inclusive of installation charges, late fees, sale proceeds of handsets (or any other terminal equipment etc.),

revenue on account of interest, dividend, value added services, supplementary services, access or interconnection charges, roaming

charges, revenue from permissible sharing of infrastructure and any other miscellaneous revenue, without any set-off for related item of

expense, etc.

3.2 Adjusted Gross Revenue (AGR) For the purpose of arriving at the “Adjusted Gross Revenue (AGR)â€, following shall be excluded

from the Gross Revenue to arrive at the AGR:

I. PSTN/PLMN/GMPCS related call charges (Access Charges) actually paid to other eligible/entitled telecommunication service providers

within India;

II. Roaming revenues actually passed on to other eligible/entitled telecommunication service providers and;

III. Service Tax on provision of service and Sales Tax actually paid to the Government if gross revenue had included as component of Sales

Tax and Service Tax.â€​

The relevant clauses in ISP License are reproduced are:

“18. Definition of ‘Adjusted Gross Revenue’:

18.1 Gross Revenue: The Gross Revenue shall be inclusive of revenue from Internet access service, revenue from internet contents, revenue

from Internet Telephony service, revenue from activation charges, revenue from sale, lease or renting of bandwidth, links, R&G cases,

Turnkey projects , revenue from IPTV service, late fees, sale proceeds of terminal equipments, revenue on account of interest, dividend,

value added services, supplementary services, interconnection charges, roaming charges, revenue from permissible sharing of

infrastructure and any other miscellaneous revenue, without any set-off for related item of expense etc.

18.2 For the purpose of arriving at the “Adjusted Gross Revenue (AGR)†the following shall be excluded from the Gross Revenue to

arrive at the AGR:

(i) Charges from pure Internet service, activation charges from pure internet subscribers. Pure Internet Services shall mean any

method/device/technology to provide access to Internet unless explicitly prohibited and all content available including web-hosting, web-

colocation which is available on internet without access restriction.

(ii) Service Tax on provision of service and Sales Tax actually paid to the Government if gross revenue had included as component of Sales

Tax and Service Tax.

(iii) Roaming revenue actually passed on to other eligible/entitled telecom service provider.â€​

Relevant clauses of UL-ISP license are:

“3. Financial Conditions:

3.1 Gross Revenue: The Gross Revenue shall be inclusive of all types of revenue from Internet services, revenue from Internet access

service, revenue from internet contents, revenue from Internet Telephony service, revenue from activation charges, revenue from sale, lease

or renting of bandwidth, links, R&G cases, Turnkey projects, revenue from IPTV service, late fees, sale proceeds of terminal equipment,

revenue on account of interest, dividend, value added services, supplementary services, interconnection charges, roaming charges, revenue

from permissible sharing of infrastructure etc. allowing only those deductions available for pass through charges and taxes/levies as in the

case of access services, without any set-off for related item of expense etc.

3.2 For the purpose of arriving at the “Adjusted Gross Revenue (AGR)†the following shall be excluded from the Gross Revenue to

arrive at the AGR:

(i) Service Tax on provision of service and Sales Tax actually paid to the Government if gross revenue had included as component of Sales

Tax and Service Tax. 66

(ii) Roaming revenue actually passed on to other eligible/entitled telecom service provider.â€​

The NLD and IP-II licenses in relation to the definition of the Revenue contain clauses that are worded differently from those of the UAS

(and ISP) licenses. The IP-II license has the following relevant clauses:

5.1 The License Fee in the form of revenue share @ 10% (cap) plus prescribed contributions, from time to time by the LICENSOR towards

the Universal Service Obligation Fund (hereinafter called USO fund) with a total cap of 15% of annual revenue share is payable.

Provisionally at present the rate of USO is 5% of the revenue for this LICENCE.

‘REVENUE†for the purpose of levying license fee as a percentage of revenue shall mean the Gross total Revenue accruing to the

licensee by way of providing the SERVICE under this LICENSE including the revenue on account of interest and dividend etc. It is clarified

that any lease or rent charges for hiring of infrastructure shall not be deducted from the REVENUE. Service Tax and Sales Tax, if any,

collected and passed on to the Government(s) from the customers of the LICENSEE shall not form part of the REVENUE. (emphasis added)

The relevant clauses in the NLD license are:

5.2 In addition to the Entry Fee described above, the LICENCE FEE in the form of Revenue Share @ 10% (cap) plus prescribed

contributions from time to time by the LICENSOR towards the Universal Service Obligation Fund (hereinafter called USO fund) with a total

cap of 15% of the annual Revenue Share is payable. Provisionally at present rate of USO is 5% of the Revenue for this License.

Definition of Revenue:

‘REVENUE†for the purpose of levying LICENCE fee as a percentage of revenue shall mean the Gross total Revenue income accruing

to the LICENCEE by way of providing NLD service under the LICENCE including the revenue on account of supplementary/value added

services and leasing of infrastructure, interest, dividend etc. as reduced by the component part of a pass-through nature payable to other

service providers to whose networks the LICENCEE’s NLD network is interconnected, for carriage of calls. The Gross Revenue shall

also include previous debits (e.g. bad debts recovered, of excess provisions in earlier years.) It is clarified that any lease or rent charges

for hiring of infrastructure shall not be so deducted. Service tax and sales tax collected and passed on to the Government(s) from customers

of the LICENCEE shall not form a part of the Revenue. (emphasis added)

The relevant clauses of UL-NLD are reproduced as under:

3.1 Gross Revenue & Adjusted Gross Revenue ‘REVENUE†for the purpose of levying License fee as a percentage of revenue shall

mean the Gross total Revenue income accruing to the Licensee by way of providing NLD service under the License including the revenue on

account of supplementary/value added services and leasing of infrastructure, interest, dividend etc. as reduced by the component part of a

pass-through nature actually paid to other telecom service providers to whose networks the Licensee’s NLD network is interconnected,

for carriage of calls. The Gross Revenue shall also include previous debits (e.g. bad debts recovered, of excess provisions in earlier years.)

It is clarified that any lease or rent charges for hiring of infrastructure shall not be so deducted. Service tax and sales tax collected and

passed on to the Government(s) from customers of the Licensee shall not form a part of the Revenue.

That it would appear from the text of the above definitions that the definition of revenue used in UASL/ISP licenses as against the phrases

used for the NLD/IP-II licenses are different. Specifically, the phrase ‘by way of providing the service under the license’ has been

used in the NLD and IP-II licenses to qualify the term ‘revenue’, while this is not the case of the UASL/ISP. Further, from a bare

perusal of the aforesaid, it is clear that the terminology “other miscellaneous†do not form part of the License Agreement for IP-II and

NLD licenses. It is submitted that most of the Public Sector Undertakings, therefore hold licenses, under which the relevant terms and

clauses, may not be similar to the Access Service license apparently analysed and interpreted by this Hon’ble Court in judgment dated

24.10.2019 passed in Civil Appeal Nos. 6328-6399 of 2015.

It is submitted that Public Sector Undertakings form a class in themselves as they substantially discharge governmental functions and

represent public funds. It is submitted that a liability of more than Rs.4 lakh crores, which would fall upon the PSUs, may not be in larger

public interest, more particularly when these PSUs are not providing mobile services the way in which commercial service providers are

providing. The requirement of license by these PSUs may be based upon some of their own internal requirements and not for commercial

exploitation the way in which other telecom service providers require the services except the two PSUs not mentioned in the list stated

above.â€​

It is apparent that the licences are different and our judgment in this case could not have been made the basis for raising the demand against Public

Sector Undertakings. Even otherwise, the Public Sector Undertakings are not in the actual business of providing mobile services to the general public.

In the circumstances, let the Department of Telecom reconsider the demand that has been sprung, within three days from today, and on the next date

of hearing report the compliance of the action taken on the basis of this order.

For consideration of prayer with respect to reasonable time to be fixed, as per the prayer made on behalf of the Union of India, and thus we have

heard learned Solicitor General of India as well as learned senior counsel appearing for various Telecom Service Providers. There are several issues

which are to be considered. Firstly, the reasonable time-frame, secondly, how to ensure the payment of the amount even within that time-frame and

what kind of securities, undertakings and guarantees should be furnished to ensure that the amount is paid by the Telecom Service Providers.

Time was prayed on behalf of the Telecom Service Providers to file a joint affidavit with respect to their proposal to secure the amount, which is to be

paid under the orders passed by this Court. Let a joint affidavit be filed within five days from today.

List the matters on 18.06.2020.