Note:

Pari Delicto: When both parties are in default

Facts:

• The Appellant, a telecom operator, applied for Unified Access Service Licences (UASL) for 21 service areas on 3 September 2007, paying an Entry Fee of Rs 1454.94 crores.
• The Respondent, Union of India, represented by the Department of Telecommunications, granted UASLs under the "First Come First Serve" policy for 2G spectrum allocation.
• The Supreme Court, in Centre for Public Interest Litigation v. Union of India (2012) 3 SCC 1 (CPIL), declared the 2G spectrum allocation policy illegal, resulting in the quashing of the UASLs, including those granted to the Appellant.
• The Appellant subsequently filed a petition before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) seeking a refund of the Entry Fee. This petition was dismissed, citing the judgment in CPIL (supra) and the Appellant's ongoing criminal trial.
• The Appellant filed an appeal to the Supreme Court, aggrieved by the TDSAT's judgments, seeking civil appeals under Section 18 of the Telecom Regulatory Authority of India Act, 1997, and the revival of earlier withdrawn appeals.
  
  

Background/ Procedural Posture:

Supreme Court Judgment in CPIL Case:

• On 2 February 2012, the Supreme Court, in Centre for Public Interest Litigation (CPIL) v. Union of India, declared that the 2G spectrum allocation policy was illegal.
• The UASLs granted under this policy, including those to the appellant, were quashed.
  
  
  

First Petition Before TDSAT:

• On 25 May 2012, the Appellant filed a petition before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) seeking a refund of the Entry Fee.
• On 16 September 2015, TDSAT dismissed the petition, holding that:
  

1. The quashing of licences by the Supreme Court does not equate to the UASL agreements becoming void under Section 65 of the Indian Contract Act,1982.
2. The UASL agreements were not void under Sections 23 and 56 of the Indian Contract Act, 1982.
3. Restitution under Section 65 was not applicable due to the principle of in pari delicto potio rest condition defendantis (in equal fault, better is the condition of the possessor), as the Appellant was facing criminal charges.
   

Second Petition Before TDSAT:

• On 21 December 2017, the Appellant was acquitted of criminal charges by the Special Judge, CBI.
• On May 13, 2016, the Appellant withdrew civil appeals with the liberty to refile if needed. Subsequently, they filed a petition before TDSAT seeking a refund post-acquittal.
• On December 11, 2018, TDSAT dismissed the second petition, citing it as a repeated attempt for the same relief without prior leave from the previous judgment.
  
  

Present Appeals and Revival of Earlier Appeals:

The present appeal was raised by the Appellant seeking a refund of the Entry Fee paid for 2G licenses. This appeal arose because of:

1. The TDSAT's dismissal of both their petitions.
2. The Supreme Court's earlier permission to re-approach the Court.
3. The Appellant's contention that the refund is justified under civil, contractual, and constitutional law following their acquittal in the criminal case.
   
   

Main issue:

Whether the Appellant was in pari delicto with the Union Government? (Paragraph 20)