Pinaki Chandra Ghose JUDGMENT
1. The Respondents in Civil Appeal Nos. 2306, 2307, 2308 and 4530 of 2010 who are also the Appellants in connected Civil Appeal Nos. 2309, 5193 and 5202 of 2010 had approached the High Court of Delhi by filing the Writ Petitions (out of which the above appeals have arisen) Under Article 226 of the Constitution of India seeking interference of the High Court with the action of the Union of India in forfeiting/withholding the reserved license fee, 50 percent of which was deposited by the Respondents (referred to herein as "the licensees") as a condition of their bids for obtaining FM Broadcasting license. According to the licensees, there was a unilateral departure by the Union of India from the terms of the tender document which had surfaced when the LOI was issued on 02.08.2000. It is the specific case of the licensees that the said departure became even more apparent from the Draft License Agreement which was forwarded to them by the Union. The contention before the High Court was to the effect that in view of the aforesaid unilateral departure, the Union was in breach of the tender conditions. That apart, it was also contended that in the absence of any specific clause in the tender document permitting forfeiture/retention of the license fee, the action in this regard were totally unjustified. The licensees also contended that the Union was not even justified in forfeiting the earnest money inasmuch as it was the Union which had acted in breach of the Agreement and there was no willful default on the part of the licensees to act in terms of the offers made by them. The learned Single Judge of the High Court dismissed the writ petitions filed by licensees on the ground that the departure from the conditions of the tender document as made in the LOI and the Draft License Agreement were not of significance. The learned Single Judge also took the view that retention/forfeiture of the amount by the Union would be justified as the action of the licensees in refusing to act in terms of the LOI granted to them had occasioned loss to the Union.
2. The licensees carried the matter in appeal before the Division Bench of the High Court. The Division Bench reversed the view taken by the learned Single Judge, inter alia, on the ground that the departure from the terms of the tender document were major in nature amounting to imposition of new conditions beyond those contemplated in the tender document. The Division Bench of the High Court, on an exhaustive consideration of the relevant clauses of the tender document, also came to the conclusion that there was no power vested in the Union to forfeit/withhold the license fee. The Division Bench, therefore, directed for refund of the License fee but without any interest. Insofar as earnest money is concerned, the Division Bench took the view that the forfeiture of the said earnest money was justified.
3. Against the grant of refund of license fee, the Union has approached this Court by means of Civil Appeal. Nos. 2306, 2307, 2308 and 4530 of 2010 whereas against the refusal of interest on the refund and the forfeiture of the earnest money, the licensees have preferred Civil Appeal Nos. 2309, 5193 and 520........