The DoT on Monday moved the Supreme Court challenging TDSAT’s April order that directed the release of performance bank guarantees furnished by Unitech at the time of grant of Unified Access Services Licence (UASL) in 2008.
A bench headed by Justice J Chelameswar posted the matter for hearing next week after senior counsel Guru Krishna Kumar, appearing for the department of telecommunications, said it will give details of the dues that the company is liable to pay it.
According to sources, DoT has collected about Rs 350 crore from new players, including Unitech Wireless (Uninor), Etisalat DB, Sistema Videocon and Loop, and others. Unitech is one of the operators whose licences were cancelled by the apex court in February 2012.
Stating that the TDSAT’s order has serious ramifications of a fiscal nature arising from the premature release of the PBGs in a situation where the licensee has not cleared all dues as mandatorily required by the UASL, DoT said that the conclusion of the tribunal that the PBG is intended only to secure the roll out obligation and that upon completion of such roll obligation, the PBG is to be released is erroneous as it fails to appreciate that the PBG may be invoked to secure all obligations of a licensee under the licence and not merely to the roll out obligation.
According to the government, in event of termination of the licence, the bank guarantee was to be released to the licensee only after ensuring clearance of all dues.
The PBG was intended to cover not only the liquidated damages for non-performance of the roll out obligations but also penalties for violation of any other terms of the UASL, it said, adding that the PBG is an independent contract.
The UASLs were initially issued to eight corporate entities of Unitech for various circles in 2008 and the entities had later merged. DoT had imposed liquidated damages upon Unitech in 2010 for delay in fulfilling the 10% roll out obligations. As per the conditions of the UASL, the telcos were required to roll-out their networks within one year from the date of allocation of spectrum.
The company had challenged the same before the Telecom Disputes Settlement And Appellate Tribunal which in January 2012 had directed DoT to refund the amount deposited by the company with interest at the rate of 12% per annum and had asked Unitech to furnish Performance Bank Guarantees.
However, pursuant to the SC cancelling all 122 2G spectrum allocations, Unitech had moved the tribunal seeking a direction to the DoT to release the PBG submitted by it as it had completed the 2nd phase roll out obligations.
The tribunal had directed the return of the PBGs and had further imposed costs of Rs 25,000 per petition on DoT.