UNION OF INDIAversusMIS. MILLENIUM MUMBAI BROADCAST PVT. LTD.

                             UNION OF INDIA                                   A
                                      v.
           MIS. MILLEN!UM MUMBAI BROADCAST PVT. LTD.

                              APRIL 28, 2006

                   [S.B. SINHA AND P.P. NAOLEKAR, JJ.]                        B


       Telecommunication Law:

       Telecom Regulatory Authority of India Act, 1997: Sections 14 and 17.   C
        FM broadcasting service-Grant of licence-Default in payment of
  licence fee-Revocation of licence and encashment of bank guarantee-A
  notice inviting tenders was issued by the Government of India from the
  companies registered in India for the grant of licence to operate FM
. broadcasting service-One of the successful bidders was granted the licence D
· and was required to co-locate the transmission infrastructure on a common
  transmitter tower and also was required to share the cost of creating the
  common infrastructure-Five bidders defaulted-Having regard to the default
  on the part of the said five bidders, the cost of co-locating on a common
  transmission tower for the remaining five licensees was almost doubled- E
   Therefore, the licensor issued guidelines permitting the five licensees to
  broadcast from interim independent facilities for an interim period, during
   which period the five licensees were required to set up a common transmission
  tower-The licensee paid the licence fees and also furnished a Bank
  Guarantee but did not pay the licence fee for the subsequent year-The
  licensor without communicating to the licensee as to whether its request to F
  extend the time for deposit of the said amount was accepted or no.t revoked
  the licence and, thereafter, invoked the Bank Guarantee and encashed the
  same-The High Court directed the licensor to permit the licensee to broadcast
  untilfurther orders-The Tel{!com Disputes Settlement & Appellate Tribunal,
  upon examining the relevant clauses of the licence, held that the action on G
  the part of the licensor revoking the licence of the licensee was illegal-
  Correctness of-Held: Licensor may encash and forfeit the bank guarantee
 furnished by the licensee without giving any notice-However, for the purpose
  of revocation of the licence either on the ground of default on the part of the
  licensee to pay the consideration in respect of the licence or for breach of
                                                                              H
                                     587
    588                     SUPREME COURT REPORTS [2006) SUPP. I S.C.R.

A   the conditions of licence, 30 days' notice as also an opportunity of hearing
    was imperative-Hence, revocation of licence without issuing a notice is a
    nullity.

           A notice inviting tenders was issued by the Government of India from
    the companies registered in India for the grant of licence to operate FM
B   broadcasting service. The respondent was one of the successful bidders along
    with four others. In terms of the agreement, the holders of ten licences were
    required to co-locate the transmission infrastructure on a common
    transmitter tower and also were required to share the cost of creating the
    common infrastructure. Five licensees who were successful bidders in the
C   auction process defaulted and did not sign the agreements for grant of licences.
    Having regard to the default on the part of the said five bidders, the cost of co-
    locating on a common transmission tower for the remaining five licensees
    was almost doubled. The appellant, therefore, issued guidelines permitting
    the five licensees to broadcast from interim independent facilities for an
D   interim period, during which period the five licensees were required to set
    up a common transmission tower. The respondent paid the licence fees and
    also furnished a Bank Guarantee. But the respondent did not pay the requisite
    licence fee for the subsequent year. The appellant without communicating to
    the respondent as to whether its request to extend the time for deposit of the
    said amount was accepted or not revoked the licence and, thereafter, invoked
E   the Bank Guarantee and encashed the same.

           The High Court directed the appellant to permit the respondent to
    broadcast until further orders. The Telecom Disputes Settlement & Appellate
    Tribunal, upon examining the relevant clauses of the licence, held that the
F   action on the part of the appellant revoking the licence of the respondent was
    illegal. Hence the appeal.

          Dismissing the appeal, the Court

          HELD: 1.1. The licence granted in favour of the respondent is a statutory
G one. The terms and conditions thereof are governed by the statutory provisions.
                                                                             [597-BJ

          1.2. The terms and conditions could not be complied with in view of the
    relocation of the same power transmitter, utilization of common transmitter
    tower and sharing certain common facilities having not been possible. It was
H   in the aforementioned situation, guidelines were issued by the appellant in
                U.0.1. v. MILLENIUM MUMBAI BROADCAST PVT. LTD.            589
deviation of the original terms of the licence that the respondent and the        A
licensees similary situated should make their own arrangements for
broadcasting of the events. [597-F-G)

    · 1.3. By reason of Clause 9 of the agreement revocation of the licence
both for breach of terms and conditions as also for default in payment of any
consideration must precede 30 days' written notice and a reasonable               B
opportunity of hearing. [598-A-B)

      2.1. In Clause 1.2 of the agreement, the expression 'and' occurring in
between the words 'right to revoke the licence' and 'encash and forfeit the
bank guarantee' must be read as two separate clauses. The same cannot be
read as conjunctive in view of the fact that it is admitted that the revocation of C
licence is not permissible without service of 30 days' notice. What was,
therefore, permissible is that the licensor in terms of the said condition of
licence may encash and forfeit the bank guarantee furnished by the licensee
without giving any notice. The same would evidently mean that for the purpose
of encashment and forfeiture of the bank guarantee, no separate notice is D
required to be given in the event any cause of action arise therefor.
                                                                        [598-C-D)

      2.2. Clause 12.1 of the agreement is not in two parts. It merely provides
for two different situations in terms whereof revocation of licence is
permissible. The licensor by reason thereof is required to give a 30 days'        E
written notice to the licensee before terminating the licence. The words
"without prejudice to any other remedy for breach of the conditions of the
licence" must be read in the context of other provisions contained therein.
Clause 12.l (ii) permits termination/revocation of licence on compliance of
the conditions stipulated therein; but the same would be without prejudice to     F
any other remedy for breach of the conditions of licence, which in turn would
mean that by reason thereof other remedies available to the licensor, if any,
are not taken out from their application. [598-E-G)

       3.1. Clause 16.2 of the agreement plays an important role as it enables
the licensor to encash the bank guarantee without any notice; but even for G
the said purpose the conditions precedent mentioned therein were required
to be fulfilled. On a conjoint reading of the aforementioned provisions, it would,
therefore, appear that whereas for the purpose of revocation of the licence
either on the ground of default on the part of the licensee to pay the
consideration in respect of the licence or for breach of the conditions of
licence, 30 days' notice as also an opportunity of hearing was imperative. H
    590                     SUPREME COURT REPORTS (2006] SUPP. I S.C.R.

A   However, what could be done without any notice is encashment of bank
    guarantee. (598-G, H; 599-AI

          3.2. It may be true that the mode and manner of compliance of the
    principle of natural justice had not been specifically stated, but the same would
    not mean that it was not necessary to be complied with at all. (599-BI
B
          3.3. However, the letter issued by the appellant was merely a demand. It
    was not a notice in the true sense of the term as consequences for non-
    payment had not been stated therein. The said letter was issued only by way
    of reminder. [599-C)

C         4. Only because the licensee makes a default, the same would not mean
    that the licence should stand revoked without any further notice. Once it is
    held that 30 days' notice was required to be given before a licence is revoked,
    it cannot be said that the letter issued by the appellant satisfied the
    requirements thereof. [599-C-D(

D          5. The matter may be considered from another angle. By reason of the
    provisions contained in Clause 12.1 of the terms of the licence, not only the
    revocation of licence for breach of any conditions contained in any agreement,
    but also prevention thereof on any other ground which would include the
    default in payment of licence fee would result in the consequence of debarring
E   the licensee from applying directly or indirectly for any FM Radio Station in
    future. The consequence of the revocation of the licence, therefore, is penal
    in nature. Such penal provision is required to be strictly construed.
                                                                         [599-E-F)

           6.1. Before the licensor exercise his right to revoke the licence, a notice
F   was required to be issued. It having not been done, the conclusion is
    irresistible that the purported revocation oflicence was a nuility. (599-F-G)

          6.2. It is now a well-settled principle of law that a document must be
    construed having regard to the terms and conditions as well as the nature
    thereof: [599-G I
G
           Pearey Lal v. Rameshwar Das, AIR (1963) SC 1703 and Administrator
    of the Specified Undertaking of the Unit Trust of India v. Garware Polyester
    Ltd., (2005) 10 SCC 682, relied on.

         7. The provisions of the Specific Relief Act, 1963 would not apply to the
H   contracts, which are governed by the statutory provisions. (600-B)
          U.0.1. v. MILLENIUM MUMBAI BROADCAST PVf. LTD. [S.B. SINHA, J.]   591

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1150 of2006.                A
      From the final Judgment and Order dated 3.10.2005 of the Telecom
 Disputes Settlement & Appellate Tribunal (TDSA T), New Delhi in Petition
No. 49 (C) of2005.

      A. Sharan, ASG and Rajeev Sharma for the Appellant.                         B
      R.F. Nariman, Nikhil Majathia, Joseph Pookkatt and Prashant Kumar for
 the Respondent.

      The Judgment of the Court was delivered by

       S.B. SINHA, J. Union oflndia is before us aggrieved by and dissatisfied
                                                                                  c
 with the judgment and order of the Telecom Disputes Settlement & Appellate
 Tribunal, New Delhi dated 3rd October, 2005 in Petition No.49(C) of 2005,
 whereby and whereunder the application filed by the Respondent herein was
 allowed.
                                                                                  D
         The basic fact of the matter is not in dispute. A Notice inviting tender
  was issued by the Government of India, Ministry of Information & Broadcasting
  in the month of October, 1999 from the companies registered in India for grant
  of licence to operate FM broadcasting service at Mumbai. The Respondent
   herein was one of the successful bidders along with four others. It is not in E
  dispute that in terms of the agreement, it was stipulated that holders of 10
  licences, which were planned for the city of Mumbai, would co-locate the
  transmission infrastructure on a common transmitter tower, as required in
  Clause 14 of the Licence Agreement, as also Article 7.l(i) of the Schedule (C)
  of the said Licence Agreement. Pursuant to or in furtherance of the said
  scheme, the cost of creating the common infrastructure to transmit from a F
  common transmission tower was to be shared by the ten licensees in Mumbai.
  It is admitted that five licensees who were successful bidders in the auction
  process defaulted and did not sign the agreements for grant of licences in
. Mumbai. Having regard to the default on the part of the said five bidders, the
  costs of co-locating on a common transmission tower for the remaining five
  licensees was almost doubled. The Appellant herein, thereafter, issued G
  guidelines permitting the five licensees in Mumbai to broadcast from interim
 'independent facilities for an interim period of 24 months, during which period
  the five licensees were required to set up a common transmission to~er.

      It is also not in dispute that the said guidelines were followed for two    H
    592                     SUPREME COURT REPORTS (2006) SUPP. I S.C.R.

A years only, but, having regard to the difficulties faced by the said five
    licensees to co-locate the transmission for broadcasting, they were permitted
    to make their own arrangement to enable them to operationalize their individual
    interim stations within a period of four months. It stands admitted that the
    Respondent herein paid licence fees and also furnished a Bank Guarantee to
    the tune of Rs.9. 75 crores.
B
         After the completion of the term of one year, a reminder was sent to the
    Respondent on 6.3 .2003 stating:



c
                "It will be recalled that vide letterNo.212/216/2001-B(D)/FM dated
            3l.12.2001 you had been informed that in respect of Mumbai you are
            permitted to set up permanent co-located facilities by 29th December,
                                                                                        -
            2003.

                The deadline for setting up co-located facilities is approaching.
            You are requested to inform this Ministry of the actions that have
            been taken by you in setting up the co-located infrastructure in
D           Mumbai and to shift your operation from the interim set up.

               This is also to inform that the license fee for the second year will
            become due on 29th April, 2003."

          In terms of the said licence, in the event of default on the part of the
E licensee to pay the consideration therefor, i.e., furnishing lincence fee within
    a period of seven days of the beginning of each year, the Bank Guarantee
    furnished could have been encashed. It is furthermore not in dispute that for
    the second year of the licence, the Respondent was to pay a sum of 15% more
    than the original licence fee. Union of India by a letter dated 2.5.2003 reminded
F   the Respondent as regard payment of licence fee for the second year. The
    Respondent herein responded to the said letter stating:

                "Our Company is committed to FM Broadcasting and on that
            basis we would like to reassure you that we are arranging for payment
            of second year licence fee amounting to Rs.11.2 crores at the earliest.
G               We should be in a position to deposit the said licence fee amount
            in full by May 16, 2003. We are also willing to pay interest for the
            delay of 9 days.

                 We request not to encash our bank guarantee during this period
            i.e. May 17, 2003."
H
          U.O.l v. MILLENIUM MUMBAI BROADCAST PVT. LTD. [S.B. SINHA, J.)    593

       However, it stands adJllitted that the Respondent did not pay the amount    A
of licence fee by 16.5.2003, but, at the same time, the Appellant also did not
communicate to the Respondent as to whether its request to extend the time
for deposit of the said amount was accepted or not.

      The Appellant, by an order dated 20.5.2003, revoked the licence stating:
                                                                                   B
            "In continuation of our earlier letter dated 2.5.2003, I am directed
        to inform you that you have failed to pay the 2nd year's licence fees
        within the prescribed period, your licence stands revoked and therefore
        you should stop broadcasting immediately."

        The Appellant, thereafter, invoked the Bank Guarantee and encashed C
the same on 28.5.2003. The Respondent, questioning the validity of the said
 order of revocation of licence, filed a writ petition before the Delhi High Court,
which was marked as WP(C)No.4195 of2003. An interim order was passed by
 the Delhi High Court on 2.7.2003 directing the Appellant herein to permit the
 Respondent to broadcast until further orders and that from the amount D
 recovered through invocation of the Bank Guarantee, the Appellant would be
 permitted to appropriate the sum towards licence fee for the period of
 broadcasting as per the interim orders. The High Court also extended the
 operation of the interim order on 3.9.2003, subject to the condition that the
 Respondent herein deposits a sum of Rs. I crore. Yet again, by an order dated
 15.3.2004, the Respondent herein was permitted to deposit a sum ofRs.23 lacs E
 by 26.3.2004 and furthermore furnish a Bank Guarantee for another sum of
 Rs.23 lacs in favour of the Appellant herein to the satisfaction of the Joint
 Registrar of the High Court. The said direction, indisputably, was issued in
 the light of the submissions made by the Appellant herein that out of the total
 sum of Rs.ll,21,50,000/- towards the second year's licence fee, a sum of
Rs.9. 75 crore stood paid (by invoking the bank Guarantee of the said amount) F
and another sum of Rs. I crore had been paid pursuant to the order dated
3. 9 .2003 passed by the High Court and as such the balance sum of Rs.46 lacs
had become due towards the licence fee for the second year which expired
on 29.4.2004. Despite a demand notice issued for payment of licence fee for
the third year, the same was not done and in fact, on 20.4.2004, the Respondent G
herein made a submission before the High Court that it did not intend to make
any broadcast w.e.f. 29th April, 2004.

      We may notice that before the High Court, the Appellant herein
categorically stated that in the event the Respondent did not intend to make
any broadcast from 29th April, 2004, no deposit was required to be made. In        H
    594                     SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A the interregnum, the Union of India came up with a new policy.
         The Respondent filed an application before the Tribunal questioning
  the validity or otherwise of the revocation of broadcasting licence by letter
  dated 20.5.2003, inter a/ia, contending that the same was in violation of the
  said Agreement and was, thus, liable to be set aside. It was furthermore
B prayed that the Respondent be declared to be entitled to utilize the licence
  agreement on such terms as are applicable to other similarly situated licensees.
  It was also contended that as by reason of illegal revocation of licence, the
  Respondent could not use thereafter the facilities to broadcast, they are
  entitled to pro-rata rebate in licence fee from 28.5.2003 to 5.7.2003.
c         The Appellant herein, on the other hand, contended that as the
    Respondent had defaulted in payment of licence fee for the second year as
    per the terms and conditions thereof the licence has rightly been revoked.

          The Tribunal, upon examining the relevant clauses of the licence, opined
D that the action on the part of the Appellant revoking the licence of the
    Respondent was illegal. It was observed:

               "We are informed that during the interregnum the Respondent/
           Government had come out with a new policy which entitles the existing
           licence holders to migrate from fixed licence fee regime to revenue
E          sharing regime which the (>etitioner submits the other Licensees
           similarly situated have been permitted. If that be so, the petitioner
           shall also be entitled to the said benefit of the change in licence fee.
           However, since petitioner's bank guarantee has been appropriated
           towards non-payment of licence fee for the period for which the
           licence fee was payable, the petitioner shall now on demand from the
F          respondents furnish a bank guarantee as required under the terms and
           conditions of the licence."

        The ·licence agreement was entered into on 27.10.2000 between the
  parties herein. The said licence had four Schedules. Schedule (C) appended
G to the said agreement laid down the terms and conditions of the licence.
          Clause I of the said agreement reads as under:

           "!.   Unless otherwise mentioned in the subject of context appearing
                 hereinafter all the Schedules i.e. A B C & D, annexed hereto
                 including the tender documents, Letter of Intent and the guidelines
H
         U.0.1. v. MILLENIUM MUMBAI BROADCAST PVT LTD. [S.B. SINHA, J.]   595

           issued/or to be issued from time to time by the licensor and the      A
           wireless Operational Licence to be issued by the Wireless Planning
           & Coordination Wing in the Ministry of Communications,
           Government of India shall form part and parcel of this Licence
           Agreement.

           "Provided, however, in case of conflict between the corresponding     B
       provisions of the aforesaid schedules and this agreement, the terms
       set out in the main body of this Agreement shall prevail. In this
       Agreement, words and expressions shall have the same meaning as
       is respectively assigned to them in the Schedule A."

     Clause 9 of the said Agreement reads as follows:                            c
           "The Licensor may at any time revoke the Licence by giving a
       written notice of30 days, to the Licensee after affording a reasonable
       opportunity of hearing on the breach of any of the terms and
       conditions herein contained or in default of payment of any
       consideration payable as provided hereunder."                             D
      We have noticed hereinbefore that Schedule-C relates to terms and
conditions of licence, the relevant clauses whereof are:

      12. The Licensee shall pay the Licence fee every year in advance
          within seven days of the beginning of the year failing which the       E·
          Licensor reserves the right to revoke the Licence and encash &
          forfeit the Bank Guarantee furnished by the Licensee without
          giving any notice. This is without any prejudice to any other
          action that may be taken by the Licensor under the terms and
          conditions of the Licence."
                                                                                 F

       12.1 Termination for default -
           The Licenoor can terminate the Licence of the Licensee in case
           ~                                                       ,
                                                                                 G
           (i) Default in payment of the Licence Fees;

           (ii) Breach of any terms and conditions contained in this Agreement

           The Licensor may, without prejudice to any other remedy for
           breach of the C<?nditions of Licence give a written notice to the
           Licensee at its· registered office 30 days in advance before          H
    596                     SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A                 tenninating this Licence.
            In the event of tennination/revocation of the licence, the licensee will
            not be eligible to apply directly or indirectly for any FM Radio Station
            licence, in future.

                     xxx     xxx
B
            16.I A Bank Guarantee, equivalent to the first year Licence Fee valid
                 for I0 years from any Scheduled Bank in the prescribed fonn shall
                 be submitted along with this Agreement by the Licensee. The
                 Licensee shall keep the bank guarantee renewed till the expiry of
C                the licence period.
           162 The Licensor may encash the bank guarantee without any notice
               in any of the following conditions:
           (0     If the licensee fails to deposit the licence fee within 7 days of the
                  beginning of the each year.
D          (ii)   If the licence stops the service without giving one year's notice
                  under clause 12.3.
           (ili) If the licensee is declared or applies for being declared insolvent
                  or bankrupt."

E          Mr. A. Sharan, learned Additional Solicitor General of India appearing
    on behalf of the Appellant submitted that having regard to the provisions
    contained in Clause 1.2 and Clause 12. I of the tenns of the licence, it is
    evident that the condition precedent for grant of 30 days' notice as also an
    opportunity of hearing, were required to be complied with only in the cases
    of breach of any of the tenns and conditions of agreement and not in relation
F   to the default in payment of licence fee as Clause 12. I dealt with different
    situation.

         It was also submitted that the right of the Appellant in tenns of Clause
   1.2 of the terms of licence contained in Schedule-C thereof provides first to
G distinguish the powers of the Appellant, i.e., to revoke the licence and to
  encash and forfeit the bank guarantee without giving any notice. According
  to the learned Additional Solicitor General that revocation of the licence is
  pennissible without complying with the principles of natural justice. Clause
  9 of the Agreement must be harmoniously read with the conditions of licence
  and when so read, the same would show that issuance of 30 days' notice and
H affording a reasonable opportunity of hearing relate to breach of any of the
          U.0.1. v. MILLENIUM MUMBAI BROADCAST PVT. LTD. [S.B. SINHA, J.]   597

tenns and conditions of the licence, but, the said requirements are not to be     A
complied with in case where the licence is revoked for default in payment of
any consideration payable towards payment of licence fees.

      It was further submitted that the Tribunal committed a manifest error in
so far as it issued a direction upon the Appellant to issue the said notice.
                                                                                  B
       The licence granted in favour of the Respondent is a statutory one. The
tenns and conditions thereof are governed by the statutory provisions. It was
initially granted for ten years. Clauses 14 and 15 of the said agreement
provide:

        "14. The Licence for four metros (Calcutta/Chennai/Delhi/Mumbai)          C
        shall form consortium and enter into an agreement for using same
        power transmitter, utilize common transmitter tower and share certain
        common facilities as per the fonnat of agree~ent enclosed at Annexure
        II.

        15. The Licensee shall own transmitter. Further the Licensee himself      D
        will carry out the broadcast and shall not sub-contract, assign or
        transfer the licence in any manner to any third party. In case of such
        transfer or assignment, the Licensor shall have the right to revoke the
        Licence of the Licensee immediately.

            However, the Licensee may with the prior approval of Licensor         E
        enter into an agreement with a third party so as to enable the latter
        to set up infrastructural and hardware facilities such as tower,
        transmitter etc. such pennission shall not in any case be treated as
        pennission to provide the services under the Agreement by such third
        party on behalf of the Licensee."                                         p
      It is not in dispute that the said conditions could not be complied with
in view of the relocation of the same power transmitter, utilization of common
transmitter tower and sharing certain common facilities having not been
possible. It was in the aforementioned situation guidelines were issued by the
Appellant herein in deviation of the original terms of the licence that the       G
Respondent and the licensees similarly situated should make their own
arrangements for broadcasting of the events. Clause 1.2 of the agreement
provided for the mode and manner as regard construction of the said agreement
in case of any conflict between the corresponding provisions of the schedule
and the body of the agreement.
                                                                                  H
    598                    SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A         In view of the aforementioned express stipulations contained in the
    agreement, it is required to construe clause 9 of the agreement at the outset
    independently. By reason of the said provision revocation of the licence both
    for breach of terms and conditions as also for default in payment of any
    consideration must precede 30 days' written notice and a reasonable
    opportunity of hearing.
B
          How the said provision can be given effect to would depend on the
    construction of terms and conditions of the licence. By reason of clause 1.2,
    as contained in the Schedule-C appended thereto, the licensor had been
    conferred with a power to revoke the licence as also encash and forfeit the
C   bank guarantee without any notice. The expression 'and' occurring in between
    the words 'right to revoke the licence' and encash and 'forfeit the bank
    guarantee' must be read as two separate clauses. The same cannot be read
    as conjunctive in view of the fact that it is admitted that the revocation of
    licence is not permissible without service of 30 days' notice. What was,
    therefore, permissible is that the licensor in terms of the said condition of
D   licence may encash and forfeit the bank guarantee furnished by the licensee
    without giving any notice. The same would evidently mean that for the
    purpose of encashment and forfeiture of the bank guarantee, no separate
    notice is required to be given in the event any cause of action arises therefor.

           Clause 12. \ whereupon the learned Additional Solicitor General placed
E   strong reliance is not in two parts. It merely provides for two different
    situations in terms whereof revocation of licence is permissible. The licensor
    by reason thereof is required to give a 30 days' written notice to the licensee
    before terminating the licence. The words "without prejudice to any other
    remedy for breach of the conditions of the licence" must be read in the
F   context of other provisions contained therein. Sub-clause (ii) of Clause 12.1,
    permits termination/revocation of licence on compliance of the conditions
    stipulated therein; but the same would be without prejudice to any other
    remedy for breach of the conditions of licence, which in tum would mean that
    by reason thereof other remedies available to licensor, if any, are not taken
    out from their application.
G
          Clause 16.2 plays an important role as it enables the licensor to encash
    the bank guarantee without any notice; but even for the said purpose the
    conditions precedents mentioned therein were required to be fulfilled. On a
    conjoint reading of the aforementioned provisions, it would, therefore, appear
H   that whereas for the purpose of revocation of the licence either on the ground
          U.0.1. v. MILLENIUM MUMBAI BROADCAST PVT. LTD. [S.B. SINHA, J.]    599

of default on the part of the licensee to pay the consideration in respect of A
the licence or for breach of the conditions of licence, 30 days' notice as also:
an opportunity of hearing was imperative. However, what could be done
without any notice, it will bear repetition to state, is encashment of bank
guarantee.

      It may be true that the mode and manner of compliance of the principle         B
of natural justice had not been specifically stated, but the same would not
mean that it was not necessary to be complied with at all.

      However, the letter dated 06.03.2003 was merely a demand. It was not
a notice in the true sense of the term as consequences for non-payment had           C
not been stated therein. The said letter was issued only by way of reminder.

      We have noticed hereinbefore that only because the licensee makes a
default, the same would not mean that the licence should stand revoked
without any further notice. Once it is held upon construction of the relevant
provisions of the conditions of licence as also the terms thereof that 30 days'      D
notice was required to be given before a licence is revoked, it cannot be said
that the said letter dated 6.3.2003 satisfied the requirements thereof.

       We may consider the matter from another angle. By reason of the
provisions contained in Clause 12.1 of the terms of the licence, not only the
revocation of licence for breach of any conditions contained in any agreement;       E
but also prevention thereof on any other ground which would include the
default in payment of licence fee would result in the consequence of debarring
the licensee from applying directly or indirectly for any FM Radio Station in
future. The consequence of the revocation of the said licence, therefore, is
penal in nature. Such penal provision is required to be strictly construed.
                                                                                     F
      It is in that view of the matter, before the licensor exercises his right to
revoke the licence, a notice was required to be issued. It having not been
done, the conclusion is irresistible that the purported revocation of licence
was a nullity.

      It is now a well-settled principle of law that a document must be              G
construed having regard to the terms and conditions as well as the nature
thereof.

     {See Pearey Lal v. Rameshwar Das, AIR ( 1963) SC 1703 and
Administrator of the Specified Undertaking of the Unit Trust of India & Anr.         H
    600                    SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A v. Garware Polyester Ltd., [2005] 10 SCC 682}.
          We, therefore, with respect, entirely agree with the Tribunal.

          So far as the contention of the learned Additional Solicitor General that
    the direction issued by the Tribunal, as quoted supra, is contrary to Section
B   14(1)(c) of the Specific Relief Act, 1963, is concerned, the same is stated to
    be rejected. The provisions of the Specific Relief Act would not apply to the
    contracts, which are governed by the statutory provisions.

          It is furthermore not in dispute that the Respondent or the licensees
    similarly situated had suffered a huge monetary loss. They made
C   representations for change of the licence fee structure. Admittedly, responding
    to the said representations the Union of India appointed a committee known
    as 'Dr. Amit Mitra Committee'. The said committee submitted its report on
    18.11.2003 recommending that fee structure applicable to Phase-I licensees be
    done away with and in its stead and place a new regime called the 'revenue
D   sharing regime' be brought in, in terms whereof the licensees would be
    required to pay licence fees @ 4% of the revenue generated. Jn terms of the
    said policy decision, all Phase-I licensee would be permitted to migrate to the
    new revenue sharing system in Phase-II.

          The Telecom Regulatory Authority of India released a consultation
E paper on or about 14.04.2004 on the basis of the recommendations of the said
    committee.

          It is stated that on the relevant date, namely 20.04.2004, none of the
    Phase-I licensees in Mumbai had co-located on a common transmission tower
    nor had the Appellant granted any extension or assurance that permit the
F   licensees would be permitted to continue broadcasting from independent
    individual station/facilities. Whereas the Respondent herein has expressed its
    desire not to make any broadcast on the expiry of the terms of the licence,
    other licensees allegedly continued to do the same, although the tenure of
    licence expired, it is in that situation, the Respondent took the stand that it
G   should be treated alike the other four licensees, who are continuing to
    broadcast despite the fact that no further extension had been granted even
    to them by the Union of India, although they had paid the revenue therefor.

          Our attention, in this connection, has been drawn to the provisions as
    regard migration for Phase-I to Phase-II, as laid down in the policy decision,
H   which is as under:
              U.O.I. v. MILLENIUM MUMBAI BROADCAST PVT LTD. [SB SINHA, J.]      60)


-           "!. Licensees of Phase-I, who have actually operationalized their
            channels would be given the option to Migrate to Phase 2 Policy
                                                                                        A

            Regime. They will have to exercise their initial option by the prescribed
            date to automatically migrate to Phase 2 Policy regime in accordance
            with the terms and conditions of migration or continue under Phase-
            ! or surrender their licences with one month's notice."
                                                                                        B
          This Court at this stage is not concerned with the question as to
    whether the Respondent has fulfilled the said conditions or not; but admittedly,
    the Tribunal proceeded on the basis that the licence having not been validly
    revoked, the same continued to be operative.

          The Tribunal, in terms of Section 14 of the Telecom Regulatory Authority      C
    of India Act, 1997, has a wide power. The Respondent in their application,
    inter alia, prayed for the following reliefs :

                "Pass an order directing the TRAI and the respondent to provide
            an appropriate migration option to the Petitioner to migrate to new         D
            license terms keeping in mind that the Petitioner has invested large
            sums of money in the radio broadcasting business, has paid a sum
            appx. Rs. 21 crores since 29.4.2002 to the respondent and has not been
            able to broadcast sicne 29.4.2004 due to the arbitrary implementation
            by the respondent of the Cabinet order communicated to the Petitioner
            vide guidelines dated 31.12.2001."                                          E
          The Appellate Tribunal only directed the Appellant to treat the
    Respondent to be entitled to the benefit of the change in the policy decision
    as regard payment of different mode of licence as the other existing licence
    holders, indisputably, have been given an option to migrate from the fixed
    licence fee regime to the revenue sharing regime.                                   F
          We may, however, notice that indisputably the Respondent had paid the
    entire licence fee in respect of the second year. It is interesting to note that
    before the Delhi High Court itself, the Appellant raised the following
    contention, which was recorded by the High Court in its order dated 12.04.2005:     G
                "Learned counsel for the Respondent on instructions from Shri
            L.P. Singh, Assistant Engineer of the respondent states that respondent
            No.3 is not aware of the fact that the petitioner had stopped broadcast
            of his FM Channel and in these circumstances the notice dated 19.4.04
            read with Corrigendum dated 21.4.04 had been issued upon the                H
    602                       SUPREME COURT REPORTS [2006) SUPP. I S.C.R.

A              petitioner raising a demand for the period subsequent to the cessation
               of the broadcast by the petitioner. It is submitted on behalf of the
               respondent that the petitioner having stopped the broadcast would
               not be liable to pay the charges demanded in these communications.
               Jn these circumstances, nothing survives in this application and the
               same is accordingly disposed of."
B
           Having noticed that the Respondent had complied with its interim order
    by depositing the requisite amount, the High Court allowed the Appellant to
    withdraw the said sum of Rs.23 lacs and also encash the bank guarantee
    furnished ~y the Appellant for another sum of Rs.23 lacs, the High Court
C   directed:

              " .... The petitioner shall not be liable for any further amount on account
              of the FM Broadcast which is the subject matter of the writ petition."

           We, therefore, are of the opinion that the Tribunal did not exceed its
D   jurisdiction in issuing the impugned directions.

          For the reasons aforementioned, we are of the opinion that no case has
    been made out for our interference with the impugned judgment of the Appellate
    Tribunal.

             This appeal is dismissed accordingly. No costs.
E
    v.s.s.                                                          Appeal dismissed.