Vodafone Idea Ltd.gj vs Union Of India

We have heard learned counsel appearing for the petitioner at length as well as learned counsel for Union of India.

Much has been argued out by the petitioner about the wrongful calculation done by the respondent which is under challenge in T.P. No. 30 of 2019 especially about the direction issued by the respondent to make the payment of Rs.3926.34 Crores. Part of this amount is absolutely in dispute for several reasons as mentioned in the memo of the petition in the subsequent affidavits filed by the petitioner including in the rejoinder affidavit.

It is further submitted by counsel appearing for the petitioner that looking to the reply filed by the respondent in M.A. No. 114 of 2023 in T.P. No. 30 of 2019 especially looking to paragraphs 1, 2 and 6 thereof, the original liability as calculated by the respondent was Rs.3926.34 Crores and now the respondent has recalculated the same and has revised the amount of liability of the petitioner for Rs.3170.82 Crores.  Thus, the difference will come to Rs.755.52 Crores.

The petitioner has already deposited Rs.3926.34 Crores under protest with the respondent.

The aforesaid deposit of the amount has never been treated as admission of any facts by the petitioner.

Now, when the respondent has recalculated and revised the demand at Rs. 3170.82 Crores, let a suitable direction be given to the respondent to adjust Rs.755.52 Crores towards the licence fee and Spectrum Usage Charges payable by the petitioner to the respondent.

It is further submitted by the counsel for the petitioner that this adjustment of Rs.755.52 Crores will also be subject to the outcome of this Telecom Petition and without prejudice to the rights and contentions of the petitioner.

It is also submitted by the counsel for the petitioner that the adjustment of the aforesaid amount does not tantamount to admission of any facts by the petitioner so far as even reduced liability at Rs.3170.82 Crores and petitioner is ready and willing to argue out the telecom petition even for disputed amount out of Rs.3170.82 Crores liability imposed by the respondent as a revised calculation.

Learned counsel for Union of India has taken this Tribunal to the affidavit filed by Dr. Neeraj Mittal, Secretary, DoT, New Delhi.  Counsel for Union of India has read over this affidavit and especially paragraphs 1,2 and 6 thereof along with annexures and calculations for the purpose of this telecom petition and has submitted that if this Tribunal is directing the respondent to adjust Rs. 755.52 Crores towards the liability of this petitioner for licence fee and Spectrum Usage Charges the same shall be subject to outcome of this telecom petition and this adjustment may not be treated as admission of any facts by the respondent and respondent is also ready and willing to argue out this telecom petition as and when this Tribunal is fixing the date for final hearing.

Having heard the learned counsels for both the sides and looking to the facts and circumstances of the case especially that: -

(i) Initially the respondent had issued a demand notice for Rs.3926.34 Crores for spectrum below 4.4 MHz. against the differential between the “Entry Fee Paid” and market determined price.  There was a merger of two companies as stated in paragraph 2 of the affidavit filed by Secretary, DoT and because of the merger there is a transfer of the licences as many as 14 in number.  The approval was granted for merger of two companies as stated in paragraph 2 of Vodafone Mobile Services Ltd. (VMSL) and M/s. Vodafone India Ltd. (VIL) with M/s. Idea Cellular Ltd. (ICL) and renamed as Vodafone Idea Limited.  This merger was approved subject to certain conditions and the total liability calculated by the respondent was at Rs.3926.34 Crores as per the communication issued by the respondent to the petitioner dated 9.7.2018.

(ii)   Thereafter, this petition was preferred by the petitioner challenging the aforesaid calculation of the respondent, nonetheless Rs.3926.34 Crores was deposited by the petitioner under protest and without prejudice to the rights and contentions to be raised.

(iii)   Now, in the present matter there are several affidavits filed and several facts have been brought on record perhaps this might have weighted with the respondent and there is now a revised calculation by the respondent of the liability of the petitioner which comes to Rs. 3170.82 Crores.

(iv)    Thus, the respondent on their own reduced the liability of the petitioner by the revised calculation.  From Rs.3926.34 Crores now the liability as per the respondent of the petitioner is at Rs.3170.82 Crores.

(v)    As stated hereinabove this petitioner has already deposited Rs. 3926.34 Crores under protest and without prejudice to the rights and contentions to be raised; therefore, now the question arises of returning Rs.755.52 Crores to the petitioner by the Union of India along with interest.

(vi)   It is fairly submitted by the counsel for the petitioner that they are not demanding return of the amount of Rs.755.52 Crores, but, they are seeking permission to adjust amount at Rs.755.52 Crores towards the liability of this petitioner for licence fee and Spectrum Usage Charges which is also payable by the petitioner to the respondent.

(vii)   Looking to the paragraph 6 of the affidavit filed by the Secretary, DoT, it appears that Union of India has already received Rs.755.52 Crores from this petitioner.

(viii)     For the ready reference, paragraph 6 of the affidavit filed by the Secretary, DoT, Union of India reads as under: -

“Without prejudice to the argument of the Respondent that the amendment sought by the Petitioner is misconceived and baseless, it is submitted that the Department has re-calculated the differential amount payable as per clause 3(i) of the M&A Guidelines dated 20.02.2014 and the revised amount comes to about Rs.3170.82 Crores.  The copy of the table depicting the revised calculation of the differential amount made by the Department is annexed herewith and marked as Annexure-R/1@[pg.192 to 209].”

(Emphasis Supplied)

(ix) In view of the aforesaid affidavit filed by the Secretary, DoT, Union of India and in view of the submissions made by counsel for the Union of India, we hereby direct the respondent to adjust Rs.755.52 Crores towards the liability of this petitioner for licence fee and towards Spectrum Usage Charges within 15 days from today.  This petitioner is given Unified Access Service Licence (UASL) meaning thereby to Unified Licence with authorisation to provide access services.

The aforesaid adjustment of Rs.755.52 Crores towards the liabilities of this petitioner as stated hereinabove shall be subject to the outcome of this telecom petition.  This adjustment of the amount of Rs.755.52 crores will not be treated as admission of any facts by the petitioner nor this adjustment will be treated as admission of any facts by the respondent.  This adjustment of Rs.755.52 Crores towards the liabilities of this petitioner shall be subject to the outcome of this petition.

This matter is adjourned to 10.4.2024.