UNION OF INDIAversusTATA TELESERVICES (MAHARASHTRA) LTD.

                         UNION OF INDIA                                          A
                                v.
              TATA TELESERVICES (MAHARASHTRA) LTD.

                             AUGUST 23, 2007

            !H.K. SEMA AND P.K. BALASUBRAMANY AN, JJ.J                           B


     Telecom Regulatory Authority of India Act, 1997; Ss. 14, 16K and
18/Code ofCivil Procedure, 1908; s.100, Order Vlll Rule 6A/Code of Criminal
Procedure, 1973; S.195:
                                                                                 c
       Telecom Disputes Settlement & Appellate Tribunal-Contract between
Union of India, the Licensor and a service provider, the Licensee-Breach of
terms of agreement-Damage-Claim and counter claim-Settlement of-
Tribunal upheld the claim of Licensee rejecting the counter claim of licensor
holding that it has no jurisdiction to entertain the counter claim-On appeal, D
Held: In the counter claim by Union of India, even if some vagueness noticed
by the Tribunal, it could have directed the party concerned to remove the
same in the interests of justice-Normally, a right to make a claim include
a right to make a counter claim-There is no reason to whittle down the
right so given in terms of s.14(1) of the Act-A dispute arising after the
acceptance of a tender, pending issuance of licence even after the expiry of E
the stipulated time limit, would fall within the provisions of the. s. l 4(a) of the
Act-A Specialised Tribunal as TDSAT constituted for the purpose of dealing
with specialised matters/disputes arising out of license granted under the
Act-Any breach arising after acceptance of the offer of a Tender would
normally be termed as disputes liable to be settled by the Specialised F
Tribunal-In terms of the procedure,- as prescribed u/s 16 of the Act, the
Tribunal shall not be bound by the procedure as laid down under Civil
Procedure Code but shall be governed by the principles of Natural Justice-
The dispute in the present case arises out of breach of conditions after
accepting the letter of intent by one of the party, therefore, it could be settled
by the Tribunal-Under the circumstances, TDSAT erred in dismissing the G
counter claim of the Licensor as not maintainable-Hence, the claim and the
counter claim remanded to the Tribunal for adjudication afresh in accordance
with law-Direction issued-Transfer of Property Act,,-lndian Contract Act,
1872-Administrative Law-Principles of Natural Justice.

                                     285                                        H
    286                     SUPREME COURT REPORTS                    (2007] 9 S.C.R.

A         Jurisdiction of Telecom Disputes Settlement Appellate Tribunal-To
    entertain counter claim by the Union of India/licensor-Held: Yes, TDSAT
    could entertain such a claim in terms of S. 14(1) and 14(A) of the Act.

         ·Appellant, Union of India, has invited tender for grant of licence in
    respect of certain Telecom Service Contract. In response, tender proposal of
B   the respondent was considered by the appellant. The respondent, after having
    conveyed its acceptance of the Letter oflntent, failed to fulfil the promise made
    by it. Appellant raised a demand of certain sum as damage in lieu of breach
    of contract. Aggrieved, the respondent approached the Telecom Disputes
    Settlement & Appellate Tribunal praying for a declaration that the action of
C   the Union of India in raising a claim and in recovering the amount as per its
    demand dated 10.8.1999, was bad in law and be set aside; for a declaration
    that the set off made by invoking condition 19 of the licence was illegal and
    unauthorised and for setting aside the same and for directing the appellant to
    refund the amount together with interest from the date of the purported set
    off of that amount with the amounts due to the respondent till the date of refund
D   and for other consequential and incidental reliefs. Appellant, Union oflndia,
    had also filed an appeal counter claiming the same amount. The Tribunal
    upheld the claim of the respondent, rejecting the counter claim of the
    appellant-Union of India and also held that it has no jurisdiction to entertain
    a counter claim at the instance of the.appellant. Hence the present appeal.

E         Allowing the appeal, the Court

           HELD: 1.1. It may be true that in the prayer portion in the written
    statement an order or decree in terms ofthe·counter claim had not been sought
    for by the appellant. But the claim as made in the written statement relates to
F   the claim based on the failure of the respondent; after having conveyed its
    acceptance of the Letter oflntent to provide service in the Kamataka Telecom
    Circle and the damages allegedly suffered by the:appellant as a consequence
    and the entitlement of the appellant to reimbursement of the specified sum
    from the respondent. Even if there is some vagueness in the counter claim,
    as felt by the Telecom Disputes Settlement Appellate Tribunal, the TDSAT
G   might have directed the appellant to make its counter claim more specific
    and in a proper manner. After all, a defect of defieiency could be permitted to
    be cured. Hence, this Court is not impressed bythe argument on behalf of
    the respondent that the counter claim was·rather vague and the same was
    rightly rejected for that reason by the TDSAT. After all, this·vagueness can
H   be directed to be removed in the interests of justice, if it were to be held that
                U.0.1. v. TATA TELES ER VICES (MAHARASHTRA) LTD.           287
the counter claim can be maintained by the Union oflndia.                          A
                                                    (Para 411291-B, C, DJ

      1.2. Normally, when a specialised tribunal is constituted for dealing with
disputes coming under it ofa particular nature taking in serious technical
aspects, the attempt must be to construe the jurisdiction conferred on it in a
manner as not to frustrate the object sought to be achieved by the Act. In this    B
context, the ousting of the jurisdiction of the Civil Court contained in Section
15 and Section 27 of the Telecom Regulatory Authority of India Act has also
to be kept in mind. The subject to be dealt with under the Act, has considerable
technical overtones which normally a civil court, at least as of now, is ill-
equipped to handle and this aspect cannot be ignored while defining the            C
jurisdiction of the TDSAT. [Para llJ 1295-C, DJ

       1.3. A specialised tribunal, TDSAT, has been constituted for the purpose
of dealing with specialised matters and disputes arising out of licenses granted
under the Act. Thus there exists, no reason to restrict the jurisdiction of the
tribunal so constituted by keeping out of its purview a person whose offer has     D
been accepted and to whom a letter of intent is issued by the Government and
who had even accepted that letter of intent. Any breach or alleged breach of
obligation arising after acceptance of the offer made in response to a Notice
Inviting Tender, would also normally come within the purview of a dispute that
is liable to settled by the specialised tribunal. Hence, no reason is found to
restrict the expressions "licensor" or "licensee" occurring in Section 14(a)(i)    E
of the Act and to exclude a person like the respondent who had been given a
Letter of Intent regarding the Karnataka Circle, who had accepted the Letter
of Intent but was trying to negotiate some further terms of common interest
before a formal contract was entered into and the work was to be started. To
exclude disputes arising between the parties thereafter on the failure of the      F
contract to go through, does not ~ppear to be warranted or justified
considering the purpose for which the TDSA T has been established and the
object sought to be achieved by the creation of a specialised tribunal.
                                                         !Para 1511297-D, E, Fl

      Cellular Operators Association of India and Ors. v. Union of India and       G
Ors., (20031 3 SCC 186, relied on.

     1.4. There is no reason to whittle down the right given to the Central
Government to approach the TDSAT for adjudication of its claim which comes
under Section 14(1) of the Act. Normally, a right to make a claim would also
                                                                                   H
    288                     SUPREME COURT REPORTS                     [2007) 9 S.C.R.

A   include a right to make a cross-claim or counter claim in the sense that the
    Central Government could always make an independent claim on matters
    covered under the Act and such a claim will have to be entertained by the
    TDSA T. This the Central Government could do even while it is defending a
    claim made against it in TDSAT, by way of a separate application. If a subject
B   matter is capable of being raised before the TDSAT by the Central Government
    or the State Government by way of a claim by making an application under
    Section 14 of the Act, it would not be logical to hold that the same claim could
    not be made by way of a counter claim when the other side, namely, the licensee
    or consumers, had already approached the TDSA T with a claim of their own
    and the Central Government is called upon to defend it. It is, therefore, not
C   possible to accept an argument that a counter claim by the Central Government
    or State Government cannot be entertained by the TDSAT. Hence, the TDSAT
    has jurisdiction to entertain a counter claim in the light of Section 14(1) and
    14A of the Act (Para 12) (295-F, G, H; 296-A, BJ

          1.5. A dispute commencing with the acceptance of a tender leading to
D   the possible issue of a licence and disputes arising out of the grant of licence
    even after the period has expired would all come within the purview of Section
    14(a) of the Act. To put it differently, Section 14 takes within its sweep disputes
    following the issue of a Letter of Intent pre grant of actual licence as also
    disputes arising out of a licence granted between a quondam licensee and the
E   licensor. (Para 131 (296-E, Fl

           2. While prescribing the procedure under Section 16 of the Act, what
    is said is that the TDSAT shall not be bound by the procedure laid down by
    the Code of Civil Procedure but it shall be guided by the principles of natural
    justice. It is significant to note that it is not a case of exclusion of the powers
p   under the Code of Civil Procedure and conferment of specific powers in terms
    of sub-section (2) of that Section. It is really a right given to the TDSAT even
    to go outside the procedural shackles imposed by the Code ofCivil Procedure
    while dealing with a dispute before it. Therefore, it will be difficult to keep
    out the provisions for the filing of a counter claim enshrined in Order VIII
    Rule 6A of the Code of Civil Procedure which could be applied by the TDSAT.
G   The sweep of Order VIII Rule 6A of the Code now takes in even claims
    independent of the one put forward in the application if it is one the respondent
    therein has against the applicant. On the whole, the TDSAT was in error in
    dismissing the counter claim as not maintainable. (Para 16) (298-C, D, El

          3. In the light of the finding that the counter claim is maintainable and
H
     U.0.1. v. TATA TELESERVICES(MAHARASHTRA)LTD. [BALASUBRAMANYAN,J.]        289
it requires to be investigated, the proper course is to set aside the finding        A
rendered by the TDSAT on the plea of set off raised by the appellant This is
in view of the fact that acceptance of the counter claim or even a part thereof
might throw open the question of legal or equitable set-off, to be considered
in the light of the finding on the counter claim. Therefore, this is an
appropriate case where the whole matter should be reopened without going
into the merits of the contentions of parties on the plea of set off raised by the   B
appellant and leave the question to be decided by the TDSA T along with the
counter claim that has been made by the appellant. On taking note of the
objection that the counter claim has not been made specific and has.not been
put forward in·a proper manner, that it would be appropriate to direct th-e
appellant to make a proper counter claim before the TDSAT. The TDSAT                 C
thereafter will give the respondent an opportunity to file its written statement
to the counter claim and then decide the claim made by the respondent and
the counter claim afresh in accordance with law. (Para l 7) (298-E, H; 299-A)

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1033 of2004.
                                                                                     D
      From the final Judgment and Order dated 12.09.2003 of the Telecom
Disputes Settlement and Appellate Tribunal, New Delhi in Petition No. 12 of
2002.

     Mohan Prasaran, ASG, Mohit Choudhary, Manish Jain, Pooja Sharma,
V.K. Verma and Shreekant N. Terdal for the Appellant.                                E
     Dr. A.M. Singhvi, Ramji Srinivasan, Ruby Singh Ahuja, Prashant Kumar
Mishra, Simran Brar, Amit Bhandari, Jainul Abdin, Mandakini Singh, Rhythm
Anand Bhardwaj and Manik Karanjawala for the Respondent.

      The Judgment of the Court was delivered by                                     F
       P.K. BALASUBRAMANYAN, J. I.This appeal by the Union oflndia,
the respondent in a proceeding before the Telecom Disputes Settlement &
Appellate Tribunal (for short, "the TDSAT") in a petition filed by the
respondent herein under Section 14 of the Telecom Regulatory Authority of
India Act, 1997 (for short "the Act") is under Section 18 of the Act. The G
respondent approached the TDSA T praying for a declaration that the action
of the Union of India in raising a claim and in recovering the amount as per
its demand dated 10.8.1999, was bad in law and be set aside, for a declaration
that the set off made by invoking condition 19 of the licence the respondent
had with the appellant in respect of the Maharashtra Service Area was illegal H
     290                     SUPREME COURT REPORTS                    [2007) 9 S.C.R.

A    and unauthorised and for setting aside the same, for directing the appellant
     to refund an amount of Rs;50 crores together with interest from .the date of
     the purported -set off: of that a~ount with the amounts due to the respondent
     till the date of refund and for other consequential and incidental reliefs. In
     answer, the appellant contended that it was entitled to make the set off and
B    the ·set ·off made was authorised and .legal and that there is no reason to
     interfere ·with the set off and the respondent was not entitled to the recovery
     of Rs.50.crores with interest thereon. A claim that the appellant is entitled to
     recover as damages from the respondent a sum of Rs.654.25 crores ·towards
     the loss suffered ;by it on account ofthe respondent 1herein failing to fulfil
     its obligations under the Letter of .Intent issued to ·it in respect of the
C    Kamataka Telecom Circle was also put forward. The TDSA T upheld the claim
     of the respondent, rejected the claim of the appellant that it was entitled to
     a legal or equitable set off of the sum of Rs.50 crores and more importantly
     held :that it has no jurisdiction to entertain a counter claim at the instance of
     the appellant. Of course, it was also pointed out that the counter claim itself
D    was not properly framed and was somewhat vague. Thus the claim of the
     respondent was accepted and a direction was issued to the appellant to
     refund the sum of Rs.50 crores to the respondent with interest thereon at 17
     per cent per annum from the date the said amount was appropriated .by the
     appellant till its payment along with costs of the proceedings. This adjudication
     of the TDSA T is challenged in this appeal.
E
            2. Section 18 of the Act provides for an appeal to this Court from an
     order or decision of the TDSAT whether in exercise of its·appellate jurisdiction
     or .in exercise ·Of its original jurisdiction on one -or more of the grounds
     specified in Section l 00 of the Code of Civil Procedure. The two substantial
     questions of law sought to be adjudicated on are ( 1) whether the TDSA Twas
F    justified in not accepting the plea of set off raised by the .appellant and (2)
     whether the TDSA T has not failed to exercise the jurisdiction vested in it by
     law in declining to go into the merits of the counter claim made by the
     appellant and in rejecting the same as being not maintainable.

            3. The question whether the plea of set off, whether legal or equitable
'G   is liable to be upheld might depend on our conclusion on the question
     whether a counter claim at the instance ofthe Union oflndia in a proceeding
     initiated ·before the TDSA T by a licensee or service provider, .is maintainable.
     If we hold that the counter claim is maintainable, necessarily the same would
     have to be adjudicated on, on merits and the result of such an adjudication
H    would have impact on the plea of set off put forward by the appellant. Of
     U.0.1. v. TATA TELES ER VICES (MAHARASHTRA) LTD. [BALASUBRAMANYAN, J .]   291

course, if our answer to the said question is that the counter claim is not A
maintainable, then we have to decide independently whether the finding
entered by the TDSA T on the plea of set off is vitiated by a substantial error
of law or not. We will, therefore, first tackle the question whether the counter
claim made by the Union of India was maintainable.

       4. It may be true that in the prayer portion in the written statement an B
order or decree in terms of the counter claim had not been sought for by the
appellant. But the claim as made in the written statement relates to the claim
based on the failure of the respondent, after having conveyed its acceptance
of the Letter of Intent to provide service in the Karnataka Telecom Circle and
the damages allegedly suffered by the appellant as a consequence and the C
entitlement of the appellant to reimbursement of the specified sum from the
respondent. Even if there is some vagueness in the counter claim, as felt by
the TDSA T, we think that the TDSAT might have directed the appellant
before us, to make its counter claim more specific and in a proper manner.
After all, a defect of deficiency could be permitted to be cured. We are,
therefore, not impressed by the argument on behalf of the respondent before D
us that the counter claim was rather vague and the same was rightly rejected
 for that reason by the TDSA T. After all, this vagueness can be directed to
 be removed in the interests of justice, if it were to be held that the counter
claim can be maintained by the Union of India.

       5. According to the TDSA T, Section I 6 of the Act prescribes the             E
procedure and powers of the TDSA T. No right has been given by that
provision to the Union of India to make a counter claim in a petition filed by
a petitioner before the TDSA T seeking certain amounts as due from the Union
of India as the licensor. The question is whether this restricted view taken by
the TDSA T is justified on the scheme of the Act.                                    F
       6. The Objects and Reasons for enacting the Act and creating the
TDSA T indicate that the TDSA T will consist of a Chairperson who has been
a Judge of the Supreme Court of India or a Chief Justice of a High Court, and
two to four members who have held the post of Secretary or Additional
Secretary to the Government of India or any equivalent post in the Central G
Government or the State Government for a minimum period of three years. The
powers and functions of the Authority, as set out in the Objects and Reasons,
 include settlement of disputes between service providers. The preamble to the
Act indicates that it is an Act to provide for the establishment of the TDSA T
to regulate the telecommunication service, adjudicate disputes, dispose of H
    292                    SUPREME COURT REPORTS                  (2007] 9 S.C.R.

A appeals and to protect the interests of service providers and consumers of
    the telecom sector, to promote and ensure orderly growth of the telecom
    sector and for matters connected therewith or incidental thereto. The Act
    defines "Licensee" as any person licensed under sub-section (1) of Section
    4 of the Indian Telegraph Act, 1885 (13of1885) for providing specified public
B   telecommunication service. It defines "Licensor" as meaning the Central
    Government or the telegraph authority who grants a licence under Section 4
    of the Indian Telegraph Act, 1885 (13of1885). A "service provider" is defined
    as meaning, the Government as a service provider and it includes a licensee.
    Section 14 of the Act deals with the establishment of the TDSA T. It appears
    to be appropriate to set down the said Section hereunder: ·
c          "14. Establishment of Appellate Tribunal - The Central Government
           shall, by notification, establish an Appellate Tribunal to be known as
           the Telecom Disputes Settlement and Appellate Tribunal to -

           (a) adjudicate any dispute -
D                (i) between a lincesor and a licensee;
                 (ii) between two or more service providers;

                 (iii) between a service provider and a group of consumers:

               Provided that nothing in this clause shall apply in respect of
E           matters relating to -

           (A) the monopolistic trade practice, restnct1ve trade practice and
               unfair trade practice which are subject to the jurisdiction of the
               Monopolies and Restrictive Trade Practices Commission
               established under sub-section (I) of Section 5 of the Monopolies
F              and Restrictive Trade Practices Act, 1969 (54 of 1969);
           (B) the complaint of an individual cons'umer maintainable before a
               Consumer Disputes Redressal Forum or a Consumer Disputes
               Redressal Commission or the National Consumer Redressal
               Commission established under section 9 of the Consumer
G              Protection Act, 1986 (68 of 1986);

           (C) dispute between telegraph authority and any other person referred
               to in sub-section (I) of section 78 of the Indian Telegraph Act, •
               1885 (13 of 1885);

           (b)   hear and dispose of appeal against any direction, decision or
H
           U.0.1. v. TATA TELESERVICES(MAHARASHTRA)LTD.(BALASUBRAMANYAN,J.]    293

                  order of the Authority under this Act."                             A
             7. The Section indicates that the TDSA T has been constituted to
      adjudicate on any dispute between a licensor and a licensee or between two
      or more service providers. Though it also includes adjudication on a dispute
      between a service provider and a group of consumers, it excludes matters
      coming within the jurisdiction of the Monopolies and Restrictive Trade Practices B
      Commission established under the Monopolies and Restrictive Trade Practices
      Act, 1964, the complaint of an individual consumer that is maintainable before
      a Consumer Disputes Redressal Forum and a dispute between a telegraph
      authority and any person referred to in Section 78 of the Indian Telegraph
      Act, 1885. Section 14A of the Act provides that the Central Government or C
      a State Government or a local authority or any person may make an application
      to the Appellate Tribunal for adjudication of any dispute referred to ip clause
      (a) of Section 14. Section 14A, therefore, contemplates not only the ,filing of
      a claim before the TDSAT by a licensee or a consumer, but also by the.Central
      Government or a State Government which could be a licensor or a service
      provider. Section 148 deals with the composition of TDSAT. It is to consist D
      of a Chairperson and not more than two Members to be appointed, by
      notification, by the Central Government. The selection of the Chairperson and
       Members of the Appellate Tribunal shall be made by the Central Government
      in consultation with the Chief Justice of India. Section I4C provides the
      qualification of the Chairperson and the Members and the Chairperson has
      either to be a Judge of the Supreme Court or the Chief Justice of a High Court E
      or a retired Judge of the Supreme Court of a retired Chief Justice of the High
      Court. A Member has to be one who has held the post of Secretary to the
      Government of India or any equivalent post in the Central Government or the
       State Government for a period of not less than two years or a person who
...   is well versed in the field of "technology, telecommunication, industry, F
      commerce or administration." Under Section 14 of the Act, the jurisdiction of
      the TDSA T has to be exercised by a Bench consisting of one member or two
      members and in case of difference of opinion between two members, the point
      of difference has to be referred to the Chairperson, who shall decide the point
      himself and the ultimate decision will be according to the majority opinion.
       Section 15 ousts the jurisdiction of the Civil Court and it reads thus:         G
              "15. Civil court not to have jurisdiction - No civil court shall have
              jurisdiction to entertain any suit or proceeding in respect of any
              matter which the Appellate Tribunal is empowered by or under this
              Act to determine and no injunction shall be granted by any court or     H
    294                     SUPREME COURT REPORTS                    [2007] 9 S.C.R.

A           other authority in respect of any action taken or to be taken in
            pursuance of any power conferred by or under this Act."

          8. Section 16 of the Act provides that the TDSA T shall not be bound
    by the procedure laid down in the Code of Civil Procedure, but will be guided
    by the principles of natural justice and subject to the other provisions of the
B   Act have the power to regulate its own procedure. It is also to have the
    specified powers under the Code of Civil Procedure like summoning of
    witnesses, discovery, issue of requisition of any public record, issue of
    commission, review of its decisions, dismissing an application for default or
    deciding it ex parte, for restoring an application dismissed for default or
C   setting aside a decision rendered ex parte and any other matter which may
    be prescribed. ~ub-section (3) of Section 16 specifies that every proceeding
    before the TDSA T shall be deemed to be a judicial proceeding in terms of the
    Indian Penal Code and the TDSA T shall be deemed to be a civil court for the
    purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure.
    Section 17 confers right on the parties to legal representation. Parties could
D   authorise one or more chartered accountants, company secretaries, cost
    accountants or legal practitioners or any of its officers to represent its case.
    Section 18 confers the right of appeal to the Supreme Court on a substantial
    question of law. Section 19 provides that orders. passed by the TDSA T shall
    be executable as decrees through the TDSA T, but it has also the power to
E   transmit any order made by it to a civil court to execute the order as if it were
    a decree made by that court. Section 20 provides for penalties for wilful failure
    to comply with the orders of the TDSA T. Section 27 of the Act one again
    indicates that no civil court has jurisdiction in respect of any matter which
    the Authority is empowered by or under the Act to determine.

F         9. The conspectus of the provisions of the Act clearly indicates that
    disputes between the licensee or licensor, between two or more service
    providers which takes in the Government and includes a licensee and between
    a service provider and a group of consumers are within the purview of the
    TDSA T. A plain reading of the relevant provisions of the Act in the light of
    the preamble to the Act and the Objects and Reasons for enacting the Act,
G   indicates that disputes between the concerned parties, which would involve
    significant technical aspects, are to be determined by a specialised tribunal
    constituted for that purpose. There is also an ouster of jurisdiction of the civil
    court to entertain any suit or proceeding in respect of any matter which the
    TDSA T is empowered by or under the Act to determine. The civil court also           ,
H   has no jurisdiction to grant an injunction in respect of any action taken or
     U.0.1. v. TATA TELESERVICES(MAHARASHTRA)LTD. [BALASUBRAMANYAN,J.] 295

to be taken in pursuance of any power conferred by or under the Act. The           A
constitution of the TDSAT itself indicates that it is chaired by a sitting or
retired Judge of the Supreme Court or sitting or a retired Chief Justice of the
High Court, one of the highest judicial officers in the hierarchy and the
members thereof have to be of the cadre of secretaries to the Government,
obviously well experienced in administration and administrative matters.
                                                                                   B
       IO. The Act is seen to be a self contained Code intended to deal with
all disputes arising out of telecommunication services provided in this country
in the light of the National Telecom Policy, 1994. This is emphasised by the
Objects and Reasons also.

      l l. Nonnally, when a specialised tribunal is constituted for dealing with   C
disputes coming under it of a particular nature taking in serious technical
aspects, the attempt must be to construe the jurisdiction conferred on it in
a manner as not to frustrate the object sought to be achieved by the Act. In
this context, the ousting of the jurisdiction of the Civil Court contained in
Section 15 and Section 27 of the Act has also to be kept in mind. The subject      D
to be dealt with under the Act, has considerable technical overtones which
normally a civil court, at least as of now, is ill-equipped to handle and this
aspect cannot be ignored while defining the jurisdiction of the TDSA T.

       12. Section 14A of the Act gives the ri~ht to the Central Government,
or to the State Government to approach TDSA T on its own. Going by the E
definitions in the Act, both Governments could be 'service providers'. The
Central Government could also be the licensor. Thus, either as a licensor or
a service provider, the Central Government could make an application to
TDSA T seeking an adjudication of any dispute between it and the licensee
or between it and another service provider or between it and a group of F
consumers. It has actually to make its claim in TDSA T. There is no reason
to whittle down the right given to the Central Government to approach the
TDSA T for an adjudication of its claim which comes under Section 14( 1) of
the Act. Normally, a right to make a claim would also include a right to make
a cross-claim or counter claim in the sense that the Central Government could
always make an independent claim on matters covered under the Act and G
such a claim will have to be entertained by the TDSA T. This the Central
Government could do even while it is defending a claim made against it in
TDSA T, by way of a separate application. If a subject matter is capable of
being raised before the TDSA T by the Central Government or the State
Government by way of a claim by making an application under Section 14 of          H
    296                     SUPREME COURT REPORTS                   [2007] 9 S.C.R.

A the Act, it would not be logical to hold that the same claim could not be made
    by way of a counter claim when the other side, namely, the licensee or
    consumers, had already approached the TDSA T with a claim of their own and
    the Central Government is called upon to defend it. It is, therefore, not
    possible to accept an argument that a counter claim by the Central Government
    or State Government cannot be entertained by the TDSAT. We hold that the
B   TDSA T has Jurisdiction to entertain a counter claim in the light of Section
     14(1) and l 4A of the Act.

           13. The thrust of the argument on behalf of the respondent before us
    was, in a case where, a licence had not actually been issued to a party by
C   the Central Government, the dispute could not be said to be one between a
    licensor and a licensee, contemplated by Section 14(a)(i) or (ii) of the Act. It
    is submitted that only on the actual grant of a licence, a person would become
    a licensee under the Central Government and only a dispute arising after the
    grant of a licence would come within the purview of the Act. The wording
    of the definition of licensee is emphasised in support. Considering the purpose
D   for which the Act is brought into force and the TDSA T is created, we think
    that there is no warrant for accepting such a narrow approach or to adopt
    such a narrow construction. ft will be appropriate to understand the scop~
    of Section 14(a)(i) of the Act and for that matter Section l4(a)(ii) of the Act
    also, as including those to whom licenses were intended to be issued and as
E   taking in also disputes that commence on the tender or offer of a person being
    accepted. In other words, a dispute commencing with the acceptance of a
    tender leading to the possible issue of a licence and disputes arising out of
    the grant of licence even after the period has expired would all come within
    the purview of Section 14(a) of the Act. To put it differently, Section 14 takes
    within its sweep disputes following the issue of a Letter of Intent pre grant
F   of actual licence as also disputes arising out of a licence granted between a
    quondam licensee and the licensor.

           14. In the case on hand, the Notice Inviting Tender defined a 'licens~e·
    as a registered Indian Company that will be awarded licence for providing the
    service. Now, pursuant to that invitation, the predecessor of the respondent
G   submitted its tender and the appellant accepted it. A Letter of Intent was also
    issued. The respondent accepted and started negotiating for certain
    modifications, which apparently the appellant was willing to consider. But
    ultimately, the contract did not come into being. The licence was not actually
    granted. It is the case of the appellant that the appellant had suffered
H   considerable Joss because of the respondent walking out of the obligation
     U.0.1. v. TATA TELESERVICES(MAHARASHTRA)LTD. [BALASUBRAMANYAN,J.]     297

undertaken by acceptance of the Letter of Intent. According to the learned        A
Additional Solicitor General appearing for the appellant, such a dispute
would also come within the purview of Section 14 of the Act going by the
definition of licensee and the meaning given to it in the Notice Inviting
Tenders. The argument of learned Senior Counsel on behalf of the respondent
is that the expressions "licensor" and "licensee" are defined in the Act and
the respondent had not become a licensee and the appellant had not become
                                                                                  B
a licensor since the agreement was never entered into between the parties
for providing telecom services in the Karnataka Telecom Circle and the
attempt to rope in an intending licensee to whom a Letter of Intent has been
issued or the entering into a contract is proposed, cannot be countenanced
since the respondent has not become a licensee within the meaning of the          c
Act and consequently this was not a dispute that came within the purview
of Section 14( I) of the Act.

       15. We have already indicated that a specialised tribunal has been
constituted for the purpose of dealing with specialised matters and disputes
arising out of licenses granted under the Act. We therefore do not think that     D
there is any reason to restrict the jurisdiction of the tribunal so constituted
by keeping out of its purview a person whose offer has been accepted and
to whom a letter of intent is issued by the Government and who had even
accepted that letter of intent. Any breach or alleged breach of obligation
arising after acceptance of the offer made in response to a Notice Inviting
Tender, would also normally come within the purview of a dispute that is
                                                                                  E
liable to settled by the specialised tribunal. We see no reason to restrict the
expressions "licensor" or "licensee" occurring in Section 14(a)(i) of the Act
and to exclude a person like the respondent who had been given a Letter of
Intent regarding the Karnataka Circle, who had accepted the Letter of Intent
but was trying to negotiate some further terms of common interest before a        F
formal contract was entered into and the work was to be started. To exclude
disputes arising between the parties thereafter on the failure of the contract
to go through, does not appear to be warranted or justified considering the
purpose for which the TDSA T has been established and the object sought
to be achieved by the creation of a specialised tribunal. In Cellular Operators   G
Association of India and Ors. v. Union of India and Ors., [2003] 3 SCC I 86
this Court had occasion to consider the spread of Sections 14 and 14A of
the Act. This Court held that the scope of Sections 14 and 14A are very wide
and is not confined by restrictions generally imposed by judge made law on
the tribunal exercising an appellate jurisdiction. Of course, their Lordships
were considering in particular, the case of appellate jurisdiction. But this      H
                                                                                                )/
                                                                                            /    ·-
    298                      SUPREME COURT REPORTS                      [2007] 9 S.C.R.

A   Court further said that the tribunal has the power to adjudicate on any dispute
    but while answering the dispute, due weight had to be given to the
    recommendations of the authority under the Act which consists of experts.
    This decision, though it did not directly deal with the power of the TDSA T
    as the original authority but was dealing with the power of the TDSA T as an
    appellate authority and the power of this Court in appeal, clearly gives an
B   indication that there is no need to whittle down the scope of Sections 14 an~
    14A of the Act.

            16. It has also to be noted that while prescribing the procedure under
    Section 16 of the Act, what is said is that the TDSA T shall not be bound by
C   the procedure laid down by the Code of Civil Procedure but it shall be guided
    by the principles of natural justice. It is significant to note that it is not a case
    of exclusion of the powers under the Code of Civil Procedure and conferment
    of specific powers in terms of sub-section (2) of that Section. It is really a right
    given to the TDSA T even to go outside the procedural shackles imposed by
    the Code of Civil Procedure while dealing with a dispute before it. Therefore,
D   it will be difficult to keep out the provisions for the filing of a counter claim
    enshrined in Order VIII Rule 6A of the Code of Civil Procedure which could
    be applied by the TDSAT. The sweep of Order VIII Rule 6A of the Code now
    takes in even claims independent of the one put forward in the application
    if it is one the respondent therein has against the applicant. On the whole,
E   we are of the view that the TDSAT was in error in dismissing the counter
    claim as not maintainable.

           17. In the light of our finding that the counter claim was maintainable
    and it requires to be investigated, we think that the proper course is to set
    aside the finding rendered by the TDSA T on the plea of set off raised by the
F   appellant. This is in view of the fact that acceptance of the counter claim or                    ...
    even a part thereof might throw open the question of legal or equitable set-
    off, to be considered in the light of the finding on the counter claim. Therefore,
    we think this to be an appropriate case where we should reopen the whole
    matter without going into the merits of the contentions of parties on the plea
    of set off raised by the appellant arid leave the question to be decided by
G   the TDSA T along with the counter claim that has been made by the appellant.
    On taking note of the objection that the counter claim has not been made
    specific and has not been put forward in a proper manner, we are satisfied
    that it would be appropriate to direct the appellant to make a proper counter
    claim before the TDSA T within three months from today. The TDSAT thereafter
H   will give the respondent an opportunity to file its written statement to the
     U.0.1. v. TATA TELESERVICES (MAHARASHTRA) LTD. [BALASUBRAMANYAN, J.]   299

counter claim ttnd then decide the claim made by the respondent and the            A
counter claim afresh in accordance with law.

      18. We, thus, allow this appeal and setting aside the decision of the
TDSA T, remand the claim and the counter-claim for a fresh adjudication and
disposal in accordance with law. We leave the parties to suffer their respective
costs in this Court.                                                               B
S.K.S.                                                        Appeal allowed.