1. These Review Applications have been filed inter-alia to review the orders of this Tribunal dated 28.02.2012, which was modified by an order dated 12.4.2012 in Misc. Application No. 252 of 2012 filed in Petition No. 28 of 2012.

In Petition No. 71 of 2012, the Review Application has been filed also in respect of the order dated 13.3.2012. These Petitions involve a question as regards interpretation of a circular letter dated 20.01.2010 in respect of Assam and North-East Telecom Circles.

2. Be it mentioned that Cellular Operators Association of India and other operators filed a petition before this Tribunal questioning a purported clarification issued by the Respondent specifying the quantum of penalty to be levied for non-filing of the CAF Forms. The said petition was registered as Petition No. 252 of 2011.

An interim order was passed therein to the effect that those Petitioners, who had been paying penalty at the enhanced rate would continue to do so but the others, who were not paying the amount of penalty in terms of the said clarificatory circular, need not pay the enhanced penalty.

3. The said petition has been disposed of by this Tribunal by a judgment and order dated 12.04.2012.

Cellular Operators Association of India and others also filed a Petition before this Tribunal, which was marked as Petition No. 15 of 2012.

In the said Petition, the Petitioner questioned the validity of orders dated 20.7.2010 and 20.01.2010.

Therein, the following prayer was made :-

"Restrain the Respondent No. 1 from treating the customers acquired by the Petitioners on basis of Voter's Identity Cards issued prior to 2008 on basis of Caste and Domicile Certificates issued by Village Panchayat Head and/or equivalent authority as unverified subscribers and imposing penalty on the Petitioners for the same."
4. The contentions, which were raised by the Petitioners in Petition No. 15 of 2012, were that there was no reason as to why the certificate issued by the Village Panchayat Head and Caste & Domicile Certificates with photograph issued by the State Governments as proof of identity and address shall not be considered to be valid proof of identity and, thus, no penalty could have been levied as in the interregnum the Petitioners have supplied sim cards to the customers on the basis of the said documents.

By reason of an order dated 20.7.2010, it was inter-alia observed :-

"Only Voter's Identity cards (Issued from 2008), which carry various security features such as hologram etc. are acceptable as proof of Identity card address.

Therefore, as many as 8 documents were discontinued from the list of proof of Identity and address.

Further, Voters I-Card issued from 2008 having Hologram only were to be accepted.

The Petitioners are contesting only 2 documents. However, for rest 6 documents they are not contesting."

5. This Tribunal in the said petition, raised three principal questions :-

"(i) Whether in a case of this nature, the doctrine of eclipse and/or principles analogous thereto shall be applicable;

(ii) Whether the Interregnum period shall be treated to be one where subscribers have illegally been given SIM cards; and

(iii) Whether the doctrine of proportionality has any application to the facts and circumstances of the present case."

6. It was inter-alia opined :-

"At this stage it appears that no cogent reason has been assigned as to why same documents which were treated to be invalid for the purpose of customer verification for the period in question and then again found to be valid."
7. The respective petitioners were asked to file separate petitions on the premise that even a tentative finding is difficult to be arrived at with regard to the question as to whether the penalty levied covers the period after 20.7.2010 or before the said date.

Paragraphs 18 sand 19 of the said order read as under :-

"18. In fact, we have been shown in few cases that if POA and POI is considered on the basis of Gram Panchayat and caste certificate, the compliance will be more than 95%. However, we will have to see the factual aspects in each petition for each circle.

19. We are of the view that each petition requires detailed examination after filing of reply by the respondent. However, keeping in view the interest of both the parties into consideration, we are of the opinion that interest of justice will be sub-served if the petitioners are directed to pay the 25% of the penalty imposed by the respondent within a period of one week. This order would, however, be subject to any other or further order which may be passed by the Tribunal."

8. It was furthermore stated -

"20. Idea Cellular, Vodafone, Dishnet and Reliance Communication have filed only one petition. The petitions filed by the aforementioned operators shall be confined to the State of Assam only. If the licensees intend to question the penalty imposed by the respondent on them in respect of North-Eastern states, they may file separate petitions."
9. Several petitions thereafter were filed by several operators.

The said operators also filed applications for clarification of the order dated 06.02.2012 passed in Petition No. 25 of 2012, contending that the interim order of stay passed in Petition No. 252 of 2011, should also be applied in those cases.

10. Be it mentioned that from the order dated 06.02.2012, it does not appear that the Petitioners have brought to the notice of this Tribunal the interim order passed in the aforementioned Petition No. 252 of 2011 or sought for any relief on that basis.

11. In view of the aforementioned application for clarification, this Tribunal by an order dated 28.02.2012 upon taking into consideration the relevant portions of the order dated 18.5.2011 and 03.6.2011, the validity whereof was questioned in Petition No. 252 of 2011, opined :-

"8. While the question in Petition No. 252 of 2011 relates to the way of calculating the penalty amount in a slab system, the present petitions relate to the matter of considering the certain documents for the proof of address and proof of identification etc. The order in Petition No. 252 of 2011 was passed on the general principles.

Therefore, we are of the opinion that the orders dated 18.5.2011 and 03.6.2011 passed in Petition No. 252 of 2011 are applicable to these petitions also.

9. Regarding our order dated 06.02.2012, the order was passed on the consideration that no cogent reason were assigned for certain documents like certificate of photo identity issued by Village Panchayat Head and Caste and Domicile certificate with photo issued by State Government which were considered valid for the proof of identification and address till 19.07.2010 and again considered suitable for the same purpose after 30.03.2011. Here, we had directed to deposit 25% of the penalty imposed by the respondent within a period of one week.

10. Therefore, we would like to clarify our orders dated 18.5.2011 and 03.6.2011 passed in Petition No. 252 of 2011 will be applicable to these petitions also as a matter of principle and furthermore, only 25% of the penalty relating to failed CAF forms based on photo identity issued by Village Panchayat Head and Caste and Domicile certificate with photo issued by State Government shall be payable as an interim measure."

12. Three separate petitions were filed by Dishnet Wireless Ltd., Vodafone Spacetel Ltd. and Reliance Telecom Ltd. pursuant to the leave granted to them by this Tribunal by its order dated 06.02.2012 in Petition No. 26 of 2012.

In those petitions, by an order dated 13.3.2012 it was directed as under:-

"5. Therefore, it is directed that our orders dated 18.5.2011 and 03.6.2011 passed in Petition No. 252 of 2011 will be applicable to these petitions as a matter of principle and only 25% of the penalty relating to failed CAF forms based on photo identity issued by Village Panchayat Head and Caste and Domicile certificate with photo issued by State Government activated between 20.7.2010 to 31.03.2011 shall be payable as an interim measure. However, this order will be subject to the final order in these petitions as well as in Petition No. 252 of 2011."
13. Indisputably, the effect of the aforementioned orders attracted two different interpretations, one by the Petitioner and the other by the DoT.

14. A question arose as to whether the Petitioners have complied with the said orders or not

A chart was handed over to the Petitioners by Mr. Kohli appearing on behalf of the Respondent on 30th March 2012, stating that a sum of Rs.151 crores (approx.) was to be paid by the Petitioners.

Mr. Chawla appearing on behalf of the Petitioners was requested to seek instructions with regard thereto.

By an order dated 18.6.2012, this Tribunal opined :-

"6. At present, Petition No. 252 of 2011 has been disposed of finally. Therefore, both the parties are bound by that order. We have mentioned there clearly that 25% of the penalty related to the violations based on photo identity issued by Village Panchayat Head and Caste and Domicile certificate with photo issued by State Government activated between 20.7.2010 to 31.03.2011 shall be payable.

7. We do not find any ambiguity in the order. We have considered to provide partial relief as an interim measure with regard to penalty imposed due to failed CAF forms related to photo identity issued by Village Panchayat Head and Caste and Domicile certificate with photo issued by State Government. No other certificate has been considered. So there is no ambiguity in the order. However, Mr. Chawla appearing on behalf of the petitioner stated that after getting the clarification on Tribunal's order dated 6.2.2012, he will be worst off than the relief he got it earlier."

15. It was observed :-

"8. We are of the view that we have clarified the position as it stands. The petitioner never came to the Tribunal for review of our interim order. We cannot look into the aspect whether the party to the lis is well off or worst off. However, the hearing of these petitions will be expedited."
16. The Review Applications appears to have been filed based on the aforementioned observations.

17. Applications for condonation of delay have also been filed, wherein inter alia it was contended :-

"13. That however, the Respondent started threatening the Petitioner with invocation of the Bank Guarantees on the ground that the Petitioner had not fulfilled the condition of the interim order passed by this Hon'ble Tribunal. This was also agitated by the Respondent before this Hon'ble Tribunal during the course of hearing of the above Petition. The said stand of the Respondent was duly refuted by the Petitioner, however, this Hon'ble Tribunal in its order dated 18.06.2012 has clarified that this Hon'ble Tribunal in its order dated 28.02.2012 had considered to provide partial relief as an interim measure with regard to penalty imposed due to failed CAF forms related to photo identity issued by Village Panchayat Head and Caste and Domicile certificate with photo issued by State Government. No other certificate had been considered. So there is no ambiguity in the order."
18. Mr. Maninder Singh, learned senior counsel and Mr. Chawla appearing on behalf of the Petitioners would contend that in view of the categorical and unequivocal order passed by this Tribunal in Petition No. 26 of 2012 wherein this Tribunal categorically mentioned all the three documents, there is no reason as to why on an application filed by the Petitioners themselves for clarification thereof, the said order dated 06.02.2012 could be modified.

19. Learned counsel in support of the said contentions, inter-alia relied upon the decisions of the Supreme Court of India in R. K. Khandelwal Vs. State of Uttar Pradesh and Others reported in   (1981) 3 SCC 592 , Makeshwar Nath Srivastava Vs. The State of Bihar and Others reported in  1971 (1) SCC 662 , Banarsi and Others Vs. Ram Phal reported in (2003) 9 SCC 606.

20. Mr. Chandhiok, learned Additional Solicitor General appearing on behalf of the Respondent, on the other hand, submitted :-

(i) No case has been made out for condonation of delay of about four months;

(ii) From the order dated 13.3.2012 it would appear that giving a new connection on the basis of the Photo Identity Card was not in issue;

(iii) There cannot be a review of an order reviewing an earlier order;

(iv) The orders passed by this Tribunal in February, March 2012 having been merged with this Tribunal's order dated 18.6.2012, no relief can be given to the Petitioners.

21. Learned Additional Solicitor General of India also handed over a chart showing that a sum of Rs.151 crores (approx.) is said to be due from the Petitioners.

22. In this Tribunal's order dated 06.02.2012 passed in Petition No. 26 of 2012, this Tribunal applied the doctrine of 'Eclipse'. Although therein, three documents were mentioned, inadvertently the effect of the issuance of the sim cards on the basis of the Voter Identification Cards with hologram had not been considered in details. It may be true that some of the State Governments of the North-East Circles contended that the Voter Identification Cards should be taken into consideration but the DoT evidently held a different opinion.

23. The Petitioners in their purported applications for clarification asked for consideration of the interim order passed in Petition No. 252 of 2011. We have noticed heretobefore that the said contention had not been raised by the Petitioners while interim prayer made by them in Petition No. 26 of 2012. It was, therefore, not a case where an order dated 06.02.2012 was required to be clarified. The learned counsel for the parties argued, as if the said application for clarification was one for modification. In that view of the matter, the order of this Tribunal dated 28.02.2012 cannot be said to be wholly without jurisdiction. The order of clarification in effect and substance an order modifying the earlier order dated 06.02.2012.

24. This Tribunal had granted benefits to the Petitioners by modifying the interim order passed in the light of the interim orders passed in the aforementioned Petition No. 252 of 2011. The discretionary jurisdiction of this Tribunal, in that view of the matter, could be invoked for the purpose of modification of the said order.

The parties were fully heard. They were also put on notice as regards the plea of the Respondent by reason of the chart handed to Mr. Chawla by Mr. Kohli.

25. It is not a case where the parties were not heard on the said issue. It was contended by learned counsel appearing on behalf of the Respondent :-

"Even the amount of the dues which was payable in terms of the order of this Tribunal on 18.5.2011 has not yet been paid."
26. In the aforementioned context only, the issue regarding the effect of the order passed by the Respondent on 18.5.2011 and 03.6.2011 had been taken into consideration. It is in the aforementioned situation, this Tribunal also considered the order dated 06.02.2012.

27. The order of this Tribunal dated 06.02.2012, moreover, was passed subject to any other or further order, which may be passed by this Tribunal.

Yet again, by an order dated 13.3.2012 passed in Petition No. 70 of 2012, the order of this Tribunal dated 28.02.2012 was reiterated.

If the Petitioners thought that the said orders dated 28.02.2012 and 13.3.2012 have wrongly been passed by this Tribunal, they should have filed an applications for review immediately thereafter.

28. It is not a case where the order dated 28.02.2012 was passed without hearing the Petitioners on the said question. Only, the questions which were raised by the Petitioners in Petition No. 26 of 2012, which was confined to State of Assam only, had been re-considered. It has not been contended before us that with regard to the Voters Identity Card, the doctrine of eclipse would apply.

29. The question with regard to entertaining applications for grant of sim cards on the basis of Voters Identification Cards were not the subject matter of orders dated 20.7.2010 and 15.7.2011. The order of clarification dated 28.02.2012 in effect and substance was an order for modification. Moreover, this Tribunal could review its own order suo moto in exercise of its inherent jurisdiction. It could have corrected an order appearing on the face thereof vis-a-vis the order impugned having found out an error on its part.

In a case of this nature, thus, the doctrine of 'Actus curiae neminem gravabit' may be held to be applicable.

30. In the decisions relied on by the Petitioners, the Supreme Court inter-alia opined that in a case where an order with regard to the quantum of higher penalty passed by a court of law has not been appealed against, the court cannot impose a higher penalty and condemn him to a position worse than the one he would be in, if he had not hazarded to file an appeal.

In Banarsi (supra), the Supreme Court observed :-

"22. For the foregoing reasons we are of the opinion that the first appellate court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first appellate court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first appellate court."
31. An application for review of a judgment cannot be treated as an appeal. Recently, in Eswara Communications (S. Channel) Vs. Zee Entertainment Enterprises Limited reported in 2012 (3) JTBL 125, it was so held.

32. Moreover, the Petitioners obtained benefits in terms of this Tribunal's order dated 28.02.2012, in as much as the interim order passed in Petition No. 252 of 2011 had also been taken into consideration. Even in its order dated 18.6.2012, the final judgment and order passed in Petition No. 252 of 2011 has been taken into consideration.

33. A party to a lis, in our considered opinion, cannot be permitted to take benefit of a part of the order and question the other part and that too after a period of four months.

34. As an observation made by this Tribunal that the Petitioners had not filed any application for review of the order dated 28.02.2012, these applications for review with applications for condonation of delay have been filed, presumably relying on or on the basis thereof.

35. We, therefore, are of the opinion that in the peculiar facts and circumstances of this case and particularly, having regard to the fact that the petitions have been directed to be heard out expeditiously, it is not a fit case, where either the delay should be condoned or the orders dated 28.02.2012 and 13.3.2012 should be reviewed on merit.

We have dealt with the application on merit as the learned counsel for the parties also argued the same in great details.

36. These applications are, therefore, dismissed.

37. We may, however, place on record that the learned Additional Solicitor General stated that replies to the petitions will be filed in two days. In that view of the matter, it may be possible for this Tribunal to hear out the petitions on merit on the next date fixed.

It must also be mentioned that the chart filed by the learned Additional Solicitor General may not be correct. A copy of the said chart having been handed over to the learned counsel for the Petitioners, it would be open to them to demonstrate as to how much amount would be due from them in the light of this Tribunal's orders dated 28.02.2012 and 13.3.2012. The Petitioners may, without prejudice to their rights and contentions, having regard to the fact that the interpretation of the aforementioned orders remained pending for a long time and this Tribunal passed a clarificatory order only on 18.6.2012, deposit the admitted amount in terms of their own calculation.

Such deposit, if any, shall be subject to any other or further order which may be passed at the time of hearing. In a case of this nature, even the equities can be adjusted.