REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 423 OF 2010
Centre for Public Interest Litigation and others ...Petitioners
versus
Union of India and others ...Respondents
With
WRIT PETITION (CIVIL) NO. 10 OF 2011
Dr. Subramanian Swamy ...Petitioner
versus
Union of India and others ...Respondents
J U D G M E N T
G.S. Singhvi, J.
1. The important questions which arise for consideration in these petitions,
one of which has been filed by Centre for Public Interest Litigation, a registered
Society formed by Shri V.M. Tarkunde (former Judge of this Court) for taking
up causes of public interest and conducting public interest litigation in an
organised manner, Lok Satta, a registered Society dedicated to political
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governance, reforms and fight against corruption, Telecom Watchdog and
Common Cause, both Non-Governmental Organisations registered as Societies
for taking up issues of public importance and national interest, Sarva Shri J.M.
Lingdoh, T.S. Krishnamurthi and N. Gopalasamy, all former Chief Election
Commissioners, P. Shanker, former Central Vigilance Commissioner, Julio F.
Ribero, former member of the Indian Police Service, who served as Director
General of Police, Gujarat, Punjab and C.R.P.F. and Commissioner of Police,
Mumbai, P.R. Guha, an eminent Senior Journalist and visiting faculty member
of various institutions including IIMs, IITs, FTII, IIFT, Delhi University,
Jawaharlal Nehru University and Jamia Milia Islamia University and Admiral
R.H. Tahiliyani, former Chief of Naval Staff, former Governor and former
Chairman of Transparency International India and the other has been filed by
Dr. Subramanian Swami, a political and social activist, are:
(i) Whether the Government has the right to alienate, transfer or
distribute natural resources/national assets otherwise than by following a
fair and transparent method consistent with the fundamentals of the
equality clause enshrined in the Constitution?
(ii) Whether the recommendations made by the Telecom Regulatory
Authority of India (TRAI) on 28.8.2007 for grant of Unified Access
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Service Licence (for short `UAS Licence') with 2G spectrum in 800, 900
and 1800 MHz at the price fixed in 2001, which were approved by the
Department of Telecommunications (DoT), were contrary to the decision
taken by the Council of Ministers on 31.10.2003?
(iii) Whether the exercise undertaken by the DoT from September 2007
to March 2008 for grant of UAS Licences to the private respondents in
terms of the recommendations made by TRAI is vitiated due to
arbitrariness and malafides and is contrary to public interest?
(iv) Whether the policy of first-come-first-served followed by the DoT
for grant of licences is ultra vires the provisions of Article 14 of the
Constitution and whether the said principle was arbitrarily changed by
the Minister of Communications and Information Technology
(hereinafter referred to as `the Minister of C&IT'), without consulting
TRAI, with a view to favour some of the applicants?
(v) Whether the licences granted to ineligible applicants and those
who failed to fulfil the terms and conditions of the licence are liable to be
quashed?
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2. For detailed examination of the issues raised by the petitioners, it will be
useful to briefly notice the history of the growth of telecommunications in the
country and the reforms introduced 1984 onwards.
3. In 1839, the first telegraph link was experimented between Calcutta and
Diamond Harbour covering 21 miles. In 1851, the telegraph line was opened
for traffic, mostly for the official work of the East India Company. In course of
time, telegraphy service was made available for public traffic. The Indian
Telegraph Act was enacted in 1885. It gave the exclusive privilege of
establishing, maintaining and working of "telegraphs" to the Central
Government. It also empowered the Government to grant licences on such
conditions and in consideration of such payments as it thought fit, to any person
to establish, maintain or work a telegraph in any part of India.
4. After independence, Government of India took complete control of the telecom
sector and brought it under the Post & Telegraph Department. One major step taken for
improving telecommunication services in the country was the establishment of a modern
telecommunication manufacturing facility at Bangalore under the Public Sector, in the
name of "Indian Telephone Industries Ltd." The reforms in the telecommunication sector
started in 1984 when the Centre for Development of Telematics (C-DoT) was set up for
developing indigenous technologies and permissions were given to the private sector to
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manufacture subscriber-equipment. In 1986, Mahanagar Telephone Nigam Ltd.,
(MTNL) and Videsh Sanchar Nigam Ltd., (VSNL) were set up.
5. The New Economic Policy of India was announced on 24.7.1991. It was
aimed at meeting India's competitiveness in the global market; rapid
growth of exports, attracting foreign direct investment; and
stimulating domestic investments. With a view to achieve standards
comparable to international facilities, the sub-sector of Value Added
Services was opened up to private investment in July 1992 for the
following services: (a) Electronic Mail; (b) Voice Mail; (c) Data
Services; (d) Audio Text Services; (e) Video Text Services; (f) Video
Conferencing; (g) Radio Paging; and (h) Cellular Mobile Telephone.
In respect of services (a) to (f), the companies registered in
India were permitted to operate under a licence on non-exclusive
basis. For services covered by (g) and (h) mentioned above, keeping
in view the constraints on the number of companies that could be
allowed to operate, a policy of selection through a system of tendering
was followed for grant of licences.
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National Telecom Policy 1994
6. National Telecom Policy 1994 (NTP 1994) was announced on 13.5.1994.
This was the first major step towards deregulation, liberalization and private
sector participation. The objectives of the policy were:
(i) affording telecommunication for all and ensuring the
availability of telephone on demand;
(ii) providing certain basic telecom services at affordable and
reasonable prices to all people and covering all villages;
(iii) giving world standard telecom services; addressing
consumer complaints, dispute resolution and public
interface to receive special attention and providing widest
permissible range of services to meet the customers'
demand and at the same time at a reasonable price;
(iv) creating a major manufacturing base and major export of
telecom equipment having regard to country's size and
development; and
(v) protecting the defence and security interest of the
country.
7. In furtherance of NTP 1994, licences were granted to eight Cellular
Mobile Telephone Service (CMTS) operators, two in each of the four
metropolitan cities of Delhi, Mumbai (Bombay), Kolkata (Calcutta) and
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Chennai (Madras). In the second phase, in December 1995, after following a
competitive bidding process, 14 CMTS licences were awarded in 18 state
circles, 6 Basic Telephone Services (BTS) licences were awarded in 6 state
circles and paging licences were awarded in 27 cities and 18 state circles.
However, this did not yield the intended results apparently because revenue
realised by the cellular and basic operators was less than the projections and the
operators were unable to arrange finances for their projects.
New Telecom Policy 1999
8. On the directions of the Prime Minister, a high level Group on
Telecommunications (GoT) was constituted on 20.11.1998 to review the
existing telecom policy and suggest further reforms. On the basis of the report
of the GoT, a draft New Telecom Policy 1999 (NTP 1999) was formulated.
After its approval by the Cabinet, NTP 1999 was announced to be effective
from 1.4.1999. NTP 1999 had the following objectives:
(i) to make available affordable and effective communications for
the citizens, considering access to telecommunications as utmost
important for achievement of the country's social and economic
goals;
(ii) to provide universal service to all uncovered areas including the
rural areas and also provide high level services capable of
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meeting the needs of the country's economy by striking a
balance between the two;
(iii) to encourage development of telecommunication in remote,
hilly and tribal areas of the country;
(iv) to create a modern and efficient telecommunications
infrastructure taking into account the convergence of IT, media,
telecom and consumer electronics which will in turn propel
India to become an IT superpower;.
(v) to convert PCOs wherever justified into Public Teleinfo centres
having multimedia capability such as Integrated Services
Digital Network (ISDN) services, remote database access,
government and community information systems, etc.;
(vi) to transform, in a time bound manner, the telecommunications
sector in both urban and rural areas into a greater competitive
environment providing equal opportunities and level playing
field for all players;
(vii) to strengthen research and development efforts in the country
and provide an impetus to build world class manufacturing
capabilities;
(viii) to achieve efficiency and transparency in spectrum
management;
(ix) to protect defence and security interests of the country; and
(x) to enable Indian Telecom Companies to become truly global
players.
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9. NTP 1999 categorized 8 services in the telecom sector, namely; (i)
Cellular Mobile Service Providers (CMSPs), Fixed Service Providers
(FSPs) and Cable Service Providers, collectively referred as `Access
Providers'; (ii) Radio Paging Service Providers; (iii) Public Mobile Radio
Trunking Service Providers; (iv) National Long Distance Operators; (v)
International Long Distance Operators; (vi) Other Service Providers,
(vii) Global Mobile Personal Communication by Satellite (GMPCS)
Service Providers; (viii) V-SAT based Service Providers. NTP 1999 dealt
with, and provided the framework for, all these categories of telecom
service providers.
10. The policy on spectrum management as enumerated in NTP 1999
was as under:
(i) Proliferation of new technologies and the growing demand for
telecommunication services has led to manifold increase in
demand for spectrum and consequently it is essential that the
spectrum is utilized efficiently, economically, rationally and
optimally.
(ii) There is a need for a transparent process of allocation of
frequency spectrum for use by a service provider and making it
available to various users under specific conditions.
(iii) With the proliferation of new technologies it is essential to
revise the National Frequency Allocation Plan (NFAP) in its
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entirety so that it becomes the basis for development,
manufacturing and spectrum utilization activities in the country
amongst all users. NFAP was under review and the revised
NFAP was to be made public by the end of 1999 detailing
information regarding allocation of frequency bands for various
services, without including security information.
(iv) NFAP would be reviewed no later than every two years and
would be in line with radio regulations of the International
Telecommunication Union (ITU).
(v) Adequate spectrum is to be made available to meet the growing
need of telecommunication services. Efforts would be made for
relocating frequency bands assigned earlier to defence and
others. Compensation for relocation may be provided out of
spectrum fee and revenue share.
(vi) There is a need to review the spectrum allocation in a planned
manner so that required frequency bands are available to the service
providers.
(vii) There is a need to have a transparent process of allocation of
frequency spectrum which is effective and efficient and the
same would be further examined in the light of ITU guidelines.
In this regard the following course of action shall be adopted viz.:
(a)spectrum usage fee shall be charged;
(b)an Inter-Ministerial Group to be called Wireless Planning
Coordination Committee, as a part of the Ministry of Communications
for periodical review of spectrum availability and broad allocation
policy, should be set up; and
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(c)massive computerization in WPC Wing would be started in the next
three months so as to achieve the objective of making all operations
completely computerized by the end of the year 2000.
(emphasis supplied)
Establishment of the Telecommunication Commission (for short, `the
Telecom Commission') and the Telecom Regulatory Authority of India.
11. On 11.4.1989, the Council of Ministers passed a resolution and decided
to establish the Telecom Commission. The relevant portions of that resolution
are extracted below:
"CABINET SECRETARIAT
New Delhi the 11th April, 1989
RESOLUTION
CONSTITUTION OF TELECOM COMMISSION
No. 15/1/2/87-Cab. 1. Telecommunication service is an
essential infrastructure for national development. It has impact on
social and economic activities. Besides, business, industry and
administration depends heavily on information and telecom for
productivity, efficiency and their day-to-day operations. Its
development, therefore, is vital for nation building.
In order to promote rapid development in all aspects of
telecommunications including technology, production and
services, the Government of India consider it necessary to set up an
organisation, which will have responsibility in the entire field of
telecommunications.
After careful consideration, the Government of India have
decided to establish a Telecommunication Commission with full
executive and financial powers modelled on the lines of the
Atomic Energy Commission.
2. Constitution of the Commission
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(a) The Commission will consist of full time and part time
Members;
(b) The Secretary to the Government of India in the Department of
Telecommunications shall be the ex-officio Chairman of the
Commission;
(c) The full time Members of the Commission shall be ex-officio
Secretary to the Government of India in the Department of
Telecommunications. One of these Members shall be Member
for Finance; and
(d) The Secretary and the full time Members of the Commission
shall be drawn from the best persons available, including from
within the Department of Telecommunications.
3. Functions
The Telecom Commission shall be responsible :
(a) For formulating the policy of the Department of
Telecommunications for approval of the Government;
(b) For preparing the budget for the Department of
Telecommunications for each financial year and getting it
approved by the Government; and
(c) Implementation of the Government's policy in all matters
concerning telecommunication.
4. Within the limits of the budget provision, approval by the
Parliament, the Commission shall have the powers of the
Government of India, both administrative and financial, for
carrying out the work of the Department of
Telecommunications.
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5. Chairman
(a) The Chairman, in his capacity as Secretary to the
Government of India in the Department of
Telecommunications, shall be responsible under the
Minister of Communications for arriving at decisions on
technical questions and advising Government on policy
and allied matters of telecommunication. All
recommendations of the Commission on policy and allied
matters shall be put to the Minister of Communications
through the Chairman.
(b) In case of any difference of opinion in the meetings of
the Commission, the decision of the Chairman shall be
final, but in financial matters, Member (Finance) of the
Commission will have access to Finance Minister.
(c) The Chairman may authorise any Member of the
Commission to exercise on his behalf, subject to such
general or special orders as he may issue from time to
time, such of his powers and responsibilities as he may
decide.
6. Member Finance
The Member of Finance shall exercise powers of the
Government of India in financial matters concerning the
Department of Telecommunications except in so far as such
powers have been, or may in future be conferred on or
delegated to the Department.
7. The Commission shall have power to frame its own rules and
procedures. The Commission shall meet at such time and
places as fixed by the Chairman.
8. The Telecom Commission shall take over all legal and statutory
authority vested with the Telecom Board."
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12. The Rules of Business for the Telecom Commission were also framed in
1989. In terms of para 2 of the Rules of Business read with item 1 of Annexure
`A' appended thereto, all important matters of policy relating to
Telecommunications are required to be brought before the Telecom
Commission.
13. In 1997, Parliament enacted the Telecom Regulatory Authority of India
Act, 1997 (for short, `the 1997 Act') to provide for the establishment of TRAI.
By Act No.2 of 2000, the 1997 Act was amended and provision was made for
establishment of the Telecom Disputes Settlement and Appellate Tribunal
(TDSAT). Sections 11 and 13, which have bearing on the decision of these
petitions read as under:
"11. Functions of Authority. - (1) Notwithstanding anything contained
in the Indian Telegraph Act, 1885 (13 of 1885), the functions of the
Authority shall be to-
(a) to make recommendations, either suo motu or on a request from
the licensor, on the following matters, namely:-
(i) need and timing for introduction of new service provider;
(ii) terms and conditions of licence to a service provider;
(iii) revocation of licence for non- compliance of terms and
conditions of licence;
(iv) measures to facilitate competition and promote efficiency in the
operation of telecommunication services so as to facilitate
growth in such services;
(v) technological improvements in the services provided by the
service providers;
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(vi) type of equipment to be used after inspection of equipment
used in the network;
(vii) measures for the development of telecommunication
technology and any other matter relatable to telecommunication
industry in general;
(viii) efficient management of available spectrum;
(b) discharge the following functions, namely:-
(i) ensure compliance of terms and conditions of licence;
(ii) (ii)notwithstanding anything contained in the terms and
conditions of the licence granted before the
commencement of the Telecom Regulatory Authority of
India (Amendment) Act, 2000, fix the terms and
conditions of inter-connectivity between the service
providers;
(iii) ensure technical compatibility and effective inter-
connection between different service providers;
(iv) regulate arrangement amongst service providers of
sharing their revenue derived from providing
telecommunication services;
(v) lay-down the standards of quality of service to be
provided by the service providers and ensure the quality
of service and conduct the periodical survey of such
service provided by the service providers so as to protect
interest of the consumers of telecommunication service;
(vi) lay-down and ensure the time period for providing local
and long distance circuits of telecommunication between
different service providers;
(vii) maintain register of interconnect agreements and of all
such other matters as may be provided in the regulations;
(viii) keep register maintained under clause (vii) open for
inspection to any member of public on payment of such
fee and compliance of such other requirement as may be
provided in the regulations;
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(ix) ensure effective compliance of universal service
obligations;
(c) levy fees and other charges at such rates and in respect of
such services as may be determined by regulations;
(d) perform such other functions including such administrative
and financial functions as may be entrusted to it by the
Central Government or as may be necessary to carry out the
provisions of this Act:
Provided that the recommendations of the Authority specified in
clause (a) of this sub-section shall not be binding upon the Central
Government:
Provided further that the Central Government shall seek the
recommendations of the Authority in respect of matters specified in
sub-clauses (i) and (ii) of clause (a) of this sub-section in respect of
new licence to be issued to a service provider and the Authority shall
forward its recommendations within a period of sixty days from the
date on which that Government sought the recommendations:
Provided also that the Authority may request the Central Government
to furnish such information or documents as may be necessary for the
purpose of making recommendations under sub-clauses (i) and (ii) of
clause (a) of this subsection and that Government shall supply such
information within a period of seven days from receipt of such
request:
Provided also that the Central Government may issue a licence to a
service provider if no recommendations are received from the
Authority within the period specified in the second proviso or within
such period as may be mutually agreed upon between the Central
Government and the Authority:
Provided also that if the Central Government having considered that
recommendation of the Authority, comes to a prima facie conclusion
that such recommendation cannot be accepted or needs modifications,
it shall, refer the recommendation back to the Authority for its
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reconsideration, and the Authority may within fifteen days from the
date of receipt of such reference, forward to the Central Government
its recommendation after considering the reference made by that
Government. After receipt of further recommendation if any, the
Central Government shall take a final decision.
(2) Notwithstanding anything contained in the Indian Telegraph Act,
1885 (13 of 1885), the Authority may, from time to time, by order,
notify in the Official Gazette the rates at which the telecommunication
services within India and outside India shall be provided under this
Act including the rates at which messages shall be transmitted to any
country outside India:
Provided that the Authority may notify different rates for different
persons or class of persons for similar telecommunication services and
where different rates are fixed as aforesaid the Authority shall record
the reasons therefor.
(3) While discharging its functions :under sub-section (1) or sub-
section (2) the Authority shall not act against the interest of the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality.
(4) The Authority shall ensure transparency while exercising its
powers and discharging its functions.
13. Power of Authority to issue directions. - The Authority may, for
the discharge of its functions under sub-section (1) of section 11, issue
such directions from time to time to the service providers, as it may
consider necessary:
Provided that no direction under sub-section (4) of section 12 or under
this section shall be issued except on the matters specified in clause
(b) of sub-section (1) of section 11."
14. After its establishment, TRAI made various recommendations either suo
motu or on the request of the licensor, i.e., the Central Government or the
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Telegraph Authority. On a reference made by the Ministry of Communications
and Information Technology on four issues including the issues of appropriate
level of entry fee, basis of selection of new operators and entry of 4th cellular
operator, TRAI made its recommendations, which were communicated to
Secretary, DoT vide D.O. No. 250-14/2000-Fin (DF) (Vol. II) dated 23.6.2000.
Paragraphs 4.1 to 4.3, 4.5 to 4.6 and 4.11 to 4.15 of that letter are extracted
below:
"4. For the purposes of clarity each issue on which TRAI's
recommendation has been sought has been stated separately and
recommendations have been given therefor.
4.1(A) Appropriate level of entry fee, basis for selection of new
operators and entry of fourth operator
The issues under this head can be broken under three main
subheads. These are :
(i) Level of entry fee;
(ii) Basis for selection of new operation;
(iii) Entry of the fourth operator.
We take these issues sequentially.
4.2(1) Level of Entry Fee:-
New operators are to be licensed in the following vacant
circles/slots:
(a)Jammu & Kashmir - Andamans & Nicobar Islands;
(b) Assam and West Bengal;
(c) DOT/MTNL as the third operator.
(d)Fourth operator in circles where migration has been permitted.
4.3 DOT/MTNL wherever they come in as the third operator as
also the fourth operator to be introduced will be required to pay as
licence fee the same percentage share of their revenue as
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recommended by TRAI for the existing CMSPs who are being
allowed to migrate to revenue sharing arrangement in accordance
with NTP 99. The fourth operator will also pay an entry fee which
will be fixed through a process of bidding.
4.5 (ii) Selection of new operators:
The TRAI recommends that all new operators barring DOT/MTNL
be selected through a competitive process. This is recommended to
be a multi stage bidding process preceded by a pre-qualification
round.
4.6 Pre-qualification
Prospective operators would be required to meet pre-determined
criteria in order to qualify to bid for the licence. Pre-qualifications
will mainly be on the following grounds :-
- Financial strength and experience as Telecom Service Provider
- Minimum roll out obligation
- Technical Plan
- Business Plan
- Payment terms and other commercial conditions
It is recommended that prospective bidders who meet the pre-
determined threshold as set out in the pre-qualification criteria be
short-listed for bidding for entry fee in the next stage. No
weightages need be attached to the pre-qualification criteria. The
criteria for pre-qualification could be developed on the following
lines:-
4.11 The Structure of the Bidding Process
Selection from amongst all those who pass the pre-qualification
round will be by a process of bidding. The bids will be carefully
structured so as to guard against the possible misuses of the
process such as preemptive over-bidding or cartelisation. For this
purpose, a bid structure involving "Multi Stage Informed
Ascending Bids" is recommended. It is also recommended that
such bids be invited for the entry fee for selection of operations
and issuing licenses to them. Although, as recommended earlier in
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the case of NLDO, TRAI is primarily of the opinion that because
of its greater relevance, direct impact on operations and being
equitable, revenue sharing is a better basis on which to invite bids
for licenses, in the case of CMSPs this choice is not available
except in two vacant circles/slots. The 34 incumbent operators
have already been given licenses through a process of bidding and
it would not be correct to subject them to yet another process of
bidding, this time concerning revenue sharing. They have already
been asked to pay as license fee, albeit on a provisional basis a
fixed amount of the revenue share viz. 15%. It is, therefore,
recommended that a fixed percentage of revenue share be paid by
all operators as the license fee and this percentage be the same for
all the operators barring the exceptions specifically mentioned in
the paragraph 5.9 below.
4.12 While, the detailed bid structure can be prepared at the time
bids are being called and assistance/advise of experts may be taken
in doing so, based on the experience of such successful bids
elsewhere, the basic outlines of the proposed structure can be
given. Bids can be invited for more than one licence at a time. The
total number of rounds in which the bids will be finalised will be
pre-determined and all bidders should be eligible to bid for all
licenses on offer in each of the rounds. The licensor, may,
however, if it so desires, stipulate beforehand the total number of
licences that can be finally allotted to a single bidder. The TRAI's
recommendation in this regard is that the number of licences that
can go to a single bidder need not be restricted. This will favour
the serious and techno-financially strong bidders and will help
keep the bids at operationally feasible optimal levels.
4.13 After each stage of bidding, bids received will be made
public and all bidders (those lower than the highest bidder as well
as the highest bidder) will be permitted to raise their bids in the
subsequent rounds of bidding. The process will be deemed
complete only on the completion of the pre-determined number of
bid rounds at the end of which the highest bidder for each licence
will have the claim to the license in question. Licences will
become effective on payment of the amount of the winning bid for
the entry fee within a period specified in the tender document.
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4.14 The same process of bidding will also enable selection of
operators where two slots in the same circle are vacant viz. J & K
and Andaman and Nicobar where no operators exist. In these
circles, two bidders may be selected and it is recommended in this
regard that while the second highest bidder in these circles may be
considered for the second slot available, he need not be asked to
match the bid of the highest bidder. It may be provided though that
if the difference between the first and the second highest bids is
substantial, say more than 25 %, fresh bids for the second slot will
be invited. Such an arrangement while being equitable will act as a
good incentive for attracting bids for these circles which have not
proved to be attractive in the past.
(III). Entry of the Fourth Operator:
4.15 DOT/MTNL, the incumbent in basic services, are to enter the
field of cellular mobile services as the third operator in terms of
NTP 99 with the existing availability of spectrum. TRAI, however,
has no information about the availability of spectrum either for the
third or the fourth operator. The financial analysis conducted by
the TRAI for the purpose of studying the revenue share which the
operators can part with as licence fee assumes entry of the third
operator in the sixth year of licence i.e. in the current year and of
another i.e. the fourth operator two years later in accordance with
NTP 99. The analysis reveals that even if the business in each of
these metropolitan areas and circles is required to produce a
reasonable IRR say 16-18 % and a decent return on the capital say
around 20%, it would still enable the operators to share upto about
25% of the Gross (adjusted) revenue as the licence fee. In the
circumstances, it would be reasonable to assume that on purely
economic grounds, in most circles there is even at present, a fair
case for the entry of the fourth operator. In this context, however,
more than the market, the determining factor has to be the
availability of a spectrum and its optimal utilisation. Moreover, it
is also a matter for careful consideration that even when additional
spectrum is released, whether it should be utilised to augment the
number of service providers or for improving the quality and
coverage of the already available services. In the GSM 900 band
the maximum frequency spectrum made available to the operators
in a large number of countries is a pair of 12.5 MHz. Against this
in India the circle operators have been given a pair of less than 5
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MHz and the metro operators of less than 7 MHz. It is learnt that in
a number of metros and circles, no further expansion of services is
possible unless additional spectrum is made available to the
existing operators. Paucity of frequency spectrum is also adversely
affecting the quality of service in a number of service areas. In the
circumstances a fair balance between the two objectives of
increasing competition on the one hand and improving the quality,
coverage and price-efficiency of the service on the other will have
to be struck so that the larger objective of providing quality
services at affordable prices is not jeopardised. A sub-optimal cost
structure and quality of service may finally turn out to be
detrimental to the growth of tele-density notwithstanding a higher
number of service providers. Similar views were expressed also
by the BICP in their report on Cellular Mobile Services (para 20
page-V) of the report). Accordingly, TRAI is of the opinion that a
view can be taken in this matter only after getting a full report
from the DOT on the quantum of spectrum being made available
for the CMSPs, existing as well as the proposed new entrants and
its location i.e. whether it is going to be in the 900 MHz or in 1800
MHz bands."
(underlining is ours)
15. On 5.1.2001, the Government of India issued guidelines for issue of
licence for CMTS. These guidelines envisaged a detailed bidding process for
selection of the new service providers.
16. On 27.10.2003, TRAI made recommendations under Section 11(1)(a)(i),
(ii), (iv) and (vii) of the 1997 Act on Unified Licensing. TRAI referred to
international practises, NTP 1994 and NTP 1999 and growth of telephone
density - national objective and priority. Para 7.2 of those recommendations
read as under:
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"7.2 The Guidelines would be notified by the licensor based on
TRAI recommendations to include nominal entry fee, USO, etc.
The charges for spectrum shall be determined separately. The
operator shall be required to approach the licensor mainly for
spectrum allocation. Since, spectrum is a scarce resource, it needs
to be regulated separately. Spectrum should be distributed using
such a mechanism that it is allocated optimally to the most
efficient user."
17. Paragraphs 7.15 to 7.19 of the 2003 recommendations contained various
alternatives for deciding the benchmark for the entry fee for Unified Access
Licensing Regime. In paragraph 7.30, TRAI laid emphasis on efficient
utilization of spectrum by all service providers and indicated that it would make
further recommendations on efficient utilization of spectrum, spectrum pricing,
availability and spectrum allocation procedure shortly, and the DoT may like to
issue spectrum related guidelines based on its recommendations.
18. In the meanwhile, a Group of Ministers was constituted on 10.9.2003
with the approval of the Prime Minister to consider the following matters:
i) To recommend how to ensure release of adequate spectrum needed for
the growth of the telecom sector;
ii) To recommend measures for ensuring adequate resources for the
realization of the NTP targets of rural telephony;
iii) To resolve issues relating to the enactment of the Convergence Bill;
iv) To chart the course to a Universal Licence;
2
v) To review adequacy of steps and enforcing limited mobility within
the SDCA for WLL(M) services of basic operators, and recommend
the future course of action;
vi) To appraise FDI limits in the telecom sector and give
recommendations thereon;
vii) To identify issues relating to mergers and acquisitions in the telecom
sector and recommend the way forward; and
viii) To consider issues relating to imposition of trade tax on telecom
services by the State Governments.
19. After considering the entire matter, the Group of Ministers made detailed
recommendations on 30.10.2003, the relevant portions of which are extracted
below:
"2.1 1
st
Term of Reference : to recommend how to ensure release of
adequate spectrum needed for the growth of the telecom sector.
2.1.1 The GOM was informed that the availability of adequate
spectrum in appropriate frequency bands, i.e. 1800 MHz in a
timely manner is crucial, for the growth of mobile telephone
services. The growth of mobile services and resultant
spectrum needs are mainly in metro, major and main cities
having population above 1 million. However, the frequency
bands of 1800 MHz are extensively used by Defence
services, thus severely limiting their availability for the
mobile telecom operators.
2.1.2 In the above context, GoM recommended the following:
(1) Adequate spectrum be made available for the unimpeded
growth of telecom services, modalities for which will be
jointly worked out by Wireless Planning & Coordination
(WPC) Wing of Department of Telecom and Defence
services. The Ministry of Defence would coordinate
release additional spectrum in a number of cities for
which requirements have been projected within a month.
2
(2) The Ministry of Finance will provide necessary
budgetary support to Ministry of Defence for
modernization of their existing equipment to facilitate
release of required spectrum. The actual fund
requirements including its phasing will be worked out
between the Ministry of Defence Ministry of Finance and
the Department of Telecom in a time bound manner.
(3) The Department of Telecom and Ministry of Finance
would discuss and finalise spectrum pricing formula
which will include incentive for efficient use of
spectrum as well as disincentive for sub-optimal
usages
(4) The allotment of additional spectrum be transparent
fair and equitable, avoiding monopolistic situation
regarding spectrum allotment usage
(5) The long term 15-20 years, spectrum requirements along
with time frames would also be worked out by
Department of Telecom.
(6) As per the directions of GoM, a Task Force has been
constituted under the chairmanship of Wireless Adviser
to the Govt. of India with representatives from
Department of Telecom, Ministry of Defence and
Ministry of Finance. The terms of reference of the Task
Force and the progress of its work so far are given in
Annexures II & III.(Page 17-18).
2.4 4
th
Term of Reference :- To chart the course to a Universal
Licence:
2.4.1 The GoM took note of the exercise that had already been
indicated by Telecom Regulatory Authority of India (TRAI),
in regard to Unified Licensing Regime in the Telecom
Sector Chairman, TRAI and Chairman HDFC were specially
invited made presentations before the GoM.
2
2.4.2 TRAI submitted its recommendations to the Government on
this matter on 27.10.2003. TRAI has recommended that the
present system of licensing in the Telecom Sector should be
replaced by Unified Licensing/Automatic Authorization
Regime. The Unified Licensing/Automatic Authorization
Regime has been recommended to be achieved in a two-
stage process with the Unified Access Regime for basic and
cellular services in the first phase to be implemented
immediately. This is to be followed by a process of
consultation to define the guidelines and rules for achieving
a fully Unified Licensing/Authorization Regime. TRAI has
recommended that it will enter into a consultation process so
that the replacement of the existing licensing regime by a
Unified Licensing Regime gets initiated within 6 months.
Broad rationale key recommendations and some key policy
issues that have been addressed by TRAI are listed in the
Annexure IV(pages 19-21).
2.4.3 The salient points of TRAI recommendations in regard to
the Unified Access Licensing (basic and cellular mobile),
are as under:
(i) Unification of licenses to be done in two stages
(a) Unified access regime for basic and
cellular services in the first phase
immediately
(b) Unified authorization regime
encompassing all telecom services in the
second phase.
(ii) Fee paid by fourth cellular operator to be
benchmark for migration of basic players to the
new access regime.
(iii) Cellular operators not to pay any entry fee for
migration to the unified access regime while basic
operators to pay the differences between fourth
2
cellular operators licence fee and the BSO fee
already paid by them
(iv) Reliance Infocom required to pay Rs. 1096 crores
for migration in addition to penalty of Rs. 485
crores for offering cellular type services.
(v) Process of migration to the new regime to be
voluntary.
(vi) The existing BSOs after migration to Unified
Access Licensing Regime may offer full mobility
however WLL(M) operators after migration will
be required to offer limited mobility service to
such customers who so desire.
(vii) No additional fee to be paid for any of the circles
where there is no fourth cellular operator.
2.4.4 Enhancing the scope of current Telecom Policy (NTF-99) to
provide category of Unified License and Unified Access
Service License
NTP-99 recognises access service providers as a distinct class. For
the purpose of licensing, this has been sub-divided into cellular
fixed and cable service providers. NTP-99 also states that
convergence of both markets and technologies is a reality that is
forcing realignment of the industry. This convergence now allows
operators to use their facilities to deliver some services reserved
for other operators necessitating a re-look at NTP-94 policy
framework.
For bringing into effect the regime of Unified Access Service for
basic and cellular service licenses and Unified Licensing
comprising all telecom services, it would be necessary to enhance
the scope of NTP-99 to include these as distinct categories of
licenses as pet of NTP-99.
2.4.5 TRAI recommendations on entry fee of WLL(M) based on
TDSAT judgement:
2
TRAI has also submitted its recommendations in regard to
additional entry fee payable by basic service operators for
providing WLL(M) services on which Government had sought its
recommendations based on the judgment of TDSAT dated 8/8/03
in the WLL(M) case. TRAI has given detailed reasoning on this
matter and has recommended additional entry fee for such of the
Basic Service Operators who provide WLL(M) service. The
salient features are in Annexure-V (page 22).
2.4.6 Based on the above the GoM has recommended the
following course of action
(i) The scope of NTP-99 may be enhanced to provide
for licensing of Unified Access Service for basic
and cellular license services and Unified Licensing
comprising all telecom services. Department of
Telecommunications may be authorized to issue
necessary addendum to NTP-99 to this effect.
(ii) The recommendations of TRAI with regard to
implementation of the Unified Access Licensing
Regime for basic and cellular services may be
accepted.
DoT may be authorized to finalise the details of
implementation with the approval of the Minister of
Communication & IT in this regard including the
calculation of the entry fee depending upon the date of
payment based on the principles given by TRAI in its
recommendations.
(iii) The recommendations of TRAI in this regard to
the course of action to be adopted subsequently in
regard to the implementation of the fully Unified
License Authorisation Regime may be approved.
DoT may be authorized to finalise the details of
implementation with the approval of the Minister of
2
Communications & IT on receipt of recommendations of
TRAI in this behalf.
(iv) The recommendations of TRAI in regard to
additional entry fee payable by basic service
operators for providing WLL(M) service on which
Government sought its recommendations based on
the judgment of TDSAT dated 8.8.2003 in the
WLL(M) case may be accepted.
(v) While there appears to be no case for giving
any compensation package to them, because of the
perception that the finances of the cellular
operators are strained and because of the effect
these may have on financial institutions. Finance
Ministry would address the difficulties of the
cellular operators, if any, separately and
appropriately.
(vi) If new services are introduced as a result of
technological advancements which require
additional spectrum over and above the spectrum
already allotted/contracted allocation of such
spectrum will be considered on payment of
additional fee or charges, these will be determined
as per guidelines to be evolved in consultation with
TRAI."
(emphasis supplied)
20. The recommendations of the Group of Ministers were accepted by the
Council of Ministers on 31.10.2003.
21. Thereafter, DoT issued Office Memorandum dated 11.11.2003 and made
some additions to NTP 1999. The same day, DoT issued new guidelines for
UAS Licences. Two salient features of these guidelines were that the existing
3
operators would have an option to continue under the existing licensing regime
or to migrate to new UAS Licence and the licence fee, service area, rollout
obligations and performance bank guarantee under UAS Licence was to be the
same as the 4th CMTS.
22. Vide letter dated 14.11.2003, the Chairman, TRAI, on his own, made
recommendation regarding entry fee to be charged from the new UAS
Licensees. On 24.11.2003, the Minister of C&IT accepted the recommendation
that entry fee for new UAS Licensees will be the entry fee of 4th cellular
operator and where there is no 4th cellular operator, it will be the entry fee fixed
by the Government for the basic operator. A decision was also taken by him in
F. No.20-231/2003-BS-III (LOIs for UASL) at 4/N that,
"As regards the point raised about the grant of new licences on
first-come-first-served basis, the announced guidelines have made
it open for new licences to be issued on continuous basis at any
time. However, the spectrum is to be allotted subject to
availability. This in effect would imply that an applicant who
comes first will be granted the spectrum first so it will result in
grant of licence on first-come-first-served basis."
Although, in terms of the decision taken by the Minister of C&IT, the
applications for grant of UAS Licence could be made on continuous basis and
were required to be processed within 30 days, some applications were made in
2004 and 2006 and the same were kept pending.
3
23. On 13.5.2005, TRAI made comprehensive recommendations on various
issues relating to spectrum policy, i.e., efficient utilisation of spectrum,
spectrum allocation, spectrum pricing, spectrum charging and allocation for
other terrestrial wireless links. These recommendations were not placed before
Telecom Commission. Though, the then Secretary, DoT submitted the file to
the then Minister of C&IT on 16.8.2005 for information with a note that he will
go through the recommendations and put up the file to the Minister for policy
decision, the file was returned on 12.9.2006, i.e., after one year and no further
action appears to have been taken.
24. In the meanwhile, on 23.2.2006, the Prime Minister approved constitution
of a Group of Ministers, consisting of the Ministers of Defence, Home Affairs,
Finance, Parliamentary Affairs, Information and Broadcasting and C&IT, to
look into issues relating to vacation of spectrum. Deputy Chairman, Planning
Commission was special invitee. The Terms of Reference of the Group of
Ministers, among other things, included suggesting a Spectrum Pricing Policy
and examining the possibility of creation of a spectrum relocation fund. After
five days, the Minister C&IT wrote letter dated 28.2.2006 to the Prime Minister
that the Terms of Reference of the GoM were much wider than what was
3
discussed in his meeting with the Prime Minister. He appears to have protested
that the Terms of Reference would impinge upon the work of his Ministry and
requested that the Terms of Reference be modified in accordance with the draft
enclosed with the letter. Interestingly, the Minister's draft did not include the
important issue relating to Spectrum Pricing. Thereafter, vide letter 7.12.2006,
the Cabinet Secretary conveyed the Prime Minister's approval to the
modification of the Terms of Reference. The revised Terms of Reference did
not include the issue relating to Spectrum Pricing.
25. On 14.12.2005, the DoT issued revised guidelines for UAS Licence.
Paragraph 11 of the new guidelines reads as under:
"The licences shall be issued without any restriction on the number
of entrants for provision of unified access services in a Service
Area."
In terms of paragraph 14 of the guidelines, the licensee was required to pay
annual licence fee at 10/8/6% of Adjusted Gross Revenue (AGR) for category
A/B/C service areas, respectively excluding spectrum charges. This was in
addition to the non-refundable entry fee. In terms of paragraph 19 the licensee
was required to pay spectrum charges in addition to the licence fee on revenue
share basis. However, while calculating AGR for limited purpose of levying
spectrum charges, revenue from wireless subscribers was not to be taken into
account.
3
26. After one year and about six months, the DoT vide its letter dated
13.4.2007, requested TRAI to furnish its recommendations under Section 11(1)
(a) of the 1997 Act on the issues of limiting the number of access providers in
each service area and review of the terms and conditions in the access provider
licence mentioned in the letter. Paragraph 2 of that letter is extracted below:
"2. Fast changes are happening in the Telecommunication sector. In
order to ensure that the policies keep pace with the
changes/developments in the Telecommunication sector, the
government is contemplating to review the following terms and
conditions in the Access provider (CMTS/UAS/Basic) license
i. Substantial equity holding by a company / legal person in more
than one licensee company in the same service area (clause 1.4
of UASL agreement).
ii. Transfer of licences (clause 6 of the UASL)
iii. Guidelines dated 21.02.2004 on Mergers and Acquisitions.
TRAI in its recommendations dated 30.1.2004 had opined that
the guidelines may be reviewed after one year.
iv. Permit service providers to, offer access services using
combination of technologies (CDMA, GSM and/or any other)
under the same license.
v. Roll-out obligations (Clause 34 of UASL).
vi. Requirement to publish printed telephone directory."
27. In furtherance of the aforesaid communication, TRAI made
recommendations dated 28.8.2007. The main emphasis of these
recommendations was the principles of fair competition, no restriction on the
number of access service providers in any service area, need for spectrum
management, measures to increase spectrum efficiency, allocation of spectrum
3
and compliance of roll out obligations by the service providers. It was also
recommended that in future all spectrum excluding the spectrum in 800, 900
and 1800 MHz bands in 2G services should be auctioned. In paragraphs 2.33,
2.39, 2.41, 2.54 and 2.63, TRAI repeatedly mentioned about scarce availability
of spectrum. Paragraphs 2.37, 2.40, 2.69 and 2.73 to 2.79 of the TRAI's
recommendations dated 28.8.2007 are extracted below:
"2.37 Accordingly, the Authority recommends that no cap be
placed on the number of access service providers in any
service area.
2.40 The present spectrum allocation criteria, pricing
methodology and the management system suffer from a
number of deficiencies and therefore the Authority
recommends that this whole issue is not to be dealt with in
piecemeal but should be taken up as a long term policy
issue. There is an urgent need to address the issues linked
with spectrum efficiency and its management.
2.69 The Entry fee for acquiring a UASL license enables the
licensee to become eligible for spectrum allocation in certain
specified bands without any additional fee for acquisition of
spectrum which means that allocation of spectrum follows
the grant of license subject however to availability of
spectrum. There is only one direct cost to the operator for
spectrum i.e. spectrum charge in the form of royalty.
2.73 The allocation of spectrum is after the payment of entry
fee and grant of license. The entry fee as it exists
today is, in fact, a result of the price discovered
through a markets based mechanism applicable for the
grant of license to the 4th cellular operator. In today's
dynamism and unprecedented growth of telecom
sector, the entry fee determined then is also not the
realistic price for obtaining a license. Perhaps, it needs
3
to be reassessed through a market mechanism. On the
other hand spectrum usage charge is in the form of a
royalty which is linked to the revenue earned by the
operators and to that extent it captures the economic
value of the spectrum that is used. Some stakeholders
have viewed the charges/fee as a hybrid model of
extracting economic rent for the acquisition and also
meet the criterion of efficiency in the utilization of this
scarce resource. The Authority in the context of 800,
900 and 1800 MHz is conscious of the legacy i.e.
prevailing practice and the overriding consideration of
level playing field. Though the dual charge in present
form does not reflect the present value of spectrum it
needed to be continued for treating already specified
bands for 2G services i.e. 800, 900 and 1800 MHz. It is
in this background that the Authority is not
recommending the standard options pricing of
spectrum, however, it has elsewhere in the
recommendation made a strong case for adopting
auction procedure in the allocation of all other
spectrum bands except 800, 900 and 1800 MHz.
2.74 Some of the existing service providers have already
been allocated spectrum beyond 6.2 MHz in GSM and
5 MHz in CDMA as specified in the license agreements
without charging any extra one time spectrum charges.
The maximum spectrum allocated to a service provider
is 10 MHz so far. However, the spectrum usage charge
is being increased with increased allocation of
spectrum. The details are available at Table 8.
2.75 The Authority has noted that the allocation beyond 6 2
MHz for GSM and 5 MHz for CDMA at enhanced
spectrum usage charge has already been
implemented. Different licensees are at different levels
of operations in terms of the quantum of spectrum.
Imposition of additional acquisition fee for the quantum
beyond these thresholds may not be legally feasible in
view of the fact that higher levels of usage charges
have been agreed to and are being collected by the
3
Government. Further, the Authority is conscious of the
fact that further penetration of wireless services is to
happen in semi-urban and rural areas where
affordability of services to the common man is the key
to further expansion.
2.76 However, the Authority is of the view that the approach
needs to be different for allocating and pricing spectrum
beyond 10 MHz in these bands i.e. 800, 900 and 1800
MHz. In this matter, the Authority is guided by the need to
ensure sustainable competition in the market keeping in
view the fact that there are new entrants whose
subscriber acquisition costs will be far higher than the
incumbent wireless operators. Further, the technological
progress enables the operators to adopt a number of
technological solutions towards improving the efficiency of
the radio spectrum assigned to them. A cost- benefit
analysis of allocating additional spectrum beyond 10 MHz
to existing wireless operators and the cost of deploying
additional CAPEX towards technical improvements in the
networks would show that there is either a need to place
a cap on the maximum allocable spectrum at 10 MHz or
to impose framework of pricing through additional
acquisition fee beyond 10 MHz. The Authority feels it
appropriate to go in for additional acquisition fee of
spectrum instead of placing a cap on the amount of
spectrum that can be allocated to any wireless operator.
In any case, the Authority is recommending a far stricter
norm of subscriber base for allocation of additional
spectrum beyond the initial allotment of spectrum. The
additional acquisition fee beyond 10 MHz could be
decided either administratively or through an auction
method from amongst the eligible wireless service
providers. In this matter, the Authority has taken note of
submissions of a number of stakeholders who have cited
evidences of the fulfillment of the quality of service
benchmarks of the existing wireless operators at 10 MHz
and even below in almost all the licensed service areas.
Such an approach would also be consistent with the
Recommendation of the Authority in keeping the door
3
open for new entrant without putting a limit on the number
of access service providers.
2.77 The Authority in its recommendation on "Allocation and
pricing of spectrum for 3G and broadband wireless
access services" had recommended certain reserve price
for 5 MHz of spectrum in different service areas. The
recommended price are as below:
Service Areas Price (Rs.in million) for 2X5
MHz
Mumbai, Delhi and Category A 800
Chennai, Kolkatta and Category B 400
Category C 150
The Authority recommends that any licensee who seeks to get
additional spectrum beyond 10 MHz in the existing 2G bands i.e.
800,900 and 1800 MHz after reaching the specified subscriber
numbers shall have to pay a onetime spectrum charge at the above
mentioned rate on prorata basis for allotment of each MHz or part
thereof of spectrum beyond 10 MHz. For one MHz allotment in
Mumbai, Delhi and Category A service areas, the service provider
will have to pay Rs. 160 million as one time spectrum acquisition
charge.
2.78 As far as a new entrant is concerned, the question arises
whether there is any need for change in the pricing
methodology for allocation of spectrum in the 800, 900 and
1800 MHz bands. Keeping in view the objective of growth,
affordability, penetration of wireless services in semi-urban
and rural areas, the Authority is not in favour of changing the
spectrum fee regime for a new entrant. Opportunity for equal
competition has always been one of the prime principles of
the Authority in suggesting a regulatory framework in
telecom services. Any differential treatment to a new entrant
vis-a-vis incumbents in the wireless sector will go against
the principle of level playing field. This is specific and
restricted to 2G bands only i.e. 800, 900 and 1800 MHz. This
approach assumes more significance particularly in the
3
context where subscriber acquisition cost for a new entrant is
likely to be much higher than for the incumbent wireless
operators.
2.79 In the case of spectrum in bands other than 800, 900 and
1800 MHz i.e. bands that are yet to be allocated, the
Authority examined various possible approaches for pricing
and has come to the conclusion that it would be appropriate
in future for a market based price discovery systems. In
response to the consultation paper, a number of stakeholders
have also strongly recommended that the allocation of
spectrum should be immediately de-linked from the license
and the future allocation should be based on auction.
The Authority in its recommendation on "Allocation and
pricing of spectrum for 3G and broadband wireless access
services" has also favored auction methodology for
allocation of spectrum for 3G and BWA services. It is
therefore recommended that in future all spectrum excluding
the spectrum in 800, 900 and 1800 bands should be auctioned
s
o as to ensure efficient utilization of this scarce resource. I
n
the 2G bands (800 MHz/900 MHz/1800 MHz), the allocation
through auction may not be possible as the service providers
were allocated spectrum at different times of their license and
the amount of spectrum with them varies from 2X4.4 MHz to
2X10 MHz for GSM technology and 2X2.5 MHz to 2X5
MHz in CDMA technology. Therefore, to decide the cut off
after which the spectrum is auctioned will be difficult and
might raise the issue of level playing field."
(underlining is ours)
28. The aforesaid recommendations of TRAI were first considered by an
Internal Committee of the DoT constituted vide letter dated 21.9.2007 under the
Chairmanship of Member, Telecommunication. The report of the Committee
was placed before the Telecom Commission on 10.10.2007. However, the four
3
non-permanent members, i.e., Finance Secretary; Secretary, Department of
Industrial Policy and Promotion; Secretary, Department of Information
Technology and Secretary, Planning Commission were not even informed about
the meeting. In this meeting of the Telecom Commission, which was attended
by the officials of the DoT only, the report of the Internal Committee was
approved. On 17.10.2007, the Minister of C&IT accepted the recommendations
of the Telecom Commission and thereby approved the recommendations made
by TRAI. However, neither the Internal Committee of the DoT and the
Telecom Commission nor the Minister of C&IT took any action in terms of
paragraph 2.40 of the recommendations wherein it was emphasised that the
existing spectrum allocation criteria, pricing methodology and the management
system suffer from a number of deficiencies and the whole issue should be
addressed keeping in view issues linked with spectrum efficiency and its
management. The DoT also did not get in touch with the Ministry of Finance to
discuss and finalise the spectrum pricing formula which had to include
incentive for efficient use of spectrum as well as disincentive for sub-optimal
usage in terms of the Cabinet decision of 2003.
29. In the meanwhile, on 24.9.2007, Shri A.K. Srivastava, DDG (AS), DoT
prepared a note mentioning therein that as on that date, 167 applications had
been received from 12 companies for 22 service areas and opined that it may be
4
difficult to handle such a large number of applications at any point of time. He
suggested that 10.10.2007 may be announced as the cut-off date for receipt of
new UAS Licence applications. Shri A. Raja who was, at the relevant time,
Minister of C&IT did not agree with the suggestion and ordered that 1.10.2007
be fixed as the cut-off date for receipt of applications for new UAS Licence.
Accordingly, press note dated 24.9.2007 was issued by the DoT stating that no
new application for UAS Licence will be accepted after 1.10.2007.
30. It is borne out from the record that Vodafone Essar Spacetel Ltd.
(respondent No.12) had made an application for UAS Licence in 2004 and 3
others, namely, Idea Cellular Ltd. (respondent No.8), Tata Teleservices Ltd.
(respondent No.9) and M/s. Aircel Ltd. (respondent No.11) had made similar
applications in 2006. However, the same were not disposed of by the DoT and
they were included in the figure of 167. Between 24.9.2007 and 1.10.2007,
over 300 applications were received for grant of UAS Licences. Member
(Technology), Telecom Commission and Ex-officio Secretary to Government
of India sent a letter dated 26.10.2007 to Secretary, Department of Legal
Affairs, Ministry of Law and Justice seeking the opinion of the Attorney
General of India/Solicitor General of India on the issue of the mechanism to
deal with what he termed as an unprecedented situation created due to receipt of
large number of applications for grant of UAS Licence. The statement of case
4
accompanying the letter of Member (Technology) contained as many as 14
paragraphs. Paragraph 11 outlined the following four alternatives:
(I) The applications may be processed on first-come-first-served basis in
chronological order of receipt of applications in each service area as per
existing procedure. LoI may be issued simultaneously to applicants (the
numbers will vary based on availability of spectrum to be ascertained from
WPC Wing) who fulfil the eligibility conditions of the existing UASL
Guidelines and are senior most in the queue. The time limit for compliance
should be 7 days as per the existing provision of LoI and 15 days for
submission of PBG, FBG, entry fee, etc. as per the existing procedure.
However, those who fulfil the conditions of LoI within stipulated time, their
seniority of license/spectrum will be on the basis of their application date. The
compliance of eligibility conditions as on the date of issue of LoI may be
accepted. No relaxation of this time limit will be given and LoI shall stand
terminated after the stipulated time period (however, the applicant may have the
right to apply for new UAS Licence again as and when the window for
submission of new UAS Licence is opened again). Subsequent applications may
be considered for issue of LoI if the spectrum is available.
4
(II) LoIs to all those who applied by 25.9.2007 (date on which the cut-off date
for receipt of applications were made public through press) may be issued in
each service area as it is expected that only serious players will deposit the
entry fee and seniority for license/spectrum be based on (i) the date of
application or (ii) the date/time of fulfilment of all LoI conditions.
(III) DoT may issue LoIs to all eligible applications simultaneously received up
to cut-off date. Since LoIs will clearly stipulate that spectrum allocation is
subject to availability and is not guaranteed, the LoI holders are supposed to
pay the entry fee if their business case permits them top wait for spectrum
allocation subject to availability an initial roll out using wire line technology.
(IV) Any other better approach which may be legally tenable and sustainable
for issue of new licences.
Paragraph 13 of the statement of case is extracted below:
"Issue of LoIs to M/s. TATA and others for usage of Dual
Technology spectrum based on their applications received after
18.10.2007. Whether
(i) To treat their request prior to existing applicants
or
(ii) To treat their request after processing all 575 applications."
4
31. The Law Secretary placed the papers before the Minister of Law and
Justice on 1.11.2007, who recorded the following note:
"I agree. In view of the importance of the case and various options
indicated in the statement of the case, it is necessary that whole
issue is first considered by an empowered Group of Ministers and
in that process legal opinion of Attorney General can be obtained."
32. When the note of the Law Minister was placed before the Minister of
C&IT, he recorded the following note on 2.11.2007 - "Discuss please". On the
same day, i.e., 2.11.2007 the Minister of C&IT did two things. He approved the
note prepared by Director (AS-1) containing the following issues:
(i) Issuing of LoIs to new applicants as per the existing policy,
(ii) Number of LoIs to be issued in each circle,
(iii) Approval of draft LoI,
(iv) Considering application of TATAs for dual technology after the
decision of TDSAT on dual technology, and
(v) Authorising Shri R.K. Gupta, ADG (AS-1) for signing the LoIs on
behalf of President of India.
33. While approving the note, the Minister of C&IT on his own recorded the
following - "LoI may be issued to the applicants received upto 25th Sept. 2007".
Simultaneously, he sent D.O. No.20/100/2007-AS.I dated 2.11.2007 to the
Prime Minister and criticised the suggestion made by the Law Minister by
describing it as totally out of context. He also gave an indication of what was to
4
come in the future by mentioning that the DoT has decided to continue with the
existing policy of first-come-first-served for processing of applications received
up to 25.9.2007 and the procedure for processing the remaining applications
will be decided at a later date, if any spectrum is left available after processing
the applications received up to 25.9.2007. Paragraphs 3 and 4 of the letter of
the Minister of C&IT are extracted below:
"3. The Department wanted to examine the possibility of any
other procedure in addition to the current procedure of allotment of
Licences to process the huge number of applications. A few
alternative procedures as debated in the Department and also
opined by few legal experts were suggested by the Department of
Telecom to Ministry of Law & Justice to examine its legal
tenability to avoid future legal complications, if any. Ministry of
Law and Justice, instead of examining the legal tenability of these
alternative procedures, suggested referring the matter to
empowered Group of Ministers. Since, generally new major policy
decisions of a; Department or inter-departmental issues are referred
to GOM, and, needless to say that the present issue relates to
procedures, the suggestion of Law Ministry is totally out of
context.
4. Now, the Department has decided to continue with the
existing policy (first-come-first-served) for processing of
applications received up to 25th September 2007, i. e. the date
when the news-item on announcement of cut-off date appeared in
the newspapers. The procedure for processing the remaining
applications will be decided at a later date, if any spectrum is left
available after processing the applications received up to 25th
September 2007.
4. As the Department is not deviating from the existing
procedure, I hope this will satisfy the Industry."
4
34. In the meanwhile, the Prime Minister who had received representations
from telecom sector companies and had read reports appearing in a section of
media sent letter dated 2.11.2007 to the Minister of C&IT and suggested that a
fair and transparent method should be adopted for grant of fresh licences. That
letter reads as under:
"Prime Minister
New Delhi
2 November, 2007
Dear Shri Raja,
A number of issues relating to allocation of spectrum have
been raised by telecom sector companies as well as in sections of
the media. Broadly, the issues relate to enhancement of subscriber
linked spectrum allocation criteria, permission to CDMA service
providers to also provide services on the GSM standard and be
eligible for spectrum in the GSM service band, and the processing
of a large number of applications received for fresh licenses
against the backdrop of inadequate spectrum to cater to overall
demand. Besides these, there are some other issues recommended
by TRAI that require early decision. The key issues are
summarized in the annexed note.
I would request you to give urgent consideration to the
issues being raised with a view to ensuring fairness and
transparency and let me know of the position before you take
any further action in this regard.
With regards,
Yours sincerely,
Sd/-
(Manmohan Singh)
Shri A. Raja
Minister of Communications and IT
4
New Delhi.
Annexure
1. Enhancement of subscriber linked spectrum allocation
criteria
In August 2007, the TRAI has recommended interim enhancement
of subscriber linked spectrum allocation criteria. Service providers
have objected to these recommendations, alleging errors in
estimation / assumptions as well as due procedure not having been
followed by the TRAI while arriving at the recommendations.
2. Permission to CDMA service providers to also provide
services on the GSM standard and be eligible for spectrum
in the GSM service band
Based on media reports, it is understood that the DoT has allowed
`cross technology' provision of services by CDMA service
providers and three such companies have already paid the license
fee. With the deposit of the fee, they would be eligible for GSM
spectrum, for which old incumbent operators have been waiting
since last several years. The Cellular Operators Association of
India (COAI), being the association of GSM service providers, has
represented against this. It is understood that the COAI has also
approached the TDSAT against this.
3. Processing of a large number of applications received for
fresh licenses against the backdrop of inadequate spectrum
to cater to overall demand
The DoT has received a large number of applications for new
licenses in various telecom circles. Since spectrum is very limited,
even in the next several years all these licensees may never be able
to get spectrum. The Telecom Policy that had been approved by
the Union Cabinet in 1999 specifically stated that new licenses
would be given subject to availability of spectrum.
4. In order that spectrum use efficiency gets directly linked
with correct pricing of spectrum, consider (i)
4
introduction of a transparent methodology of auction,
wherever legally and technically feasible, and (ii)
revision of entry fee, which is currently benchmarked on
old spectrum auction figures
5. Early decision on issues like rural telephony, infrastructure
sharing, 3G, Broadband, Number Portability and Broadband
Wireless Access, on which the TRAI has already given
recommendations."
(emphasis supplied)
35. The Minister of C&IT did not bother to consider the suggestion made by
the Prime Minister, which was consistent with the Constitutional principle of
equality, that keeping in view the inadequate availability of spectrum, fairness
and transparency should be maintained in the allocation of spectrum, and within
few hours of the receipt of the letter from the Prime Minister, he sent a reply
wherein he brushed aside the suggestion made by the Prime Minister by saying
that it will be unfair, discriminatory, arbitrary and capricious to auction the
spectrum to new applicants as it will not give them a level playing field. The
relevant portions of paragraph 3 of the Minister's letter are extracted below:
"3. Processing of a large number of applications received for
fresh licenses against the backdrop of inadequate spectrum
to cater to overall demand
The issue of auction of spectrum was considered by the TRAI and
the Telecom Commission and was not recommended as the
existing licence holders who are already having spectrum upto 10
MHz per Circle have got it without any spectrum charge. It will be
unfair, discriminatory, arbitrary and capricious to auction the
4
spectrum to new applicants as it will not give them level playing
field.
I would like to bring it to your notice that DoT has earmarked
totally 800 MHz in 900 MHz and 1800 MHz bands for 2G mobile
services. Out of this, so for a maximum of about 35 to 40 MHz per
Circle has been allotted to different operators and being used by
them. The remaining 60 to 65 MHz, including spectrum likely to
be vacated by Defence Services, is still available for 2G services.
Therefore, there is enough scope for allotment of spectrum to few
new operators even after meeting the requirements of existing
operators and licensees. An increase in number of operators will
certainly bring real competition which will lead to better services
and increased teledensity at lower tariff. Waiting for spectrum for
long after getting licence is not unknown to the Industry and even
at present Aircel, Vodafone, Idea and Dishnet are waiting for
initial spectrum in some Circles since December 2006."
36. On 20.11.2007, the Secretary, DoT had made a presentation on the
spectrum policy to the Cabinet Secretary. The Finance Secretary, who appears
to have witnessed the presentation, dispatched letter dated 22.11.2007 to the
Secretary, DoT and expressed his doubt as to how the rate of Rs.1600 crores
determined in 2001, could be applied without any indexation for a licence to be
given in 2007. He also emphasized that in view of the financial implications,
the Ministry of Finance should have been consulted before the matter was
finalised at the level of the DoT. Secretary, DoT promptly replied to the
Finance Secretary by sending letter dated 29.11.2007 in which he mentioned
that as per the Cabinet decision dated 31.10.2003, the DoT had been authorised
4
to finalise the details of implementation of the recommendations of TRAI and
in its recommendations dated 28.8.2007, TRAI had not suggested any change in
the entry fee/licence fee.
37. In the context of letter dated 22.11.2007 sent by the Finance Secretary,
Member (Finance), DoT submitted note dated 30.11.2007 suggesting that the
issue of revision of rates should be examined in depth before any final decision
is taken in the matter. When the note was placed before the Minister, he
observed that the matter of entry fee has been deliberated in the department
several times in light of various guidelines and the TRAI recommendations and
accordingly decision was taken not to revise the entry fee and that the
Secretary, DoT had also replied to the Finance Secretary's letter on the above
lines.
38. Although, the record produced before this Court does not show as to
when the policy of first-come-first-served was distorted by the Minister of
C&IT, in an apparent bid to show that he had secured the Prime Minister's
approval to this act of his, the Minister C&IT sent letter dated 26.12.2007 to the
Prime Minister, paragraphs 1 and 2 of which are extracted below:
"1. Issue of Letter of Intent (LOI): DOT follows a policy of
First-cum-First Served for granting LOI to the applicants for UAS
licence, which means, an application received first
will be processed first and if found eligible will be granted LOI.
5
2. Issue of Licence: The First-cum-First Served policy is also
applicable for grant of licence on compliance of LOI conditions.
Therefore, any applicant who complies with the conditions of LOI
first will be granted UAS licence first. This issue never arose in the
past as at one point of time only one application was processed and
LOI was granted and enough time was given to him for
compliance of conditions of LOI. However, since the Government
has adopted a policy of "No Cap" on number of UAS Licence, a
large number of LOI's are proposed to be issued simultaneously.
In these circumstances, an applicant who fulfils the conditions of
LOI first will be granted licence first, although several applicants
will be issued LOI simultaneously. The same has been concurred
by the Solicitor General of India during the discussions."
(underlining is ours)
39. After 12 days, DDG (AS), DoT prepared a note incorporating therein the
changed first-come-first-served policy to which reference had been made by the
Minister of C&IT in letter dated 26.12.2007 sent to the Prime Minister. On the
same day the Minister of C&IT approved the change.
40. The meeting of the full Telecom Commission, which was scheduled to be
held on 9.1.2008 to consider two important issues i.e., performance of telecom
sector and pricing of spectrum was postponed to 15.1.2008.
41. On 10.1.2008 i.e., after three days of postponement of the meeting of the
Telecom Commission, a press release was issued by the DoT under the
signature of Shri A.K. Srivastava, DDG (AS), DoT. The same reads as under:
5
"In the light of Unified Access Services Licence (UASL)
guidelines issued on 14th December 2005 by the department
regarding number of Licenses in a Service Area, a reference was
made to TRAI on 13-4-2007. The TRAI on 28-08-2007
recommended that No cap be placed on the number of access
service providers in any service area. The government accepted
this recommendation of TRAI. Hon'ble Prime Minister also
emphasized on increased competition while inaugurating India
Telecom 2007. Accordingly, DOT has decided to issue LOI to all
the eligible applicants on the date of application who applied up-to
25-09-2007.
UAS license authorises licencee to rollout telecom access services
using any digital technology which includes wire-line and/or
wireless (GSM and/or CDMA) services. They can also provide
Internet Telephony, Internet Services and Broadband services.
UAS licence in broader terms is an umbrella licence and does not
automatically authorize UAS licensees usage of spectrum to rollout
Mobile (GSM and/or CDMA) services. For this, UAS licencee has
to obtain another licence, i.e. Wireless Operating Licence which is
granted on first-come-first-served basis subject to availability of
spectrum in particular service area.
DOT has been implementing a policy of First-cum-First Served for
grant of UAS licences under which initially an application which is
received first will be processed first and thereafter if found eligible
will be granted LOI and then who so ever complied with the
conditions of LOI first will be granted UAS licence.
--------------
Department of Telecom
(AS Cell)
10-01-2008"
(underlining is ours)
42. On the same day, another press release was issued asking all the
applicants to assemble at the departmental headquarters within 45 minutes to
collect the response(s) of the DoT. They were also asked to submit compliance
5
of the terms of LoIs within the prescribed period. The second press release is
also reproduced below:
"Department of Telecommunications
Press Release
D
ate : 10 th
J
anuary 2008
Sub : UASL applicants to depute their authorised representative to
collect responses of DOT on 10.1.2008.
The applicant companies who have submitted applications to
DOT for grant of UAS licences in various service areas on or
before 25.9.2007 are requested to depute their Authorised
signatory/Company Secretary/ authorised representative with
authority letter to collect response(s) of DOT. They are requested
to bring the company's rubber stamp for receiving these
documents to collect letters from DOT in response to their UASL
applications. Only one representative of the Company/group
Company will be allowed. Similarly, the companies who have
applied for usage of dual technology spectrum are also requested to
collect the DOT's response.
All above are requested to assemble at 3:30 pm on
10.1.2008 at Committee Room, 2nd Floor, Sanchar Bhawan, New
Delhi. The companies which fail to report before 4:30 P.M. on
10.1.2008, the responses of DOT will be dispatched by post.
All eligible LOI holders for UASL may submit
compliance to DOT to the terms of LOIs within the prescribed
period during the office hours i.e. 9:00 A.M. to 5:30 P.M. on
working days.
File No.20-100/2007-AS-I
Dated 10.1.2008
(A.K. Srivastava)
DDG(AS)
5
Dept. of Telecom
DDG(C&A): The above Press Release may kindly be uploaded on
DOT website immediately."
43. All the applicants including those who were not even eligible for UAS
Licence collected their LoIs on 10.1.2008. The acceptance of 120 applications
and compliance with the terms and conditions of the LoIs for 78 applications
was also received on the same day.
44. Soon after obtaining the LoIs, 3 of the successful applicants offloaded
their stakes for thousands of crores in the name of infusing equity, their details
are as under:
(i) Swan Telecom Capital Pvt. Ltd. (now known as Etisalat DB Telecom
Pvt. Ltd.) which was incorporated on 13.7.2006 and got UAS Licence
by paying licence fee of Rs. 1537 crores transferred its 45%
(approximate) equity in favour of Etisalat Mauritius Limited, a wholly
owned subsidiary of Emirates Telecommunications Corporation of
UAE for over Rs.3,544 crores.
(ii) Unitech which had obtained licence for Rs.1651 crores transferred its
stake 60% equity in favour of Telenor Asia Pte. Ltd., a part of Telenor
Group (Norway) in the name of issue of fresh equity shares for
Rs.6120 crores between March, 2009 and February, 2010.
5
(iii) Tata Tele Services transferred 27.31% of equity worth Rs. 12,924
crores in favour of NTT DOCOMO.
(iv) Tata Tele Services (Maharashtra) transferred 20.25% of equity worth
Rs. 949 crores in favour of NTT DOCOMO.
45. S. Tel Ltd., who had applied for grant of licence pursuant to press note
dated 24.9.2007, but was ousted from the zone of consideration because of the
cut-off date fixed by the Minister of C&IT, filed Writ Petition No.636 of 2008
in the Delhi High Court with the prayer that the first press release dated
10.1.2008 may be quashed. After hearing the parties, the learned Single Judge
vide his order dated 1.7.2009 declared that the cut-off date, i.e., 25.9.2007 was
totally arbitrary and directed the respondents in the writ petition to consider the
offer made by the writ petitioner to pay Rs.17.752 crores towards additional
revenue share over and above the applicable spectrum revenue share. The
observations made by the learned Single Judge on the justification of fixing
25.9.2007 as the cut-off date read as under:
"Thus on the one hand the respondent has accepted the
recommendation of the TRAI in the impugned press note, but
acted contrary thereto by amending the cut-off date and thus placed
a cap on the number of service providers. The stand taken by
respondent and the justification sought to be given for fixing a cut-
off date retrospectively is on account of large volume of
applications, is without any force in view of the fact that neither
any justification was rendered during the course of argument, nor
any justification has been rendered in the counter affidavit as to
what is the effect of receipt of large number of applications in view
5
of the fact that a recommendation of the TRAI suggests no cap on
the number of access service providers in any service area. This
recommendation was duly accepted and published in the
newspaper. Further as per the counter affidavit 232 UASL
applications were received till 25.9.2007 from 22 companies.
Assuming there was increase in the volume of applications, the
respondent has failed to answer the crucial question as to what was
the rationale and basis for fixing 25.9.2007 as the cut-off date.
Even otherwise, admittedly 232 applications were made by
25.9.2007 and between 25.9.2007 and 1.10.2007 only 76 were
applications were received. It was only on 1.10.2007 that 267
applications were made. Thus on 28.09.2007 it cannot be said that
large number of applications were received. Thus taking into
consideration the opinion of the expert body, which as per the
press note of the respondent itself was accepted by the respondent,
certainly the respondent cannot be allowed to change the rules of
the game after the game had begun, to put it in the words of the
Apex Court especially when the respondent has failed to give any
plausible justification or the rationale for fixing the cut-off date by
merely a week. Taking into consideration that on 13.4.2007 the
Government of India had recommended TRAI to furnish its
recommendation in terms of 11 (e) of the TRAI Act, 1997 on the
issue as to whether a limit should be put on the number of access
service providers in each service area. The TRAI having given its
recommendations on 28.8.2007 which were duly accepted by the
Government, the respondent cannot be allowed to arbitrarily
change the cut-off date and that too without any justifiable
reasons."
46. The letters patent appeal filed against the order of the learned Single
Judge was dismissed by the Division Bench of the High Court vide judgment
dated 24.11.2009, paragraphs 13 and 14 whereof are reproduced below:
"13. We are unable to agree with the submission of the learned
Attorney General that the parameters that would apply to revising a
cut-off date that has been earlier fixed prior to the receipt of the
applications would be no different from fixing a cut-off date in the
first place. While the decision in D.S. Nakara which has
5
subsequently been distinguished in N. Subbarayudu is about fixing
a cut-off date which might be an exercise in the discretion of the
Appellant, those decisions are not helpful in deciding the revision
of a cut-off date after applications have been received in terms of
the previous cut-off date, is amenable to judicial review on
administrative and constitutional law parameters. We are of the
view that the two situations cannot be equated. The Government
would have to justify its decision to revise a cut-off date already
fixed, after applications have been received from persons acting on
the basis of the earlier cut-off date. It would be for the court to be
satisfied when a challenge is made, that the decision to revise a
cut-off date after receiving applications on the basis of the cut-off
date earlier fixed was based on some rational basis and was not
intended to benefit a few applicants while discriminating against
the rest. In the present case, for the reasons pointed out by the
learned Single Judge, with which we concur, the Appellant has
been unable to show that its decision to revise the cut-off date after
receiving the application of the Respondent was based on some
rational criteria. It is vulnerable to being labelled arbitrary and
irrational.
14. We are not able to appreciate, in the instant case, the
submission of the learned Attorney General that the mere
advancing of the cut-off date would not tantamount to changing the
rules after the game has begun. In a sense it does. It makes
ineligible for consideration the applicants who had applied, after
25th September 2007 but on or before 1st October 2007. Further this
ineligibility is announced after the applications have been made. In
other words, while at the time of making the application there was
no such ineligibility, it is introduced later and that too for a select
category of applicants. This cannot but be a change in the rule after
the game has begun. We do not think that the decisions relied upon
by the learned Attorney General contemplate such a situation. On
the other hand the decisions in Monarch Infrastructure (P) Ltd. and
K. Manjushree fully support the Respondent's case for invalidation
of the Appellant's impugned decision revise the cut-off date from
1st October 2007 to 25th September 2007, long after receiving the
application from the Respondent."
5
47. The Union of India challenged the judgment of the Division Bench in
SLP(C) No.33406/2009. During the pendency of the special leave petition,
some compromise appears to have been reached between the writ petitioner and
the authorities and, therefore, an additional affidavit was filed along with agreed
minutes of order before this Court on 12.3.2010. In view of this development,
the Court disposed of the appeal arising out of the special leave petition but
specifically approved the findings recorded by the High Court with regard to
the cut-off date by making the following observations:
"Taking the additional affidavit and the suggestions made by the
learned Attorney General, this appeal is disposed of as requiring no
further adjudication.
However, we make it clear that the findings recorded by the High
Court with regard to the cut off date is not interfered with and
disturbed by this Court in the present case."
GROUNDS OF CHALLENGE
48. The petitioners have questioned the grant of UAS Licences to the private
respondents by contending that the procedure adopted by the DoT was
arbitrary, illegal and in complete violation of Article 14 of the Constitution.
They have relied upon the order passed by the learned Single Judge of the Delhi
High Court as also the judgment of the Division Bench, which was approved by
this Court and pleaded that once the Court has held that the cut-off date, i.e.,
5
25.9.2007 fixed for consideration of the applications was arbitrary and
unconstitutional, the entire procedure adopted by the DoT for grant of UAS
Licences with the approval of the Minister of C&IT is liable to be declared
illegal and quashed. Another plea taken by the petitioners is that the DoT
violated the recommendations made by TRAI that there should be no cap on the
number of Access Service Providers in any service area and this was in
complete violation of Section 11(1) of the 1997 Act. The petitioners have
relied upon the report of the Comptroller and Auditor General (CAG) and
pleaded that the consideration of large number of ineligible applicants and grant
of LoIs and licenses to them is ex facie illegal and arbitrary. The petitioners
have also pleaded that the entire method adopted by the DoT for grant of
licence is flawed because the recommendations made by TRAI for grant of
licences at the entry fee determined in 2001 was wholly arbitrary,
unconstitutional and contrary to public interest. Yet another plea of the
petitioners is that while deciding to grant licences, which are bundled with
spectrum, at the price fixed in 2001 the DoT did not bother to consult the
Finance Ministry and, thereby, violated the mandate of the decision taken by
the Council of Ministers in 2003. The petitioners have also pleaded that the
principle of first-come-first-served is by itself violative of Article 14 of the
Constitution and in any case distortion thereof by the Minister of C&IT and the
5
consequential grant of licences is liable to be annulled. Another ground taken
by the petitioners is that even though a number of licensees failed to fulfil the
roll out obligations and violated conditions of the licence, the Government of
India did not take any action to cancel the licences.
COUNTER AFFIDAVITS OF THE RESPONDENTS
49. Most of the respondents have filed separate but similar counter affidavits
in both the petitions. The main points raised by the respondents are:
(i) The petitioners are not entitled to challenge the recommendations made
by TRAI and the policy decisions taken by the Government for grant of UAS
Licences.
(ii) The Court cannot review and nullify the recommendations made by
TRAI in the matter of allocation of spectrum in 800, 900 and 1800 MHz bands
at the rates fixed in 2001.
(iii) The report prepared by the CAG cannot be relied upon for the purpose of
recording a finding that the procedure adopted for the grant of UAS Licences is
contrary to Article 14 of the Constitution. The private respondents have also
claimed that the observations made by the CAG and the conclusions recorded
by him are seriously flawed and are based on totally unfounded assumptions.
6
(iv) The UAS Licences were given strictly in accordance with the modified
first-come-first-served policy. That the respondents were able to fulfil LoI
conditions because newspapers had already published stories about the possible
grant of licences in the month of January, 2008.
(v) That those who had made applications in 2004 and 2006 cannot be
clubbed with those who had applied in the month of August and September,
2007 because in terms of the existing UASL guidelines they were entitled to
licences.
(vi) That private respondents have made huge investments for creating
infrastructure to provide services in different parts of the country and if the
licences granted to them are cancelled at this stage, public interest would be
adversely affected.
(vii) That the private respondents have been able to secure foreign direct
investment of thousands of crores for providing better telecom services in
remote areas of the country and any intervention by the Court would result in
depriving the people living in those areas of telecom services.
(viii) The Government and TRAI have already initiated action for levy of
penalty/liquidated damages for non-compliance of the roll out obligations and
violation of conditions of the license. That the licensees have not violated any
6
conditions of the license and that the notices issued by TRAI alleging the same
have already been challenged before TDSAT and in most cases, interim orders
have been passed. That the remedy, if any, available to the petitioners is to
approach the TDSAT.
(ix) Some of the respondents have also questioned the application of the
policy of first-come-first-served by asserting that even though they had applied
in 2004 and 2006, and licences had been granted to them before 25.9.2007, the
allocation of spectrum was delayed till 2008 and those who had applied in 2007
were placed above them because they could fulfil the conditions of LoI in terms
of the distorted version of the policy first-come-first-served.
50. The petitioners have filed rejoinder affidavit and reiterated the assertions
made in the main petition that the grant of UAS Licences is fundamentally
flawed and is violative of the Constitutional principles. They have also placed
on record report dated 31.1.2011 submitted by the One Man Committee,
(hereinafter referred to as `One-Man Committee Report'), comprising Justice
Shivaraj V. Patil (former Judge of this Court), which was constituted by the
Government of India vide Office Memorandum dated 13.12.2010 to examine
the appropriateness of the procedure followed by the DoT in issuance of
licences and allocation of spectrum during the period 2001 to 2009. They have
6
also placed on record photostat copies of the notings recorded on the files of the
DoT.
ARGUMENTS
51. Shri Prashant Bhushan, learned counsel for the petitioners in Writ
Petition (C) No. 423 of 2010 and Dr. Subramanian Swamy, who is petitioner-
in-person in Writ Petition (C) No. 10 of 2011 made the following submissions:
(i) The spectrum, which is a national asset, cannot be distributed by
adopting the policy of first-come-first-served on the basis of the
application received by the DoT without any advertisement and
without holding auction.
(ii) The grant of licences bundled with spectrum is ex-facie arbitrary
illegal and violative of Article 14 of the Constitution.
(iii) The decision of the Minister of C&IT to pre-pone the cut-off date
from 1.10.2007 to 25.9.2007, which eliminated large number of
applications, is violative of Article 14 of the Constitution and the
6
entire exercise undertaken with reference to this cut-off date has
resulted in discrimination vis-`-vis other eligible applicants.
(iv) Once the cut-off date fixed by the Minister of C&IT for
consideration of the applications received in the light of the earlier
press release fixing the last date as 1.10.2007 has been declared to
be arbitrary and unconstitutional by the High Court, the
consequential actions taken by the DoT on that basis are liable to
be annulled.
(v) The first-come-first-served policy suffers from a fundamental flaw
inasmuch as there is no defined criterion for operating that policy.
There is no provision for issue of advertisement notifying
obligations for grant of licence and allocation of spectrum and any
person who makes an application becomes entitled to get licence
and spectrum.
(vi) The first-come-first-served policy was manipulated by the Minister
of C&IT to favour some of the applicants including those who
were not even eligible. Shri Bhushan pointed out that, out of 122
applications, 85 were found to be ineligible and those who could
obtain information either from the concerned Minister or the
6
officers of DoT about the change of the criteria for implementing
the first-come-first-served policy got advantage and acquired
priority over those who had applied earlier.
(vii) The meeting of the Telecom Commission scheduled for 9.1.2008
was deliberately postponed because vide letter dated 22.11.2007
the Finance Secretary had strongly objected to the charging of
entry fee fixed in 2001.
(viii) Shri Bhushan pointed out that the recommendations made by
TRAI on 28.8.2007 were contrary to public interest as well as
financial interest of the nation because at the time of entry of 4th
cellular operator the same TRAI had suggested multi-stage bidding
and even for allocation of 3G spectrum the methodology of auction
was suggested but, for no ostensible reason, the so-called theory of
level playing field was innovated for grant of UAS Licences in
2007 on the basis of the entry fee fixed in 2001. Learned counsel
emphasized that the transfer of equity by three of the licensees
immediately after issue of licences for gain of many thousand
crores shows that if the policy of auction had been followed, the
nation would have been enriched by many thousand crores.
6
(ix) Both, Shri Prashant Bhushan and Dr. Subramanian Swamy pointed
out that although the Prime Minister had suggested that a fair and
transparent method be adopted for grant of UAS Licences through
the process of auction, the Minister of C&IT casually and
arbitrarily brushed aside the suggestion and granted licence to the
applicants for extraneous reasons.
(x) Shri Prashant Bhushan also questioned the grant of the benefit of
the policy of dual technology to Tata Teleservices Ltd. by
contending that this was a result of manipulation made by the
service provider. Dr. Subramanian Swamy also raised a concern
regarding the national security and pointed out that some of the
applicants who have trans-border connections have received
licences and they may ultimately prove to be dangerous for the
nation.
52. Shri G.E. Vahanvati, learned Attorney General referred to NTP 1994 and
NTP 1999 and submitted that the policy decision taken by the Government of
India for private sector participation, which could bring in the funds required
for expansion of telecommunication services in different parts of the country,
cannot be scrutinized by the Court. He submitted that in the last more than 20
6
years, the telecom services have expanded beyond anybody's expectation
because of private sector participation and it cannot be said that granting UAS
Licences by charging the entry fee determined at 2001 prices is
unconstitutional. Learned counsel referred to the history of development in the
field of telecommunications and the concept of spectrum, and submitted that the
policy decision taken by the DoT for migration of CDMA service providers was
neither illegal nor unconstitutional.
53. Shri Salve, learned senior counsel appearing for respondent No. 9,
pointed out that Tata Teleservices had sent an application through fax for grant
of GSM for the existing licences which were issued on 19.10.2007 and no
exception can be taken to this because Reliance Telecom, which had applied for
GSM on 6.2.2006, was given the benefit of migration to dual technology on
18.10.2007, i.e. even before the policy was made public. Learned senior counsel
argued that the decision not to auction UAS Licences was based on the
recommendations of TRAI and as the petitioners have not challenged the
recommendations for two years, the exercise undertaken by the DoT for grant
of UAS Licences in 2008 and subsequent allotment of spectrum should not be
nullified. Shri Salve argued that the question of institutional integrity is
involved in the matter and if the Court comes to the conclusion that auction is
the only method for grant of licences and allocation of spectrum then
6
everything should be annulled right from 2001. Learned senior counsel
submitted that multi-stage bidding was done only for the purpose of entry of 4th
cellular operator but, thereafter, no auction was held. He submitted that if the
spectrum was allotted free of charge till 2007, there could be no justification for
auction of licences or spectrum in 2007.
54. Shri C.A. Sundaram, learned counsel appearing for respondent Nos. 2
and 4, heavily relied on paragraphs 7.2, 7.4, 7.12, 7.29, 7.30, 7.37 and 7.39 of
TRAI's recommendations dated 27.10.2003 and argued that the
recommendations made in 2007 were nothing but a continuation of the old
policy and, therefore, the petitioners are not entitled to question the method
adopted for grant of UAS Licences pursuant to the 2007 recommendations.
Learned senior counsel submitted that the policy for grant of UAS Licences and
allocation of spectrum cannot be said to be per se arbitrary because the same
was decided after great deliberations and consideration of international
practices. He also relied upon the speech made by the Prime Minister on
2.11.2007 and submitted that the action of the DoT should not be nullified
because that will have a far-reaching adverse impact on the availability of
telecommunication services in the country.
6
55. Shri Vikas Singh, learned senior counsel appearing for respondent no. 10,
argued that the recommendations made by TRAI in 2007, which were approved
by the Minister of C&IT are in national interest because the same would attract
investment by foreign players and would benefit the people at large. Learned
counsel emphasised that his client has already invested Rs. 6,000 crores and it
would be totally unjust if the licence granted in 2008 is cancelled. Shri Vikas
Singh also submitted that after the grant of licences and allocation of spectrum
the people have been hugely benefited inasmuch as the telecom services have
become competitive with the international market and even cheaper than that.
56. Shri C. S. Vaidyanathan, learned senior counsel appearing for respondent
No. 8, argued that the application made by his client was pending since June,
2006 and its priority was pushed down due to the application of the distorted
version of the first-come-first-served policy. Shri Vaidyanathan pointed out that
when the Minister of C&IT announced that applications will not be received
after 1.10.2007, there was a huge rush of applications and a large number of
players who had no experience in the field of telecom made applications and
got the licences.
57. Dr. Abhishek Manu Singhvi, learned senior counsel appearing for
respondent nos. 11 and 12, argued that his clients had made applications much
6
prior to 2007 but they were unfairly clubbed with those who had applied in
2007 and in this manner the principle of equality was violated. Dr. Singhvi
submitted that if the applications made prior to 2007 had been processed as per
the existing policy, respondent Nos. 11 and 12 would have received licences
bundled with spectrum without competition/objection from anyone.
58. Shri Dayan Krishnan, learned counsel for respondent No. 6, adopted the
arguments of other learned counsel and submitted that the licences granted in
2007 should not be quashed at this belated stage.
59. Shri Rakesh Dwivedi, learned senior counsel for TRAI, referred to
TRAI's written submissions to justify why it had not recommended auction of
licences. Learned senior counsel extensively referred to the recommendations
made by TRAI in 2007 and submitted that even though it was specifically
suggested that the DoT should take a comprehensive decision on the allocation
of spectrum, no effort was made in that direction and the licences were granted
without determining availability of spectrum. Shri Dwivedi also submitted that
TRAI has already initiated action for cancellation of licences of those
respondents who have violated the terms of licence and/or failed to fulfil roll-
out obligations.
7
60. Learned counsel for both the sides relied upon a large number of
decisions. Shri Prashant Bhushan and Dr. Subramanian Swamy relied upon the
following judgements: K. Manjusree v. State of Andhra Pradesh (2008) 3 SCC
512, Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal
Corpn. (2000) 5 SCC 287, Home Communication Ltd. and Anr. v. Union of
India and Ors. 52 (1993) DLT 168, Jamshed Hormusji Wadia v. Board of
Trustees, Port of Mumbai (2004) 3 SCC 214, Chaitanya Kumar v. State of
Karnataka (1986) 2 SCC 594, Shivsagar Tiwari v. Union of India, (1996) 6
SCC 558, Common Cause, A Registered Society (Petrol pumps matter) v.
Union of India (1996) 6 SCC 530 and Nagar Nigam v. Al Faheem Meat Exports
(P) Ltd. (2006) 13 SCC 382. Learned Attorney General and learned counsel
appearing for the private respondents relied upon Delhi Science Forum v.
Union of India (1996) 2 SCC 405, BALCO Employees' Union (Regd.) v. Union
of India (2002) 2 SCC 333, Villianur Iyarkkai Padukappu Maiyam v. Union of
India (2009) 7 SCC 561, Ministry of Labour and Rehabilitation v. Tiffin's
Barytes Asbestos & Paints Ltd. (1985) 3 SCC 594, United India Fire and
General Insurance Co. Ltd. v. K.S. Vishwanathan (1985) 3 SCC 686, State of
T.N. v. M.N. Sundararajan (1980) 4 SCC 592, Sunil Pannalal Banthia v. City &
Industrial Development Corporation of Maharashtra Ltd. (2007) 10 SCC 674,
Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group
7
(2006) 3 SCC 434, Prem Chand Somchand Shah v. Union of India (1991) 2
SCC 48 and Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. (1983) 1 SCC
147.
61. Before dealing with the arguments of the learned counsel for the parties
and adverting to some of the precedents, we consider it necessary to mention
that during the course of hearing, Shri Prashant Bhushan and Dr. Subramanian
Swamy heavily relied upon the CAG report as also the One Man Committee
Report. Learned Attorney General and learned senior counsel appearing for
some of the private respondents also referred to the One Man Committee
Report. However, as the CAG report is being examined by the Public Accounts
Committee and Joint Parliamentary Committee of Parliament we do not
consider it proper to refer to the findings and conclusions contained therein.
Likewise, we do not consider it necessary to advert to the observations made,
and the suggestions given by the One Man Committee because the Government
of India has already taken a decision to segregate spectrum from licence and
allot the same by auction. This is evident from the following extracts of the
press statement dated 29.1.2011 issued by the present Minister of C&IT:
"In future, the spectrum will not be bundled with licence. The licence
to be issued to telecom operators will be in the nature of `unified
licence' and the licence holder will be free to offer any of the
multifarious telecom services. In the event the licence holder would
7
like to offer wireless services, it will have to obtain spectrum through
a market driven process. In future, there will be no concept of
contracted spectrum and, therefore, no concept of initial or start-up
spectrum. Spectrum will be made available only through market
driven process.
While moving towards a new policy dispensation, it is necessary to
ensure a level playing field between all players. Hence going
forward, any new policy of pricing would need to be applied to
equally to all players. Additionally, assignment of balance of
contracted spectrum may need to be ensured for the existing
licensees who have so far been allocated only the start up spectrum
of 4.4 MHz. It may be recalled that showcause notices have been
issued to certain licensees for cancellation. Only in respect of the
licences that will be found valid after the process is completed, the
additional 1.8 MHz will be assigned on their becoming eligible, but
the spectrum will be assigned to them at a price determined under the
new policy.
We need to seriously consider the adoption of an auction process for
allocation and pricing of spectrum beyond 6.2 MHz while ensuring
that there is adequate competition in the auction process.
TRAI had made recommendations in May 2010 and indicated that it
would apprise the Government of the findings of a study on the
question of pricing of 2G spectrum in future. This is expected
shortly. We would examine their recommendations speedily as soon
as they are received, keeping the perspectives that I have outlined,
while finalizing our new policy. I am confident that we will be able
to design a policy that ensures that existing licence holders get the
spectrum they need and are entitled to, while simultaneously,
ensuring that the Government also receives revenues commensurate
with the current market value of spectrum."
62. We shall now consider the questions enumerated in the opening
paragraph of the judgment.
63. Question No.1:
7
At the outset, we consider it proper to observe that even though there is no
universally accepted definition of natural resources, they are generally
understood as elements having intrinsic utility to mankind. They may be
renewable or non renewable. They are thought of as the individual elements of
the natural environment that provide economic and social services to human
society and are considered valuable in their relatively unmodified, natural,
form. A natural resource's value rests in the amount of the material available
and the demand for it. The latter is determined by its usefulness to production.
Natural resources belong to the people but the State legally owns them on
behalf of its people and from that point of view natural resources are considered
as national assets, more so because the State benefits immensely from their
value. The State is empowered to distribute natural resources. However, as
they constitute public property/national asset, while distributing natural
resources, the State is bound to act in consonance with the principles of equality
and public trust and ensure that no action is taken which may be detrimental to
public interest. Like any other State action, constitutionalism must be reflected
at every stage of the distribution of natural resources. In Article 39(b) of the
Constitution it has been provided that the ownership and control of the material
resources of the community should be so distributed so as to best sub-serve the
common good, but no comprehensive legislation has been enacted to generally
7
define natural resources and a framework for their protection. Of course,
environment laws enacted by Parliament and State legislatures deal with
specific natural resources, i.e., Forest, Air, Water, Costal Zones, etc.
64. The ownership regime relating to natural resources can also be
ascertained from international conventions and customary international law,
common law and national constitutions. In international law, it rests upon the
concept of sovereignty and seeks to respect the principle of permanent
sovereignty (of peoples and nations) over (their) natural resources as asserted in
the 17th Session of the United Nations General Assemble and then affirmed as a
customary international norm by the International Court of Justice in the case
opposing the Democratic Republic of Congo to Uganda. Common Law
recognizes States as having the authority to protect natural resources insofar as
the resources are within the interests of the general public. The State is deemed
to have a proprietary interest in natural resources and must act as guardian and
trustee in relation to the same. Constitutions across the world focus on
establishing natural resources as owned by, and for the benefit of, the country.
In most instances where constitutions specifically address ownership of natural
resources, the Sovereign State, or, as it is more commonly expressed, `the
people', is designated as the owner of the natural resource.
7
65. Spectrum has been internationally accepted as a scarce, finite and
renewable natural resource which is susceptible to degradation in case of
inefficient utilisation. It has a high economic value in the light of the demand
for it on account of the tremendous growth in the telecom sector. Although it
does not belong to a particular State, right of use has been granted to States as
per international norms.
66. In India, the Courts have given an expansive interpretation to the concept
of natural resources and have from time to time issued directions, by relying
upon the provisions contained in Articles 38, 39, 48, 48A and 51A(g), for
protection and proper allocation/distribution of natural resources and have
repeatedly insisted on compliance of the constitutional principles in the process
of distribution, transfer and alienation to private persons. The doctrine of
public trust, which was evolved in Illinois Central Railroad Co. v. People of the
State of Illinois 146 U.S. 387 (1892), has been held by this Court to be a part of
the Indian jurisprudence in M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 and
has been applied in Jamshed Hormusji Wadia v. Board of Trustee, Port of
Mumbai (2002) 3 SCC 214, Intellectuals Forum, Tirupathi v. State of A.P.
(2006) 3 SCC 549 and Fomento Resorts and Hotels Limited v. Minguel Martins
(2009) 3 SCC 571. In Jamshed Hormusji Wadia's case, this Court held that the
State's actions and the actions of its agencies/instrumentalities must be for the
7
public good, achieving the objects for which they exist and should not be
arbitrary or capricious. In the field of contracts, the State and its
instrumentalities should design their activities in a manner which would ensure
competition and not discrimination. They can augment their resources but the
object should be to serve the public cause and to do public good by resorting to
fair and reasonable methods. In Fomento Resorts and Hotels Limited case, the
Court referred to the article of Prof. Joseph L. Sax and made the following
observations:
"53. The public trust doctrine enjoins upon the Government to protect
the resources for the enjoyment of the general public rather than to
permit their use for private ownership or commercial purposes. This
doctrine puts an implicit embargo on the right of the State to transfer
public properties to private party if such transfer affects public
interest, mandates affirmative State action for effective management
of natural resources and empowers the citizens to question ineffective
management thereof.
54. The heart of the public trust doctrine is that it imposes limits and
obligations upon government agencies and their administrators on
behalf of all the people and especially future generations. For
example, renewable and non-renewable resources, associated uses,
ecological values or objects in which the public has a special interest
(i.e. public lands, waters, etc.) are held subject to the duty of the State
not to impair such resources, uses or values, even if private interests
are involved. The same obligations apply to managers of forests,
monuments, parks, the public domain and other public assets.
Professor Joseph L. Sax in his classic article, "The Public Trust
Doctrine in Natural Resources Law: Effective Judicial Intervention"
(1970), indicates that the public trust doctrine, of all concepts known
to law, constitutes the best practical and philosophical premise and
7
legal tool for protecting public rights and for protecting and managing
resources, ecological values or objects held in trust.
55. The public trust doctrine is a tool for exerting long-established
public rights over short-term public rights and private gain. Today
every person exercising his or her right to use the air, water, or land
and associated natural ecosystems has the obligation to secure for the
rest of us the right to live or otherwise use that same resource or
property for the long-term and enjoyment by future generations. To
say it another way, a landowner or lessee and a water right holder has
an obligation to use such resources in a manner as not to impair or
diminish the people's rights and the people's long-term interest in that
property or resource, including down slope lands, waters and
resources."
67. In Secretary, Ministry of Information & Broadcasting, Govt. of India v.
Cricket Assn. of Bengal, (1995) 2 SCC 161, the Court was dealing with the
right of organizers of an event, such as a sport tournament, to its live audio-
visual broadcast, universally, through an agency of their choice, national or
foreign. In paragraph 78, the Court described the airwaves/frequencies as public
property in the following words:
"There is no doubt that since the airwaves/frequencies are a public
property and are also limited, they have to be used in the best interest
of the society and this can be done either by a central authority by
establishing its own broadcasting network or regulating the grant of
licences to other agencies, including the private agencies."
68. In Reliance Natural Resources Limited v. Reliance Industries Limited,
(2010) 7 SCC 1, P. Sathasivam J., with whom Balakrishnan, C.J., agreed, made
the following observations:
7
"It must be noted that the constitutional mandate is that the natural
resources belong to the people of this country. The nature of the word
"vest" must be seen in the context of the public trust doctrine (PTD).
Even though this doctrine has been applied in cases dealing with
environmental jurisprudence, it has its broader application."
Learned Judge then referred to the judgments, In re Special Reference No. 1 of
2001 (2004) 4 SCC 489, M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 and
observed:
"This doctrine is part of Indian law and finds application in the
present case as well. It is thus the duty of the Government to provide
complete protection to the natural resources as a trustee of the people
at large."
The Court also held that natural resources are vested with the Government as a
matter of trust in the name of the people of India, thus it is the solemn duty of
the State to protect the national interest and natural resources must always be
used in the interests of the country and not private interests.
69. As natural resources are public goods, the doctrine of equality, which
emerges from the concepts of justice and fairness, must guide the State in
determining the actual mechanism for distribution of natural resources. In this
regard, the doctrine of equality has two aspects: first, it regulates the rights and
obligations of the State vis-`-vis its people and demands that the people be
granted equitable access to natural resources and/or its products and that they
7
are adequately compensated for the transfer of the resource to the private
domain; and second, it regulates the rights and obligations of the State vis-`-vis
private parties seeking to acquire/use the resource and demands that the
procedure adopted for distribution is just, non-arbitrary and transparent and that
it does not discriminate between similarly placed private parties.
70. In Akhil Bharatiya Upbhokta Congress v. State of M.P. (2011) 5 SCC 29,
this Court examined the legality of the action taken by the Government of
Madhya Pradesh to allot 20 acres land to an institute established in the name of
Kushabhau Thakre on the basis of an application made by the Trust. One of the
grounds on which the appellant challenged the allotment of land was that the
State Government had not adopted any rational method consistent with the
doctrine of equality. The High Court negatived the appellant's challenge.
Before this Court, learned senior counsel appearing for the State relied upon
the judgments in Ugar Sugar Works Ltd. v. Delhi Administration (2001) 3 SCC
635, State of U.P. v. Choudhary Rambeer Singh (2008) 5 SCC 550, State of
Orissa v. Gopinath Dash (2005) 13 SCC 495 and Meerut Development
Authority v. Association of Management Studies (2009) 6 SCC 171 and argued
that the Court cannot exercise the power of judicial review to nullify the policy
framed by the State Government to allot Nazul land without advertisement.
8
This Court rejected the argument, referred to the judgments in Ramanna
Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489,
S.G. Jaisinghani v. Union of India AIR 1967 SC 1427, Kasturilal Lakshmi
Reddy v. State of J & K (1980) 4 SCC 1, Common Cause v. Union of India
(1996) 6 SCC 530, Shrilekha Vidyarthy v. State of U.P. (1991) 1 SCC 212, LIC
v. Consumer Education and Research Centre (1995) 5 SCC 482, New India
Public School v. HUDA (1996) 5 SCC 510 and held:
"What needs to be emphasised is that the State and/or its
agencies/instrumentalities cannot give largesse to any person
according to the sweet will and whims of the political entities
and/or officers of the State. Every action/decision of the State
and/or its agencies/instrumentalities to give largesse or confer
benefit must be founded on a sound, transparent, discernible and
well-defined policy, which shall be made known to the public by
publication in the Official Gazette and other recognised modes of
publicity and such policy must be implemented/executed by
adopting a non-discriminatory and non-arbitrary method
irrespective of the class or category of persons proposed to be
benefited by the policy. The distribution of largesse like allotment
of land, grant of quota, permit licence, etc. by the State and its
agencies/instrumentalities should always be done in a fair and
equitable manner and the element of favouritism or nepotism shall
not influence the exercise of discretion, if any, conferred upon the
particular functionary or officer of the State."
71. In Sachidanand Pandey v. State of West Bengal (1987) 2 SCC 295,
the Court referred to some of the precedents and laid down the following
propositions:
8
"State-owned or public-owned property is not to be dealt with at
the absolute discretion of the executive. Certain precepts and
principles have to be observed. Public interest is the paramount
consideration. One of the methods of securing the public interest,
when it is considered necessary to dispose of a property, is to sell
the property by public auction or by inviting tenders. Though that
is the ordinary rule, it is not an invariable rule. There may be
situations where there are compelling reasons necessitating
departure from the rule but then the reasons for the departure must
be rational and should not be suggestive of discrimination.
Appearance of public justice is as important as doing justice.
Nothing should be done which gives an appearance of bias,
jobbery or nepotism."
72. In conclusion, we hold that the State is the legal owner of the natural
resources as a trustee of the people and although it is empowered to distribute
the same, the process of distribution must be guided by the constitutional
principles including the doctrine of equality and larger public good.
73. Question No.2:
Although, while making recommendations on 28.8.2007, TRAI itself had
recognised that spectrum was a scarce commodity, it made recommendation for
allocation of 2G spectrum on the basis of 2001 price by invoking the theory of
level playing field. Paragraph 2.40 of the recommendations dated 28.8.2007
shows that as per TRAI's own assessment the existing system of spectrum
allocation criteria, pricing methodology and the management system suffered
from number of deficiencies and there was an urgent need to address the issues
8
linked with spectrum efficiency and its management and yet it decided to
recommend the allocation of spectrum at the price determined in 2001. All this
was done in the name of growth, affordability, penetration of wireless services
in semi urban and rural areas, etc. Unfortunately, while doing so, TRAI
completely overlooked that one of the main objectives of NTP 1999 was that
spectrum should be utilised efficiently, economically, rationally and optimally
and there should be a transparent process of allocation of frequency spectrum as
also the fact that in terms of the decision taken by the Council of Ministers in
2003 to approve the recommendations of the Group of Ministers the DoT and
Ministry of Finance were required to discuss and finalise the spectrum pricing
formula. To say the least, the entire approach adopted by TRAI was lopsided
and contrary to the decision taken by the Council of Ministers and its
recommendations became a handle for the then the Minister of C&IT and the
officers of the DoT who virtually gifted away the important national asset at
throw away prices by willfully ignoring the concerns raised from various
quarters including the Prime Minister, Ministry of Finance and also some of its
own officers. This becomes clear from the fact that soon after obtaining the
licences, some of the beneficiaries off-loaded their stakes to others, in the name
of transfer of equity or infusion of fresh capital by foreign companies, and
thereby made huge profits. We have no doubt that if the method of auction had
8
been adopted for grant of licence which could be the only rational transparent
method for distribution of national wealth, the nation would have been enriched
by many thousand crores.
74. While it cannot be denied that TRAI is an expert body assigned with
important functions under the 1997 Act, it cannot make recommendations
overlooking the basic constitutional postulates and established principles and
make recommendations which would deny people from participating in the
distribution of national wealth and benefit a handful of persons. Therefore,
even though the scope of judicial review in such matters is extremely limited, as
pointed out in Delhi Science Forum v. Union of India (supra) and a large
number of other judgments relied upon by the learned counsel of the
respondents, keeping in view the facts which have been brought to the notice of
the Court that the mechanism evolved by TRAI for allocation of spectrum and
the methodology adopted by the then Minister of C&IT and the officers of DoT
for grant of UAS Licences may have caused huge loss to the nation, we have no
hesitation to record a finding that the recommendations made by TRAI were
flawed in many respects and implementation thereof by the DoT resulted in
gross violation of the objective of NPT 1999 and the decision taken by the
Council of Ministers on 31.10.2003.
8
75. We may also mention that even though in its recommendations dated
28.8.2007, TRAI had not specifically recommended that entry fee be fixed at
2001 rates, but paragraph 2.73 and other related paragraphs of its
recommendations state that it has decided not to recommend the standard option
for pricing of spectrum in 2G bands keeping in view the level playing field for
the new entrants. It is impossible to approve the decision taken by the DoT to
act upon those recommendations. We also consider it necessary to observe that
in today's dynamism and unprecedented growth of telecom sector, the entry fee
determined in 2001 ought to have been treated by the TRAI as wholly
unrealistic for grant of licence along with start up spectrum. In our view, the
recommendations made by TRAI in this regard were contrary to the decision of
the Council of Ministers that the DoT shall discuss the issue of spectrum pricing
with the Ministry of Finance along with the issue of incentive for efficient use
of spectrum as well as disincentive for sub-optimal usages. Being an expert
body, it was incumbent upon the TRAI to make suitable recommendations even
for the 2G bands especially in light of the deficiencies of the present system
which it had itself pointed out. We do not find merit in the reasoning of TRAI
that the consideration of maintaining a level playing field prevented a realistic
reassessment of the entry fee.
8
76. Question Nos.3 and 4:
There is a fundamental flaw in the first-come-first-served policy inasmuch as it
involves an element of pure chance or accident. In matters involving award of
contracts or grant of licence or permission to use public property, the invocation
of first-come-first-served policy has inherently dangerous implications. Any
person who has access to the power corridor at the highest or the lowest level
may be able to obtain information from the Government files or the files of the
agency/instrumentality of the State that a particular public property or asset is
likely to be disposed of or a contract is likely to be awarded or a licence or
permission is likely to be given, he would immediately make an application and
would become entitled to stand first in the queue at the cost of all others who
may have a better claim. This Court has repeatedly held that wherever a
contract is to be awarded or a licence is to be given, the public authority must
adopt a transparent and fair method for making selections so that all eligible
persons get a fair opportunity of competition. To put it differently, the State and
its agencies/instrumentalities must always adopt a rational method for disposal
of public property and no attempt should be made to scuttle the claim of worthy
applicants. When it comes to alienation of scarce natural resources like
spectrum etc., it is the burden of the State to ensure that a non-discriminatory
method is adopted for distribution and alienation, which would necessarily
8
result in protection of national/public interest. In our view, a duly publicised
auction conducted fairly and impartially is perhaps the best method for
discharging this burden and the methods like first-come-first-served when used
for alienation of natural resources/public property are likely to be misused by
unscrupulous people who are only interested in garnering maximum financial
benefit and have no respect for the constitutional ethos and values. In other
words, while transferring or alienating the natural resources, the State is duty
bound to adopt the method of auction by giving wide publicity so that all
eligible persons can participate in the process.
77. The exercise undertaken by the officers of the DoT between September,
2007 and March 2008, under the leadership of the then Minister of C&IT was
wholly arbitrary, capricious and contrary to public interest apart from being
violative of the doctrine of equality. The material produced before the Court
shows that the Minister of C&IT wanted to favour some companies at the cost
of the Public Exchequer and for this purpose, he took the following steps:
(i) Soon after his appointment as Minister of C&IT, he directed that
all the applications received for grant of UAS Licence should be kept
pending till the receipt of TRAI recommendations.
(ii) The recommendations made by TRAI on 28.8.2007 were not
placed before the full Telecom Commission which, among others, would
8
have included the Finance Secretary. The notice of the meeting of the
Telecom Commission was not given to any of the non permanent
members despite the fact that the recommendations made by TRAI for
allocation of spectrum in 2G bands had serious financial implications.
This has been established from the pleadings and the records produced
before this Court that after issue of licences, 3 applicants transferred their
equities for a total sum of Rs.24,493 crores in favour of foreign
companies. Therefore, it was absolutely necessary for the DoT to take
the opinion of the Finance Ministry as per the requirement of the
Government of India (Transaction of Business) Rules, 1961.
(iii) The officers of the DoT who attended the meeting of the Telecom
Commission held on 10.10.2007 hardly had any choice but to approve
the recommendations made by TRAI. If they had not done so, they
would have incurred the wrath of Minister of C&IT.
(iv) In view of the approval by the Council of Ministers of the
recommendations made by the Group of Ministers in 2003, the DoT had
to discuss the issue of spectrum pricing with the Ministry of Finance.
Therefore, the DoT was under an obligation to involve the Ministry of
Finance before any decision could be taken in the context of paragraphs
2.78 and 2.79 of TRAI's recommendations. However, as the Minister of
8
C&IT was very much conscious of the fact that the Secretary, Finance,
had objected to the allocation of 2G spectrum at the rates fixed in 2001,
he did not consult the Finance Minister or the officers of the Finance
Ministry.
(v) The Minister of C&IT brushed aside the suggestion made by the
Minister of Law and Justice for placing the matter before the Empowered
Group of Ministers. Not only this, within few hours of the receipt of the
suggestion made by the Prime Minister in his letter dated 2.11.2007 that
keeping in view the inadequacy of spectrum, transparency and fairness
should be maintained in the matter of allocation thereof, the Minister of
C&IT rejected the same by saying that it will be unfair, discriminatory,
arbitrary and capricious to auction the spectrum to new applicants
because it will not give them level playing field.
(vi) The Minister C&IT introduced cut off date as 25.9.2007 for
consideration of the applications received for grant of licence despite the
fact that only one day prior to this, press release was issued by the DoT
fixing 1.10.2007 as the last date for receipt of the applications. This
arbitrary action of the Minister of C&IT though appears to be innocuous,
actually benefitted some of the real estate companies who did not have
any experience in dealing with telecom services and who had made
8
applications only on 24.9.2007, i.e., one day before the cut off date fixed
by the Minister of C&IT on his own.
(vii) The cut off date, i.e. 25.9.2007 decided by the Minister of C&IT
on 2.11.2007 was not made public till 10.1.2008 and the first-come-first-
served policy, which was being followed since 2003 was changed by him
on 7.1.2008 and was incorporated in press release dated 10.1.2008. This
enabled some of the applicants, who had access either to the Minister or
the officers of the DoT to get the demand drafts, bank guarantee, etc.
prepared in advance for compliance of conditions of the LoIs, which was
the basis for determination of seniority for grant of licences and
allocation of spectrum.
(viii) The meeting of the full Telecom Commission, which was
scheduled to be held on 9.1.2008 to consider issues relating to grant of
licences and pricing of spectrum was deliberately postponed on 7.1.2008
so that the Secretary, Finance and Secretaries of three other important
Departments may not be able to raise objections against the procedure
devised by the DoT for grant of licence and allocation of spectrum by
applying the principle of level playing field.
(ix) The manner in which the exercise for grant of LoIs to the
applicants was conducted on 10.1.2008 leaves no room for doubt that
9
every thing was stage managed to favour those who were able to know in
advance the change in the implementation of the first-come-first served
policy. As a result of this, some of the companies which had submitted
applications in 2004 or 2006 were pushed down in the priority and those
who had applied between August and September 2007 succeeded in
getting higher seniority entitling them to allocation of spectrum on
priority basis.
78. The argument of Shri Harish Salve, learned senior counsel, that if the
Court finds that the exercise undertaken for grant of UAS Licences has resulted
in violation of the institutional integrity, then all the licences granted 2001
onwards should be cancelled does not deserve acceptance because those who
have got licence between 2001 and 24.9.2007 are not parties to these petitions
and legality of the licences granted to them has not been questioned before this
Court.
79. In majority of judgments relied upon by learned Attorney General and
learned counsel for the respondents, it has been held that the power of judicial
review should be exercised with great care and circumspection and the Court
should not ordinarily interfere with the policy decisions of the Government in
financial matters. There cannot be any quarrel with the proposition that the
Court cannot substitute its opinion for the one formed by the experts in the
9
particular field and due respect should be given to the wisdom of those who are
entrusted with the task of framing the policies. We are also conscious of the
fact that the Court should not interfere with the fiscal policies of the State.
However, when it is clearly demonstrated that the policy framed by the State or
its agency/instrumentality and/or its implementation is contrary to public
interest or is violative of the constitutional principles, it is the duty of the Court
to exercise its jurisdiction in larger public interest and reject the stock plea of
the State that the scope of judicial review should not be exceeded beyond the
recognised parameters. When matters like these are brought before the judicial
constituent of the State by public spirited citizens, it becomes the duty of the
Court to exercise its power in larger public interest and ensure that the
institutional integrity is not compromised by those in whom the people have
reposed trust and who have taken oath to discharge duties in accordance with
the Constitution and the law without fear or favour, affection or ill will and
who, as any other citizen, enjoy fundamental rights and, at the same time, are
bound to perform the duties enumerated in Article 51A. Reference in this
connection can usefully be made to the judgment of the three Judge Bench
headed by Chief Justice Kapadia in Centre for P.I.L. v. Union of India (2011) 4
SCC 1.
9
80. Before concluding, we consider it imperative to observe that but for the vigilance of some enlightened citizens who held important constitutional and other positions and discharged their duties in larger public interest and Non Governmental Organisations who have been constantly fighting for clean governance and accountability of the constitutional institutions, unsuspecting citizens and the Nation would never have known how the scarce natural
resource spared by Army has been grabbed by those who enjoy money power and who have been able to manipulate the system.
81. In the result, the writ petitions are allowed in the following terms:
(i) The licences granted to the private respondents on or after 10.1.2008 pursuant to two press releases issued on 10.1.2008 and subsequent allocation of spectrum to the licensees are declared illegal and are quashed.
(ii) The above direction shall become operative after four months.
(iii) Keeping in view the decision taken by the Central Government in 2011, TRAI shall make fresh recommendations for grant of licence and allocation of spectrum in 2G band in 22 Service Areas by auction, as was done for allocation of spectrum in 3G band.
(iv) The Central Government shall consider the recommendations of TRAI and take appropriate decision within next one month and fresh licences be granted by auction.
(v) Respondent Nos.2, 3 and 9 who have been benefited at the cost of Public Exchequer by a wholly arbitrary and unconstitutional action taken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band and who off-loaded their stakes for many thousand crores in the name of fresh infusion of
equity or transfer of equity shall pay cost of Rs.5 crores each. Respondent Nos. 4, 6, 7 and 10 shall pay cost of Rs.50 lakhs each because they too had been benefited by the wholly arbitrary and unconstitutional exercise undertaken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band. We have not imposed cost on the respondents who had submitted their applications in 2004 and 2006 and whose applications were kept pending till 2007.
(vi) Within four months, 50% of the cost shall be deposited with the Supreme Court Legal Services Committee for being used for providing legal aid to poor and indigent litigants. The remaining 50% cost shall be deposited in the funds created for Resettlement and Welfare Schemes of the Ministry of Defence.
(vii) However, it is made clear that the observations made in this judgment shall not, in any manner, affect the pending investigation by the CBI, Directorate of Enforcement and others agencies or cause prejudice to those who are facing prosecution in the cases registered by the CBI or who may face prosecution on the basis of chargesheet(s) which may be filed by the CBI in future and the Special Judge, CBI shall decide the matter uninfluenced by this judgment. We also make it clear that this judgment shall not prejudice any person in the action which may be taken by other investigating agencies under Income Tax Act, 1961, Prevention of Money Laundering Act, 2002 and other similar statutes.
.....................................J.
(G.S. SINGHVI)
.....................................J.
(ASOK KUMAR GANGULY)
New Delhi;
February 02, 2012.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 423 OF 2010
Centre for Public Interest Litigation and others ...Petitioners
versus
Union of India and others ...Respondents
With
WRIT PETITION (CIVIL) NO. 10 OF 2011
Dr. Subramanian Swamy ...Petitioner
versus
Union of India and others ...Respondents
J U D G M E N T
G.S. Singhvi, J.
1. The important questions which arise for consideration in these petitions,
one of which has been filed by Centre for Public Interest Litigation, a registered
Society formed by Shri V.M. Tarkunde (former Judge of this Court) for taking
up causes of public interest and conducting public interest litigation in an
organised manner, Lok Satta, a registered Society dedicated to political
2
governance, reforms and fight against corruption, Telecom Watchdog and
Common Cause, both Non-Governmental Organisations registered as Societies
for taking up issues of public importance and national interest, Sarva Shri J.M.
Lingdoh, T.S. Krishnamurthi and N. Gopalasamy, all former Chief Election
Commissioners, P. Shanker, former Central Vigilance Commissioner, Julio F.
Ribero, former member of the Indian Police Service, who served as Director
General of Police, Gujarat, Punjab and C.R.P.F. and Commissioner of Police,
Mumbai, P.R. Guha, an eminent Senior Journalist and visiting faculty member
of various institutions including IIMs, IITs, FTII, IIFT, Delhi University,
Jawaharlal Nehru University and Jamia Milia Islamia University and Admiral
R.H. Tahiliyani, former Chief of Naval Staff, former Governor and former
Chairman of Transparency International India and the other has been filed by
Dr. Subramanian Swami, a political and social activist, are:
(i) Whether the Government has the right to alienate, transfer or
distribute natural resources/national assets otherwise than by following a
fair and transparent method consistent with the fundamentals of the
equality clause enshrined in the Constitution?
(ii) Whether the recommendations made by the Telecom Regulatory
Authority of India (TRAI) on 28.8.2007 for grant of Unified Access
3
Service Licence (for short `UAS Licence') with 2G spectrum in 800, 900
and 1800 MHz at the price fixed in 2001, which were approved by the
Department of Telecommunications (DoT), were contrary to the decision
taken by the Council of Ministers on 31.10.2003?
(iii) Whether the exercise undertaken by the DoT from September 2007
to March 2008 for grant of UAS Licences to the private respondents in
terms of the recommendations made by TRAI is vitiated due to
arbitrariness and malafides and is contrary to public interest?
(iv) Whether the policy of first-come-first-served followed by the DoT
for grant of licences is ultra vires the provisions of Article 14 of the
Constitution and whether the said principle was arbitrarily changed by
the Minister of Communications and Information Technology
(hereinafter referred to as `the Minister of C&IT'), without consulting
TRAI, with a view to favour some of the applicants?
(v) Whether the licences granted to ineligible applicants and those
who failed to fulfil the terms and conditions of the licence are liable to be
quashed?
4
2. For detailed examination of the issues raised by the petitioners, it will be
useful to briefly notice the history of the growth of telecommunications in the
country and the reforms introduced 1984 onwards.
3. In 1839, the first telegraph link was experimented between Calcutta and
Diamond Harbour covering 21 miles. In 1851, the telegraph line was opened
for traffic, mostly for the official work of the East India Company. In course of
time, telegraphy service was made available for public traffic. The Indian
Telegraph Act was enacted in 1885. It gave the exclusive privilege of
establishing, maintaining and working of "telegraphs" to the Central
Government. It also empowered the Government to grant licences on such
conditions and in consideration of such payments as it thought fit, to any person
to establish, maintain or work a telegraph in any part of India.
4. After independence, Government of India took complete control of the telecom
sector and brought it under the Post & Telegraph Department. One major step taken for
improving telecommunication services in the country was the establishment of a modern
telecommunication manufacturing facility at Bangalore under the Public Sector, in the
name of "Indian Telephone Industries Ltd." The reforms in the telecommunication sector
started in 1984 when the Centre for Development of Telematics (C-DoT) was set up for
developing indigenous technologies and permissions were given to the private sector to
5
manufacture subscriber-equipment. In 1986, Mahanagar Telephone Nigam Ltd.,
(MTNL) and Videsh Sanchar Nigam Ltd., (VSNL) were set up.
5. The New Economic Policy of India was announced on 24.7.1991. It was
aimed at meeting India's competitiveness in the global market; rapid
growth of exports, attracting foreign direct investment; and
stimulating domestic investments. With a view to achieve standards
comparable to international facilities, the sub-sector of Value Added
Services was opened up to private investment in July 1992 for the
following services: (a) Electronic Mail; (b) Voice Mail; (c) Data
Services; (d) Audio Text Services; (e) Video Text Services; (f) Video
Conferencing; (g) Radio Paging; and (h) Cellular Mobile Telephone.
In respect of services (a) to (f), the companies registered in
India were permitted to operate under a licence on non-exclusive
basis. For services covered by (g) and (h) mentioned above, keeping
in view the constraints on the number of companies that could be
allowed to operate, a policy of selection through a system of tendering
was followed for grant of licences.
6
National Telecom Policy 1994
6. National Telecom Policy 1994 (NTP 1994) was announced on 13.5.1994.
This was the first major step towards deregulation, liberalization and private
sector participation. The objectives of the policy were:
(i) affording telecommunication for all and ensuring the
availability of telephone on demand;
(ii) providing certain basic telecom services at affordable and
reasonable prices to all people and covering all villages;
(iii) giving world standard telecom services; addressing
consumer complaints, dispute resolution and public
interface to receive special attention and providing widest
permissible range of services to meet the customers'
demand and at the same time at a reasonable price;
(iv) creating a major manufacturing base and major export of
telecom equipment having regard to country's size and
development; and
(v) protecting the defence and security interest of the
country.
7. In furtherance of NTP 1994, licences were granted to eight Cellular
Mobile Telephone Service (CMTS) operators, two in each of the four
metropolitan cities of Delhi, Mumbai (Bombay), Kolkata (Calcutta) and
7
Chennai (Madras). In the second phase, in December 1995, after following a
competitive bidding process, 14 CMTS licences were awarded in 18 state
circles, 6 Basic Telephone Services (BTS) licences were awarded in 6 state
circles and paging licences were awarded in 27 cities and 18 state circles.
However, this did not yield the intended results apparently because revenue
realised by the cellular and basic operators was less than the projections and the
operators were unable to arrange finances for their projects.
New Telecom Policy 1999
8. On the directions of the Prime Minister, a high level Group on
Telecommunications (GoT) was constituted on 20.11.1998 to review the
existing telecom policy and suggest further reforms. On the basis of the report
of the GoT, a draft New Telecom Policy 1999 (NTP 1999) was formulated.
After its approval by the Cabinet, NTP 1999 was announced to be effective
from 1.4.1999. NTP 1999 had the following objectives:
(i) to make available affordable and effective communications for
the citizens, considering access to telecommunications as utmost
important for achievement of the country's social and economic
goals;
(ii) to provide universal service to all uncovered areas including the
rural areas and also provide high level services capable of
8
meeting the needs of the country's economy by striking a
balance between the two;
(iii) to encourage development of telecommunication in remote,
hilly and tribal areas of the country;
(iv) to create a modern and efficient telecommunications
infrastructure taking into account the convergence of IT, media,
telecom and consumer electronics which will in turn propel
India to become an IT superpower;.
(v) to convert PCOs wherever justified into Public Teleinfo centres
having multimedia capability such as Integrated Services
Digital Network (ISDN) services, remote database access,
government and community information systems, etc.;
(vi) to transform, in a time bound manner, the telecommunications
sector in both urban and rural areas into a greater competitive
environment providing equal opportunities and level playing
field for all players;
(vii) to strengthen research and development efforts in the country
and provide an impetus to build world class manufacturing
capabilities;
(viii) to achieve efficiency and transparency in spectrum
management;
(ix) to protect defence and security interests of the country; and
(x) to enable Indian Telecom Companies to become truly global
players.
9
9. NTP 1999 categorized 8 services in the telecom sector, namely; (i)
Cellular Mobile Service Providers (CMSPs), Fixed Service Providers
(FSPs) and Cable Service Providers, collectively referred as `Access
Providers'; (ii) Radio Paging Service Providers; (iii) Public Mobile Radio
Trunking Service Providers; (iv) National Long Distance Operators; (v)
International Long Distance Operators; (vi) Other Service Providers,
(vii) Global Mobile Personal Communication by Satellite (GMPCS)
Service Providers; (viii) V-SAT based Service Providers. NTP 1999 dealt
with, and provided the framework for, all these categories of telecom
service providers.
10. The policy on spectrum management as enumerated in NTP 1999
was as under:
(i) Proliferation of new technologies and the growing demand for
telecommunication services has led to manifold increase in
demand for spectrum and consequently it is essential that the
spectrum is utilized efficiently, economically, rationally and
optimally.
(ii) There is a need for a transparent process of allocation of
frequency spectrum for use by a service provider and making it
available to various users under specific conditions.
(iii) With the proliferation of new technologies it is essential to
revise the National Frequency Allocation Plan (NFAP) in its
1
entirety so that it becomes the basis for development,
manufacturing and spectrum utilization activities in the country
amongst all users. NFAP was under review and the revised
NFAP was to be made public by the end of 1999 detailing
information regarding allocation of frequency bands for various
services, without including security information.
(iv) NFAP would be reviewed no later than every two years and
would be in line with radio regulations of the International
Telecommunication Union (ITU).
(v) Adequate spectrum is to be made available to meet the growing
need of telecommunication services. Efforts would be made for
relocating frequency bands assigned earlier to defence and
others. Compensation for relocation may be provided out of
spectrum fee and revenue share.
(vi) There is a need to review the spectrum allocation in a planned
manner so that required frequency bands are available to the service
providers.
(vii) There is a need to have a transparent process of allocation of
frequency spectrum which is effective and efficient and the
same would be further examined in the light of ITU guidelines.
In this regard the following course of action shall be adopted viz.:
(a)spectrum usage fee shall be charged;
(b)an Inter-Ministerial Group to be called Wireless Planning
Coordination Committee, as a part of the Ministry of Communications
for periodical review of spectrum availability and broad allocation
policy, should be set up; and
1
(c)massive computerization in WPC Wing would be started in the next
three months so as to achieve the objective of making all operations
completely computerized by the end of the year 2000.
(emphasis supplied)
Establishment of the Telecommunication Commission (for short, `the
Telecom Commission') and the Telecom Regulatory Authority of India.
11. On 11.4.1989, the Council of Ministers passed a resolution and decided
to establish the Telecom Commission. The relevant portions of that resolution
are extracted below:
"CABINET SECRETARIAT
New Delhi the 11th April, 1989
RESOLUTION
CONSTITUTION OF TELECOM COMMISSION
No. 15/1/2/87-Cab. 1. Telecommunication service is an
essential infrastructure for national development. It has impact on
social and economic activities. Besides, business, industry and
administration depends heavily on information and telecom for
productivity, efficiency and their day-to-day operations. Its
development, therefore, is vital for nation building.
In order to promote rapid development in all aspects of
telecommunications including technology, production and
services, the Government of India consider it necessary to set up an
organisation, which will have responsibility in the entire field of
telecommunications.
After careful consideration, the Government of India have
decided to establish a Telecommunication Commission with full
executive and financial powers modelled on the lines of the
Atomic Energy Commission.
2. Constitution of the Commission
1
(a) The Commission will consist of full time and part time
Members;
(b) The Secretary to the Government of India in the Department of
Telecommunications shall be the ex-officio Chairman of the
Commission;
(c) The full time Members of the Commission shall be ex-officio
Secretary to the Government of India in the Department of
Telecommunications. One of these Members shall be Member
for Finance; and
(d) The Secretary and the full time Members of the Commission
shall be drawn from the best persons available, including from
within the Department of Telecommunications.
3. Functions
The Telecom Commission shall be responsible :
(a) For formulating the policy of the Department of
Telecommunications for approval of the Government;
(b) For preparing the budget for the Department of
Telecommunications for each financial year and getting it
approved by the Government; and
(c) Implementation of the Government's policy in all matters
concerning telecommunication.
4. Within the limits of the budget provision, approval by the
Parliament, the Commission shall have the powers of the
Government of India, both administrative and financial, for
carrying out the work of the Department of
Telecommunications.
1
5. Chairman
(a) The Chairman, in his capacity as Secretary to the
Government of India in the Department of
Telecommunications, shall be responsible under the
Minister of Communications for arriving at decisions on
technical questions and advising Government on policy
and allied matters of telecommunication. All
recommendations of the Commission on policy and allied
matters shall be put to the Minister of Communications
through the Chairman.
(b) In case of any difference of opinion in the meetings of
the Commission, the decision of the Chairman shall be
final, but in financial matters, Member (Finance) of the
Commission will have access to Finance Minister.
(c) The Chairman may authorise any Member of the
Commission to exercise on his behalf, subject to such
general or special orders as he may issue from time to
time, such of his powers and responsibilities as he may
decide.
6. Member Finance
The Member of Finance shall exercise powers of the
Government of India in financial matters concerning the
Department of Telecommunications except in so far as such
powers have been, or may in future be conferred on or
delegated to the Department.
7. The Commission shall have power to frame its own rules and
procedures. The Commission shall meet at such time and
places as fixed by the Chairman.
8. The Telecom Commission shall take over all legal and statutory
authority vested with the Telecom Board."
1
12. The Rules of Business for the Telecom Commission were also framed in
1989. In terms of para 2 of the Rules of Business read with item 1 of Annexure
`A' appended thereto, all important matters of policy relating to
Telecommunications are required to be brought before the Telecom
Commission.
13. In 1997, Parliament enacted the Telecom Regulatory Authority of India
Act, 1997 (for short, `the 1997 Act') to provide for the establishment of TRAI.
By Act No.2 of 2000, the 1997 Act was amended and provision was made for
establishment of the Telecom Disputes Settlement and Appellate Tribunal
(TDSAT). Sections 11 and 13, which have bearing on the decision of these
petitions read as under:
"11. Functions of Authority. - (1) Notwithstanding anything contained
in the Indian Telegraph Act, 1885 (13 of 1885), the functions of the
Authority shall be to-
(a) to make recommendations, either suo motu or on a request from
the licensor, on the following matters, namely:-
(i) need and timing for introduction of new service provider;
(ii) terms and conditions of licence to a service provider;
(iii) revocation of licence for non- compliance of terms and
conditions of licence;
(iv) measures to facilitate competition and promote efficiency in the
operation of telecommunication services so as to facilitate
growth in such services;
(v) technological improvements in the services provided by the
service providers;
1
(vi) type of equipment to be used after inspection of equipment
used in the network;
(vii) measures for the development of telecommunication
technology and any other matter relatable to telecommunication
industry in general;
(viii) efficient management of available spectrum;
(b) discharge the following functions, namely:-
(i) ensure compliance of terms and conditions of licence;
(ii) (ii)notwithstanding anything contained in the terms and
conditions of the licence granted before the
commencement of the Telecom Regulatory Authority of
India (Amendment) Act, 2000, fix the terms and
conditions of inter-connectivity between the service
providers;
(iii) ensure technical compatibility and effective inter-
connection between different service providers;
(iv) regulate arrangement amongst service providers of
sharing their revenue derived from providing
telecommunication services;
(v) lay-down the standards of quality of service to be
provided by the service providers and ensure the quality
of service and conduct the periodical survey of such
service provided by the service providers so as to protect
interest of the consumers of telecommunication service;
(vi) lay-down and ensure the time period for providing local
and long distance circuits of telecommunication between
different service providers;
(vii) maintain register of interconnect agreements and of all
such other matters as may be provided in the regulations;
(viii) keep register maintained under clause (vii) open for
inspection to any member of public on payment of such
fee and compliance of such other requirement as may be
provided in the regulations;
1
(ix) ensure effective compliance of universal service
obligations;
(c) levy fees and other charges at such rates and in respect of
such services as may be determined by regulations;
(d) perform such other functions including such administrative
and financial functions as may be entrusted to it by the
Central Government or as may be necessary to carry out the
provisions of this Act:
Provided that the recommendations of the Authority specified in
clause (a) of this sub-section shall not be binding upon the Central
Government:
Provided further that the Central Government shall seek the
recommendations of the Authority in respect of matters specified in
sub-clauses (i) and (ii) of clause (a) of this sub-section in respect of
new licence to be issued to a service provider and the Authority shall
forward its recommendations within a period of sixty days from the
date on which that Government sought the recommendations:
Provided also that the Authority may request the Central Government
to furnish such information or documents as may be necessary for the
purpose of making recommendations under sub-clauses (i) and (ii) of
clause (a) of this subsection and that Government shall supply such
information within a period of seven days from receipt of such
request:
Provided also that the Central Government may issue a licence to a
service provider if no recommendations are received from the
Authority within the period specified in the second proviso or within
such period as may be mutually agreed upon between the Central
Government and the Authority:
Provided also that if the Central Government having considered that
recommendation of the Authority, comes to a prima facie conclusion
that such recommendation cannot be accepted or needs modifications,
it shall, refer the recommendation back to the Authority for its
1
reconsideration, and the Authority may within fifteen days from the
date of receipt of such reference, forward to the Central Government
its recommendation after considering the reference made by that
Government. After receipt of further recommendation if any, the
Central Government shall take a final decision.
(2) Notwithstanding anything contained in the Indian Telegraph Act,
1885 (13 of 1885), the Authority may, from time to time, by order,
notify in the Official Gazette the rates at which the telecommunication
services within India and outside India shall be provided under this
Act including the rates at which messages shall be transmitted to any
country outside India:
Provided that the Authority may notify different rates for different
persons or class of persons for similar telecommunication services and
where different rates are fixed as aforesaid the Authority shall record
the reasons therefor.
(3) While discharging its functions :under sub-section (1) or sub-
section (2) the Authority shall not act against the interest of the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality.
(4) The Authority shall ensure transparency while exercising its
powers and discharging its functions.
13. Power of Authority to issue directions. - The Authority may, for
the discharge of its functions under sub-section (1) of section 11, issue
such directions from time to time to the service providers, as it may
consider necessary:
Provided that no direction under sub-section (4) of section 12 or under
this section shall be issued except on the matters specified in clause
(b) of sub-section (1) of section 11."
14. After its establishment, TRAI made various recommendations either suo
motu or on the request of the licensor, i.e., the Central Government or the
1
Telegraph Authority. On a reference made by the Ministry of Communications
and Information Technology on four issues including the issues of appropriate
level of entry fee, basis of selection of new operators and entry of 4th cellular
operator, TRAI made its recommendations, which were communicated to
Secretary, DoT vide D.O. No. 250-14/2000-Fin (DF) (Vol. II) dated 23.6.2000.
Paragraphs 4.1 to 4.3, 4.5 to 4.6 and 4.11 to 4.15 of that letter are extracted
below:
"4. For the purposes of clarity each issue on which TRAI's
recommendation has been sought has been stated separately and
recommendations have been given therefor.
4.1(A) Appropriate level of entry fee, basis for selection of new
operators and entry of fourth operator
The issues under this head can be broken under three main
subheads. These are :
(i) Level of entry fee;
(ii) Basis for selection of new operation;
(iii) Entry of the fourth operator.
We take these issues sequentially.
4.2(1) Level of Entry Fee:-
New operators are to be licensed in the following vacant
circles/slots:
(a)Jammu & Kashmir - Andamans & Nicobar Islands;
(b) Assam and West Bengal;
(c) DOT/MTNL as the third operator.
(d)Fourth operator in circles where migration has been permitted.
4.3 DOT/MTNL wherever they come in as the third operator as
also the fourth operator to be introduced will be required to pay as
licence fee the same percentage share of their revenue as
1
recommended by TRAI for the existing CMSPs who are being
allowed to migrate to revenue sharing arrangement in accordance
with NTP 99. The fourth operator will also pay an entry fee which
will be fixed through a process of bidding.
4.5 (ii) Selection of new operators:
The TRAI recommends that all new operators barring DOT/MTNL
be selected through a competitive process. This is recommended to
be a multi stage bidding process preceded by a pre-qualification
round.
4.6 Pre-qualification
Prospective operators would be required to meet pre-determined
criteria in order to qualify to bid for the licence. Pre-qualifications
will mainly be on the following grounds :-
- Financial strength and experience as Telecom Service Provider
- Minimum roll out obligation
- Technical Plan
- Business Plan
- Payment terms and other commercial conditions
It is recommended that prospective bidders who meet the pre-
determined threshold as set out in the pre-qualification criteria be
short-listed for bidding for entry fee in the next stage. No
weightages need be attached to the pre-qualification criteria. The
criteria for pre-qualification could be developed on the following
lines:-
4.11 The Structure of the Bidding Process
Selection from amongst all those who pass the pre-qualification
round will be by a process of bidding. The bids will be carefully
structured so as to guard against the possible misuses of the
process such as preemptive over-bidding or cartelisation. For this
purpose, a bid structure involving "Multi Stage Informed
Ascending Bids" is recommended. It is also recommended that
such bids be invited for the entry fee for selection of operations
and issuing licenses to them. Although, as recommended earlier in
2
the case of NLDO, TRAI is primarily of the opinion that because
of its greater relevance, direct impact on operations and being
equitable, revenue sharing is a better basis on which to invite bids
for licenses, in the case of CMSPs this choice is not available
except in two vacant circles/slots. The 34 incumbent operators
have already been given licenses through a process of bidding and
it would not be correct to subject them to yet another process of
bidding, this time concerning revenue sharing. They have already
been asked to pay as license fee, albeit on a provisional basis a
fixed amount of the revenue share viz. 15%. It is, therefore,
recommended that a fixed percentage of revenue share be paid by
all operators as the license fee and this percentage be the same for
all the operators barring the exceptions specifically mentioned in
the paragraph 5.9 below.
4.12 While, the detailed bid structure can be prepared at the time
bids are being called and assistance/advise of experts may be taken
in doing so, based on the experience of such successful bids
elsewhere, the basic outlines of the proposed structure can be
given. Bids can be invited for more than one licence at a time. The
total number of rounds in which the bids will be finalised will be
pre-determined and all bidders should be eligible to bid for all
licenses on offer in each of the rounds. The licensor, may,
however, if it so desires, stipulate beforehand the total number of
licences that can be finally allotted to a single bidder. The TRAI's
recommendation in this regard is that the number of licences that
can go to a single bidder need not be restricted. This will favour
the serious and techno-financially strong bidders and will help
keep the bids at operationally feasible optimal levels.
4.13 After each stage of bidding, bids received will be made
public and all bidders (those lower than the highest bidder as well
as the highest bidder) will be permitted to raise their bids in the
subsequent rounds of bidding. The process will be deemed
complete only on the completion of the pre-determined number of
bid rounds at the end of which the highest bidder for each licence
will have the claim to the license in question. Licences will
become effective on payment of the amount of the winning bid for
the entry fee within a period specified in the tender document.
2
4.14 The same process of bidding will also enable selection of
operators where two slots in the same circle are vacant viz. J & K
and Andaman and Nicobar where no operators exist. In these
circles, two bidders may be selected and it is recommended in this
regard that while the second highest bidder in these circles may be
considered for the second slot available, he need not be asked to
match the bid of the highest bidder. It may be provided though that
if the difference between the first and the second highest bids is
substantial, say more than 25 %, fresh bids for the second slot will
be invited. Such an arrangement while being equitable will act as a
good incentive for attracting bids for these circles which have not
proved to be attractive in the past.
(III). Entry of the Fourth Operator:
4.15 DOT/MTNL, the incumbent in basic services, are to enter the
field of cellular mobile services as the third operator in terms of
NTP 99 with the existing availability of spectrum. TRAI, however,
has no information about the availability of spectrum either for the
third or the fourth operator. The financial analysis conducted by
the TRAI for the purpose of studying the revenue share which the
operators can part with as licence fee assumes entry of the third
operator in the sixth year of licence i.e. in the current year and of
another i.e. the fourth operator two years later in accordance with
NTP 99. The analysis reveals that even if the business in each of
these metropolitan areas and circles is required to produce a
reasonable IRR say 16-18 % and a decent return on the capital say
around 20%, it would still enable the operators to share upto about
25% of the Gross (adjusted) revenue as the licence fee. In the
circumstances, it would be reasonable to assume that on purely
economic grounds, in most circles there is even at present, a fair
case for the entry of the fourth operator. In this context, however,
more than the market, the determining factor has to be the
availability of a spectrum and its optimal utilisation. Moreover, it
is also a matter for careful consideration that even when additional
spectrum is released, whether it should be utilised to augment the
number of service providers or for improving the quality and
coverage of the already available services. In the GSM 900 band
the maximum frequency spectrum made available to the operators
in a large number of countries is a pair of 12.5 MHz. Against this
in India the circle operators have been given a pair of less than 5
2
MHz and the metro operators of less than 7 MHz. It is learnt that in
a number of metros and circles, no further expansion of services is
possible unless additional spectrum is made available to the
existing operators. Paucity of frequency spectrum is also adversely
affecting the quality of service in a number of service areas. In the
circumstances a fair balance between the two objectives of
increasing competition on the one hand and improving the quality,
coverage and price-efficiency of the service on the other will have
to be struck so that the larger objective of providing quality
services at affordable prices is not jeopardised. A sub-optimal cost
structure and quality of service may finally turn out to be
detrimental to the growth of tele-density notwithstanding a higher
number of service providers. Similar views were expressed also
by the BICP in their report on Cellular Mobile Services (para 20
page-V) of the report). Accordingly, TRAI is of the opinion that a
view can be taken in this matter only after getting a full report
from the DOT on the quantum of spectrum being made available
for the CMSPs, existing as well as the proposed new entrants and
its location i.e. whether it is going to be in the 900 MHz or in 1800
MHz bands."
(underlining is ours)
15. On 5.1.2001, the Government of India issued guidelines for issue of
licence for CMTS. These guidelines envisaged a detailed bidding process for
selection of the new service providers.
16. On 27.10.2003, TRAI made recommendations under Section 11(1)(a)(i),
(ii), (iv) and (vii) of the 1997 Act on Unified Licensing. TRAI referred to
international practises, NTP 1994 and NTP 1999 and growth of telephone
density - national objective and priority. Para 7.2 of those recommendations
read as under:
2
"7.2 The Guidelines would be notified by the licensor based on
TRAI recommendations to include nominal entry fee, USO, etc.
The charges for spectrum shall be determined separately. The
operator shall be required to approach the licensor mainly for
spectrum allocation. Since, spectrum is a scarce resource, it needs
to be regulated separately. Spectrum should be distributed using
such a mechanism that it is allocated optimally to the most
efficient user."
17. Paragraphs 7.15 to 7.19 of the 2003 recommendations contained various
alternatives for deciding the benchmark for the entry fee for Unified Access
Licensing Regime. In paragraph 7.30, TRAI laid emphasis on efficient
utilization of spectrum by all service providers and indicated that it would make
further recommendations on efficient utilization of spectrum, spectrum pricing,
availability and spectrum allocation procedure shortly, and the DoT may like to
issue spectrum related guidelines based on its recommendations.
18. In the meanwhile, a Group of Ministers was constituted on 10.9.2003
with the approval of the Prime Minister to consider the following matters:
i) To recommend how to ensure release of adequate spectrum needed for
the growth of the telecom sector;
ii) To recommend measures for ensuring adequate resources for the
realization of the NTP targets of rural telephony;
iii) To resolve issues relating to the enactment of the Convergence Bill;
iv) To chart the course to a Universal Licence;
2
v) To review adequacy of steps and enforcing limited mobility within
the SDCA for WLL(M) services of basic operators, and recommend
the future course of action;
vi) To appraise FDI limits in the telecom sector and give
recommendations thereon;
vii) To identify issues relating to mergers and acquisitions in the telecom
sector and recommend the way forward; and
viii) To consider issues relating to imposition of trade tax on telecom
services by the State Governments.
19. After considering the entire matter, the Group of Ministers made detailed
recommendations on 30.10.2003, the relevant portions of which are extracted
below:
"2.1 1
st
Term of Reference : to recommend how to ensure release of
adequate spectrum needed for the growth of the telecom sector.
2.1.1 The GOM was informed that the availability of adequate
spectrum in appropriate frequency bands, i.e. 1800 MHz in a
timely manner is crucial, for the growth of mobile telephone
services. The growth of mobile services and resultant
spectrum needs are mainly in metro, major and main cities
having population above 1 million. However, the frequency
bands of 1800 MHz are extensively used by Defence
services, thus severely limiting their availability for the
mobile telecom operators.
2.1.2 In the above context, GoM recommended the following:
(1) Adequate spectrum be made available for the unimpeded
growth of telecom services, modalities for which will be
jointly worked out by Wireless Planning & Coordination
(WPC) Wing of Department of Telecom and Defence
services. The Ministry of Defence would coordinate
release additional spectrum in a number of cities for
which requirements have been projected within a month.
2
(2) The Ministry of Finance will provide necessary
budgetary support to Ministry of Defence for
modernization of their existing equipment to facilitate
release of required spectrum. The actual fund
requirements including its phasing will be worked out
between the Ministry of Defence Ministry of Finance and
the Department of Telecom in a time bound manner.
(3) The Department of Telecom and Ministry of Finance
would discuss and finalise spectrum pricing formula
which will include incentive for efficient use of
spectrum as well as disincentive for sub-optimal
usages
(4) The allotment of additional spectrum be transparent
fair and equitable, avoiding monopolistic situation
regarding spectrum allotment usage
(5) The long term 15-20 years, spectrum requirements along
with time frames would also be worked out by
Department of Telecom.
(6) As per the directions of GoM, a Task Force has been
constituted under the chairmanship of Wireless Adviser
to the Govt. of India with representatives from
Department of Telecom, Ministry of Defence and
Ministry of Finance. The terms of reference of the Task
Force and the progress of its work so far are given in
Annexures II & III.(Page 17-18).
2.4 4
th
Term of Reference :- To chart the course to a Universal
Licence:
2.4.1 The GoM took note of the exercise that had already been
indicated by Telecom Regulatory Authority of India (TRAI),
in regard to Unified Licensing Regime in the Telecom
Sector Chairman, TRAI and Chairman HDFC were specially
invited made presentations before the GoM.
2
2.4.2 TRAI submitted its recommendations to the Government on
this matter on 27.10.2003. TRAI has recommended that the
present system of licensing in the Telecom Sector should be
replaced by Unified Licensing/Automatic Authorization
Regime. The Unified Licensing/Automatic Authorization
Regime has been recommended to be achieved in a two-
stage process with the Unified Access Regime for basic and
cellular services in the first phase to be implemented
immediately. This is to be followed by a process of
consultation to define the guidelines and rules for achieving
a fully Unified Licensing/Authorization Regime. TRAI has
recommended that it will enter into a consultation process so
that the replacement of the existing licensing regime by a
Unified Licensing Regime gets initiated within 6 months.
Broad rationale key recommendations and some key policy
issues that have been addressed by TRAI are listed in the
Annexure IV(pages 19-21).
2.4.3 The salient points of TRAI recommendations in regard to
the Unified Access Licensing (basic and cellular mobile),
are as under:
(i) Unification of licenses to be done in two stages
(a) Unified access regime for basic and
cellular services in the first phase
immediately
(b) Unified authorization regime
encompassing all telecom services in the
second phase.
(ii) Fee paid by fourth cellular operator to be
benchmark for migration of basic players to the
new access regime.
(iii) Cellular operators not to pay any entry fee for
migration to the unified access regime while basic
operators to pay the differences between fourth
2
cellular operators licence fee and the BSO fee
already paid by them
(iv) Reliance Infocom required to pay Rs. 1096 crores
for migration in addition to penalty of Rs. 485
crores for offering cellular type services.
(v) Process of migration to the new regime to be
voluntary.
(vi) The existing BSOs after migration to Unified
Access Licensing Regime may offer full mobility
however WLL(M) operators after migration will
be required to offer limited mobility service to
such customers who so desire.
(vii) No additional fee to be paid for any of the circles
where there is no fourth cellular operator.
2.4.4 Enhancing the scope of current Telecom Policy (NTF-99) to
provide category of Unified License and Unified Access
Service License
NTP-99 recognises access service providers as a distinct class. For
the purpose of licensing, this has been sub-divided into cellular
fixed and cable service providers. NTP-99 also states that
convergence of both markets and technologies is a reality that is
forcing realignment of the industry. This convergence now allows
operators to use their facilities to deliver some services reserved
for other operators necessitating a re-look at NTP-94 policy
framework.
For bringing into effect the regime of Unified Access Service for
basic and cellular service licenses and Unified Licensing
comprising all telecom services, it would be necessary to enhance
the scope of NTP-99 to include these as distinct categories of
licenses as pet of NTP-99.
2.4.5 TRAI recommendations on entry fee of WLL(M) based on
TDSAT judgement:
2
TRAI has also submitted its recommendations in regard to
additional entry fee payable by basic service operators for
providing WLL(M) services on which Government had sought its
recommendations based on the judgment of TDSAT dated 8/8/03
in the WLL(M) case. TRAI has given detailed reasoning on this
matter and has recommended additional entry fee for such of the
Basic Service Operators who provide WLL(M) service. The
salient features are in Annexure-V (page 22).
2.4.6 Based on the above the GoM has recommended the
following course of action
(i) The scope of NTP-99 may be enhanced to provide
for licensing of Unified Access Service for basic
and cellular license services and Unified Licensing
comprising all telecom services. Department of
Telecommunications may be authorized to issue
necessary addendum to NTP-99 to this effect.
(ii) The recommendations of TRAI with regard to
implementation of the Unified Access Licensing
Regime for basic and cellular services may be
accepted.
DoT may be authorized to finalise the details of
implementation with the approval of the Minister of
Communication & IT in this regard including the
calculation of the entry fee depending upon the date of
payment based on the principles given by TRAI in its
recommendations.
(iii) The recommendations of TRAI in this regard to
the course of action to be adopted subsequently in
regard to the implementation of the fully Unified
License Authorisation Regime may be approved.
DoT may be authorized to finalise the details of
implementation with the approval of the Minister of
2
Communications & IT on receipt of recommendations of
TRAI in this behalf.
(iv) The recommendations of TRAI in regard to
additional entry fee payable by basic service
operators for providing WLL(M) service on which
Government sought its recommendations based on
the judgment of TDSAT dated 8.8.2003 in the
WLL(M) case may be accepted.
(v) While there appears to be no case for giving
any compensation package to them, because of the
perception that the finances of the cellular
operators are strained and because of the effect
these may have on financial institutions. Finance
Ministry would address the difficulties of the
cellular operators, if any, separately and
appropriately.
(vi) If new services are introduced as a result of
technological advancements which require
additional spectrum over and above the spectrum
already allotted/contracted allocation of such
spectrum will be considered on payment of
additional fee or charges, these will be determined
as per guidelines to be evolved in consultation with
TRAI."
(emphasis supplied)
20. The recommendations of the Group of Ministers were accepted by the
Council of Ministers on 31.10.2003.
21. Thereafter, DoT issued Office Memorandum dated 11.11.2003 and made
some additions to NTP 1999. The same day, DoT issued new guidelines for
UAS Licences. Two salient features of these guidelines were that the existing
3
operators would have an option to continue under the existing licensing regime
or to migrate to new UAS Licence and the licence fee, service area, rollout
obligations and performance bank guarantee under UAS Licence was to be the
same as the 4th CMTS.
22. Vide letter dated 14.11.2003, the Chairman, TRAI, on his own, made
recommendation regarding entry fee to be charged from the new UAS
Licensees. On 24.11.2003, the Minister of C&IT accepted the recommendation
that entry fee for new UAS Licensees will be the entry fee of 4th cellular
operator and where there is no 4th cellular operator, it will be the entry fee fixed
by the Government for the basic operator. A decision was also taken by him in
F. No.20-231/2003-BS-III (LOIs for UASL) at 4/N that,
"As regards the point raised about the grant of new licences on
first-come-first-served basis, the announced guidelines have made
it open for new licences to be issued on continuous basis at any
time. However, the spectrum is to be allotted subject to
availability. This in effect would imply that an applicant who
comes first will be granted the spectrum first so it will result in
grant of licence on first-come-first-served basis."
Although, in terms of the decision taken by the Minister of C&IT, the
applications for grant of UAS Licence could be made on continuous basis and
were required to be processed within 30 days, some applications were made in
2004 and 2006 and the same were kept pending.
3
23. On 13.5.2005, TRAI made comprehensive recommendations on various
issues relating to spectrum policy, i.e., efficient utilisation of spectrum,
spectrum allocation, spectrum pricing, spectrum charging and allocation for
other terrestrial wireless links. These recommendations were not placed before
Telecom Commission. Though, the then Secretary, DoT submitted the file to
the then Minister of C&IT on 16.8.2005 for information with a note that he will
go through the recommendations and put up the file to the Minister for policy
decision, the file was returned on 12.9.2006, i.e., after one year and no further
action appears to have been taken.
24. In the meanwhile, on 23.2.2006, the Prime Minister approved constitution
of a Group of Ministers, consisting of the Ministers of Defence, Home Affairs,
Finance, Parliamentary Affairs, Information and Broadcasting and C&IT, to
look into issues relating to vacation of spectrum. Deputy Chairman, Planning
Commission was special invitee. The Terms of Reference of the Group of
Ministers, among other things, included suggesting a Spectrum Pricing Policy
and examining the possibility of creation of a spectrum relocation fund. After
five days, the Minister C&IT wrote letter dated 28.2.2006 to the Prime Minister
that the Terms of Reference of the GoM were much wider than what was
3
discussed in his meeting with the Prime Minister. He appears to have protested
that the Terms of Reference would impinge upon the work of his Ministry and
requested that the Terms of Reference be modified in accordance with the draft
enclosed with the letter. Interestingly, the Minister's draft did not include the
important issue relating to Spectrum Pricing. Thereafter, vide letter 7.12.2006,
the Cabinet Secretary conveyed the Prime Minister's approval to the
modification of the Terms of Reference. The revised Terms of Reference did
not include the issue relating to Spectrum Pricing.
25. On 14.12.2005, the DoT issued revised guidelines for UAS Licence.
Paragraph 11 of the new guidelines reads as under:
"The licences shall be issued without any restriction on the number
of entrants for provision of unified access services in a Service
Area."
In terms of paragraph 14 of the guidelines, the licensee was required to pay
annual licence fee at 10/8/6% of Adjusted Gross Revenue (AGR) for category
A/B/C service areas, respectively excluding spectrum charges. This was in
addition to the non-refundable entry fee. In terms of paragraph 19 the licensee
was required to pay spectrum charges in addition to the licence fee on revenue
share basis. However, while calculating AGR for limited purpose of levying
spectrum charges, revenue from wireless subscribers was not to be taken into
account.
3
26. After one year and about six months, the DoT vide its letter dated
13.4.2007, requested TRAI to furnish its recommendations under Section 11(1)
(a) of the 1997 Act on the issues of limiting the number of access providers in
each service area and review of the terms and conditions in the access provider
licence mentioned in the letter. Paragraph 2 of that letter is extracted below:
"2. Fast changes are happening in the Telecommunication sector. In
order to ensure that the policies keep pace with the
changes/developments in the Telecommunication sector, the
government is contemplating to review the following terms and
conditions in the Access provider (CMTS/UAS/Basic) license
i. Substantial equity holding by a company / legal person in more
than one licensee company in the same service area (clause 1.4
of UASL agreement).
ii. Transfer of licences (clause 6 of the UASL)
iii. Guidelines dated 21.02.2004 on Mergers and Acquisitions.
TRAI in its recommendations dated 30.1.2004 had opined that
the guidelines may be reviewed after one year.
iv. Permit service providers to, offer access services using
combination of technologies (CDMA, GSM and/or any other)
under the same license.
v. Roll-out obligations (Clause 34 of UASL).
vi. Requirement to publish printed telephone directory."
27. In furtherance of the aforesaid communication, TRAI made
recommendations dated 28.8.2007. The main emphasis of these
recommendations was the principles of fair competition, no restriction on the
number of access service providers in any service area, need for spectrum
management, measures to increase spectrum efficiency, allocation of spectrum
3
and compliance of roll out obligations by the service providers. It was also
recommended that in future all spectrum excluding the spectrum in 800, 900
and 1800 MHz bands in 2G services should be auctioned. In paragraphs 2.33,
2.39, 2.41, 2.54 and 2.63, TRAI repeatedly mentioned about scarce availability
of spectrum. Paragraphs 2.37, 2.40, 2.69 and 2.73 to 2.79 of the TRAI's
recommendations dated 28.8.2007 are extracted below:
"2.37 Accordingly, the Authority recommends that no cap be
placed on the number of access service providers in any
service area.
2.40 The present spectrum allocation criteria, pricing
methodology and the management system suffer from a
number of deficiencies and therefore the Authority
recommends that this whole issue is not to be dealt with in
piecemeal but should be taken up as a long term policy
issue. There is an urgent need to address the issues linked
with spectrum efficiency and its management.
2.69 The Entry fee for acquiring a UASL license enables the
licensee to become eligible for spectrum allocation in certain
specified bands without any additional fee for acquisition of
spectrum which means that allocation of spectrum follows
the grant of license subject however to availability of
spectrum. There is only one direct cost to the operator for
spectrum i.e. spectrum charge in the form of royalty.
2.73 The allocation of spectrum is after the payment of entry
fee and grant of license. The entry fee as it exists
today is, in fact, a result of the price discovered
through a markets based mechanism applicable for the
grant of license to the 4th cellular operator. In today's
dynamism and unprecedented growth of telecom
sector, the entry fee determined then is also not the
realistic price for obtaining a license. Perhaps, it needs
3
to be reassessed through a market mechanism. On the
other hand spectrum usage charge is in the form of a
royalty which is linked to the revenue earned by the
operators and to that extent it captures the economic
value of the spectrum that is used. Some stakeholders
have viewed the charges/fee as a hybrid model of
extracting economic rent for the acquisition and also
meet the criterion of efficiency in the utilization of this
scarce resource. The Authority in the context of 800,
900 and 1800 MHz is conscious of the legacy i.e.
prevailing practice and the overriding consideration of
level playing field. Though the dual charge in present
form does not reflect the present value of spectrum it
needed to be continued for treating already specified
bands for 2G services i.e. 800, 900 and 1800 MHz. It is
in this background that the Authority is not
recommending the standard options pricing of
spectrum, however, it has elsewhere in the
recommendation made a strong case for adopting
auction procedure in the allocation of all other
spectrum bands except 800, 900 and 1800 MHz.
2.74 Some of the existing service providers have already
been allocated spectrum beyond 6.2 MHz in GSM and
5 MHz in CDMA as specified in the license agreements
without charging any extra one time spectrum charges.
The maximum spectrum allocated to a service provider
is 10 MHz so far. However, the spectrum usage charge
is being increased with increased allocation of
spectrum. The details are available at Table 8.
2.75 The Authority has noted that the allocation beyond 6 2
MHz for GSM and 5 MHz for CDMA at enhanced
spectrum usage charge has already been
implemented. Different licensees are at different levels
of operations in terms of the quantum of spectrum.
Imposition of additional acquisition fee for the quantum
beyond these thresholds may not be legally feasible in
view of the fact that higher levels of usage charges
have been agreed to and are being collected by the
3
Government. Further, the Authority is conscious of the
fact that further penetration of wireless services is to
happen in semi-urban and rural areas where
affordability of services to the common man is the key
to further expansion.
2.76 However, the Authority is of the view that the approach
needs to be different for allocating and pricing spectrum
beyond 10 MHz in these bands i.e. 800, 900 and 1800
MHz. In this matter, the Authority is guided by the need to
ensure sustainable competition in the market keeping in
view the fact that there are new entrants whose
subscriber acquisition costs will be far higher than the
incumbent wireless operators. Further, the technological
progress enables the operators to adopt a number of
technological solutions towards improving the efficiency of
the radio spectrum assigned to them. A cost- benefit
analysis of allocating additional spectrum beyond 10 MHz
to existing wireless operators and the cost of deploying
additional CAPEX towards technical improvements in the
networks would show that there is either a need to place
a cap on the maximum allocable spectrum at 10 MHz or
to impose framework of pricing through additional
acquisition fee beyond 10 MHz. The Authority feels it
appropriate to go in for additional acquisition fee of
spectrum instead of placing a cap on the amount of
spectrum that can be allocated to any wireless operator.
In any case, the Authority is recommending a far stricter
norm of subscriber base for allocation of additional
spectrum beyond the initial allotment of spectrum. The
additional acquisition fee beyond 10 MHz could be
decided either administratively or through an auction
method from amongst the eligible wireless service
providers. In this matter, the Authority has taken note of
submissions of a number of stakeholders who have cited
evidences of the fulfillment of the quality of service
benchmarks of the existing wireless operators at 10 MHz
and even below in almost all the licensed service areas.
Such an approach would also be consistent with the
Recommendation of the Authority in keeping the door
3
open for new entrant without putting a limit on the number
of access service providers.
2.77 The Authority in its recommendation on "Allocation and
pricing of spectrum for 3G and broadband wireless
access services" had recommended certain reserve price
for 5 MHz of spectrum in different service areas. The
recommended price are as below:
Service Areas Price (Rs.in million) for 2X5
MHz
Mumbai, Delhi and Category A 800
Chennai, Kolkatta and Category B 400
Category C 150
The Authority recommends that any licensee who seeks to get
additional spectrum beyond 10 MHz in the existing 2G bands i.e.
800,900 and 1800 MHz after reaching the specified subscriber
numbers shall have to pay a onetime spectrum charge at the above
mentioned rate on prorata basis for allotment of each MHz or part
thereof of spectrum beyond 10 MHz. For one MHz allotment in
Mumbai, Delhi and Category A service areas, the service provider
will have to pay Rs. 160 million as one time spectrum acquisition
charge.
2.78 As far as a new entrant is concerned, the question arises
whether there is any need for change in the pricing
methodology for allocation of spectrum in the 800, 900 and
1800 MHz bands. Keeping in view the objective of growth,
affordability, penetration of wireless services in semi-urban
and rural areas, the Authority is not in favour of changing the
spectrum fee regime for a new entrant. Opportunity for equal
competition has always been one of the prime principles of
the Authority in suggesting a regulatory framework in
telecom services. Any differential treatment to a new entrant
vis-a-vis incumbents in the wireless sector will go against
the principle of level playing field. This is specific and
restricted to 2G bands only i.e. 800, 900 and 1800 MHz. This
approach assumes more significance particularly in the
3
context where subscriber acquisition cost for a new entrant is
likely to be much higher than for the incumbent wireless
operators.
2.79 In the case of spectrum in bands other than 800, 900 and
1800 MHz i.e. bands that are yet to be allocated, the
Authority examined various possible approaches for pricing
and has come to the conclusion that it would be appropriate
in future for a market based price discovery systems. In
response to the consultation paper, a number of stakeholders
have also strongly recommended that the allocation of
spectrum should be immediately de-linked from the license
and the future allocation should be based on auction.
The Authority in its recommendation on "Allocation and
pricing of spectrum for 3G and broadband wireless access
services" has also favored auction methodology for
allocation of spectrum for 3G and BWA services. It is
therefore recommended that in future all spectrum excluding
the spectrum in 800, 900 and 1800 bands should be auctioned
s
o as to ensure efficient utilization of this scarce resource. I
n
the 2G bands (800 MHz/900 MHz/1800 MHz), the allocation
through auction may not be possible as the service providers
were allocated spectrum at different times of their license and
the amount of spectrum with them varies from 2X4.4 MHz to
2X10 MHz for GSM technology and 2X2.5 MHz to 2X5
MHz in CDMA technology. Therefore, to decide the cut off
after which the spectrum is auctioned will be difficult and
might raise the issue of level playing field."
(underlining is ours)
28. The aforesaid recommendations of TRAI were first considered by an
Internal Committee of the DoT constituted vide letter dated 21.9.2007 under the
Chairmanship of Member, Telecommunication. The report of the Committee
was placed before the Telecom Commission on 10.10.2007. However, the four
3
non-permanent members, i.e., Finance Secretary; Secretary, Department of
Industrial Policy and Promotion; Secretary, Department of Information
Technology and Secretary, Planning Commission were not even informed about
the meeting. In this meeting of the Telecom Commission, which was attended
by the officials of the DoT only, the report of the Internal Committee was
approved. On 17.10.2007, the Minister of C&IT accepted the recommendations
of the Telecom Commission and thereby approved the recommendations made
by TRAI. However, neither the Internal Committee of the DoT and the
Telecom Commission nor the Minister of C&IT took any action in terms of
paragraph 2.40 of the recommendations wherein it was emphasised that the
existing spectrum allocation criteria, pricing methodology and the management
system suffer from a number of deficiencies and the whole issue should be
addressed keeping in view issues linked with spectrum efficiency and its
management. The DoT also did not get in touch with the Ministry of Finance to
discuss and finalise the spectrum pricing formula which had to include
incentive for efficient use of spectrum as well as disincentive for sub-optimal
usage in terms of the Cabinet decision of 2003.
29. In the meanwhile, on 24.9.2007, Shri A.K. Srivastava, DDG (AS), DoT
prepared a note mentioning therein that as on that date, 167 applications had
been received from 12 companies for 22 service areas and opined that it may be
4
difficult to handle such a large number of applications at any point of time. He
suggested that 10.10.2007 may be announced as the cut-off date for receipt of
new UAS Licence applications. Shri A. Raja who was, at the relevant time,
Minister of C&IT did not agree with the suggestion and ordered that 1.10.2007
be fixed as the cut-off date for receipt of applications for new UAS Licence.
Accordingly, press note dated 24.9.2007 was issued by the DoT stating that no
new application for UAS Licence will be accepted after 1.10.2007.
30. It is borne out from the record that Vodafone Essar Spacetel Ltd.
(respondent No.12) had made an application for UAS Licence in 2004 and 3
others, namely, Idea Cellular Ltd. (respondent No.8), Tata Teleservices Ltd.
(respondent No.9) and M/s. Aircel Ltd. (respondent No.11) had made similar
applications in 2006. However, the same were not disposed of by the DoT and
they were included in the figure of 167. Between 24.9.2007 and 1.10.2007,
over 300 applications were received for grant of UAS Licences. Member
(Technology), Telecom Commission and Ex-officio Secretary to Government
of India sent a letter dated 26.10.2007 to Secretary, Department of Legal
Affairs, Ministry of Law and Justice seeking the opinion of the Attorney
General of India/Solicitor General of India on the issue of the mechanism to
deal with what he termed as an unprecedented situation created due to receipt of
large number of applications for grant of UAS Licence. The statement of case
4
accompanying the letter of Member (Technology) contained as many as 14
paragraphs. Paragraph 11 outlined the following four alternatives:
(I) The applications may be processed on first-come-first-served basis in
chronological order of receipt of applications in each service area as per
existing procedure. LoI may be issued simultaneously to applicants (the
numbers will vary based on availability of spectrum to be ascertained from
WPC Wing) who fulfil the eligibility conditions of the existing UASL
Guidelines and are senior most in the queue. The time limit for compliance
should be 7 days as per the existing provision of LoI and 15 days for
submission of PBG, FBG, entry fee, etc. as per the existing procedure.
However, those who fulfil the conditions of LoI within stipulated time, their
seniority of license/spectrum will be on the basis of their application date. The
compliance of eligibility conditions as on the date of issue of LoI may be
accepted. No relaxation of this time limit will be given and LoI shall stand
terminated after the stipulated time period (however, the applicant may have the
right to apply for new UAS Licence again as and when the window for
submission of new UAS Licence is opened again). Subsequent applications may
be considered for issue of LoI if the spectrum is available.
4
(II) LoIs to all those who applied by 25.9.2007 (date on which the cut-off date
for receipt of applications were made public through press) may be issued in
each service area as it is expected that only serious players will deposit the
entry fee and seniority for license/spectrum be based on (i) the date of
application or (ii) the date/time of fulfilment of all LoI conditions.
(III) DoT may issue LoIs to all eligible applications simultaneously received up
to cut-off date. Since LoIs will clearly stipulate that spectrum allocation is
subject to availability and is not guaranteed, the LoI holders are supposed to
pay the entry fee if their business case permits them top wait for spectrum
allocation subject to availability an initial roll out using wire line technology.
(IV) Any other better approach which may be legally tenable and sustainable
for issue of new licences.
Paragraph 13 of the statement of case is extracted below:
"Issue of LoIs to M/s. TATA and others for usage of Dual
Technology spectrum based on their applications received after
18.10.2007. Whether
(i) To treat their request prior to existing applicants
or
(ii) To treat their request after processing all 575 applications."
4
31. The Law Secretary placed the papers before the Minister of Law and
Justice on 1.11.2007, who recorded the following note:
"I agree. In view of the importance of the case and various options
indicated in the statement of the case, it is necessary that whole
issue is first considered by an empowered Group of Ministers and
in that process legal opinion of Attorney General can be obtained."
32. When the note of the Law Minister was placed before the Minister of
C&IT, he recorded the following note on 2.11.2007 - "Discuss please". On the
same day, i.e., 2.11.2007 the Minister of C&IT did two things. He approved the
note prepared by Director (AS-1) containing the following issues:
(i) Issuing of LoIs to new applicants as per the existing policy,
(ii) Number of LoIs to be issued in each circle,
(iii) Approval of draft LoI,
(iv) Considering application of TATAs for dual technology after the
decision of TDSAT on dual technology, and
(v) Authorising Shri R.K. Gupta, ADG (AS-1) for signing the LoIs on
behalf of President of India.
33. While approving the note, the Minister of C&IT on his own recorded the
following - "LoI may be issued to the applicants received upto 25th Sept. 2007".
Simultaneously, he sent D.O. No.20/100/2007-AS.I dated 2.11.2007 to the
Prime Minister and criticised the suggestion made by the Law Minister by
describing it as totally out of context. He also gave an indication of what was to
4
come in the future by mentioning that the DoT has decided to continue with the
existing policy of first-come-first-served for processing of applications received
up to 25.9.2007 and the procedure for processing the remaining applications
will be decided at a later date, if any spectrum is left available after processing
the applications received up to 25.9.2007. Paragraphs 3 and 4 of the letter of
the Minister of C&IT are extracted below:
"3. The Department wanted to examine the possibility of any
other procedure in addition to the current procedure of allotment of
Licences to process the huge number of applications. A few
alternative procedures as debated in the Department and also
opined by few legal experts were suggested by the Department of
Telecom to Ministry of Law & Justice to examine its legal
tenability to avoid future legal complications, if any. Ministry of
Law and Justice, instead of examining the legal tenability of these
alternative procedures, suggested referring the matter to
empowered Group of Ministers. Since, generally new major policy
decisions of a; Department or inter-departmental issues are referred
to GOM, and, needless to say that the present issue relates to
procedures, the suggestion of Law Ministry is totally out of
context.
4. Now, the Department has decided to continue with the
existing policy (first-come-first-served) for processing of
applications received up to 25th September 2007, i. e. the date
when the news-item on announcement of cut-off date appeared in
the newspapers. The procedure for processing the remaining
applications will be decided at a later date, if any spectrum is left
available after processing the applications received up to 25th
September 2007.
4. As the Department is not deviating from the existing
procedure, I hope this will satisfy the Industry."
4
34. In the meanwhile, the Prime Minister who had received representations
from telecom sector companies and had read reports appearing in a section of
media sent letter dated 2.11.2007 to the Minister of C&IT and suggested that a
fair and transparent method should be adopted for grant of fresh licences. That
letter reads as under:
"Prime Minister
New Delhi
2 November, 2007
Dear Shri Raja,
A number of issues relating to allocation of spectrum have
been raised by telecom sector companies as well as in sections of
the media. Broadly, the issues relate to enhancement of subscriber
linked spectrum allocation criteria, permission to CDMA service
providers to also provide services on the GSM standard and be
eligible for spectrum in the GSM service band, and the processing
of a large number of applications received for fresh licenses
against the backdrop of inadequate spectrum to cater to overall
demand. Besides these, there are some other issues recommended
by TRAI that require early decision. The key issues are
summarized in the annexed note.
I would request you to give urgent consideration to the
issues being raised with a view to ensuring fairness and
transparency and let me know of the position before you take
any further action in this regard.
With regards,
Yours sincerely,
Sd/-
(Manmohan Singh)
Shri A. Raja
Minister of Communications and IT
4
New Delhi.
Annexure
1. Enhancement of subscriber linked spectrum allocation
criteria
In August 2007, the TRAI has recommended interim enhancement
of subscriber linked spectrum allocation criteria. Service providers
have objected to these recommendations, alleging errors in
estimation / assumptions as well as due procedure not having been
followed by the TRAI while arriving at the recommendations.
2. Permission to CDMA service providers to also provide
services on the GSM standard and be eligible for spectrum
in the GSM service band
Based on media reports, it is understood that the DoT has allowed
`cross technology' provision of services by CDMA service
providers and three such companies have already paid the license
fee. With the deposit of the fee, they would be eligible for GSM
spectrum, for which old incumbent operators have been waiting
since last several years. The Cellular Operators Association of
India (COAI), being the association of GSM service providers, has
represented against this. It is understood that the COAI has also
approached the TDSAT against this.
3. Processing of a large number of applications received for
fresh licenses against the backdrop of inadequate spectrum
to cater to overall demand
The DoT has received a large number of applications for new
licenses in various telecom circles. Since spectrum is very limited,
even in the next several years all these licensees may never be able
to get spectrum. The Telecom Policy that had been approved by
the Union Cabinet in 1999 specifically stated that new licenses
would be given subject to availability of spectrum.
4. In order that spectrum use efficiency gets directly linked
with correct pricing of spectrum, consider (i)
4
introduction of a transparent methodology of auction,
wherever legally and technically feasible, and (ii)
revision of entry fee, which is currently benchmarked on
old spectrum auction figures
5. Early decision on issues like rural telephony, infrastructure
sharing, 3G, Broadband, Number Portability and Broadband
Wireless Access, on which the TRAI has already given
recommendations."
(emphasis supplied)
35. The Minister of C&IT did not bother to consider the suggestion made by
the Prime Minister, which was consistent with the Constitutional principle of
equality, that keeping in view the inadequate availability of spectrum, fairness
and transparency should be maintained in the allocation of spectrum, and within
few hours of the receipt of the letter from the Prime Minister, he sent a reply
wherein he brushed aside the suggestion made by the Prime Minister by saying
that it will be unfair, discriminatory, arbitrary and capricious to auction the
spectrum to new applicants as it will not give them a level playing field. The
relevant portions of paragraph 3 of the Minister's letter are extracted below:
"3. Processing of a large number of applications received for
fresh licenses against the backdrop of inadequate spectrum
to cater to overall demand
The issue of auction of spectrum was considered by the TRAI and
the Telecom Commission and was not recommended as the
existing licence holders who are already having spectrum upto 10
MHz per Circle have got it without any spectrum charge. It will be
unfair, discriminatory, arbitrary and capricious to auction the
4
spectrum to new applicants as it will not give them level playing
field.
I would like to bring it to your notice that DoT has earmarked
totally 800 MHz in 900 MHz and 1800 MHz bands for 2G mobile
services. Out of this, so for a maximum of about 35 to 40 MHz per
Circle has been allotted to different operators and being used by
them. The remaining 60 to 65 MHz, including spectrum likely to
be vacated by Defence Services, is still available for 2G services.
Therefore, there is enough scope for allotment of spectrum to few
new operators even after meeting the requirements of existing
operators and licensees. An increase in number of operators will
certainly bring real competition which will lead to better services
and increased teledensity at lower tariff. Waiting for spectrum for
long after getting licence is not unknown to the Industry and even
at present Aircel, Vodafone, Idea and Dishnet are waiting for
initial spectrum in some Circles since December 2006."
36. On 20.11.2007, the Secretary, DoT had made a presentation on the
spectrum policy to the Cabinet Secretary. The Finance Secretary, who appears
to have witnessed the presentation, dispatched letter dated 22.11.2007 to the
Secretary, DoT and expressed his doubt as to how the rate of Rs.1600 crores
determined in 2001, could be applied without any indexation for a licence to be
given in 2007. He also emphasized that in view of the financial implications,
the Ministry of Finance should have been consulted before the matter was
finalised at the level of the DoT. Secretary, DoT promptly replied to the
Finance Secretary by sending letter dated 29.11.2007 in which he mentioned
that as per the Cabinet decision dated 31.10.2003, the DoT had been authorised
4
to finalise the details of implementation of the recommendations of TRAI and
in its recommendations dated 28.8.2007, TRAI had not suggested any change in
the entry fee/licence fee.
37. In the context of letter dated 22.11.2007 sent by the Finance Secretary,
Member (Finance), DoT submitted note dated 30.11.2007 suggesting that the
issue of revision of rates should be examined in depth before any final decision
is taken in the matter. When the note was placed before the Minister, he
observed that the matter of entry fee has been deliberated in the department
several times in light of various guidelines and the TRAI recommendations and
accordingly decision was taken not to revise the entry fee and that the
Secretary, DoT had also replied to the Finance Secretary's letter on the above
lines.
38. Although, the record produced before this Court does not show as to
when the policy of first-come-first-served was distorted by the Minister of
C&IT, in an apparent bid to show that he had secured the Prime Minister's
approval to this act of his, the Minister C&IT sent letter dated 26.12.2007 to the
Prime Minister, paragraphs 1 and 2 of which are extracted below:
"1. Issue of Letter of Intent (LOI): DOT follows a policy of
First-cum-First Served for granting LOI to the applicants for UAS
licence, which means, an application received first
will be processed first and if found eligible will be granted LOI.
5
2. Issue of Licence: The First-cum-First Served policy is also
applicable for grant of licence on compliance of LOI conditions.
Therefore, any applicant who complies with the conditions of LOI
first will be granted UAS licence first. This issue never arose in the
past as at one point of time only one application was processed and
LOI was granted and enough time was given to him for
compliance of conditions of LOI. However, since the Government
has adopted a policy of "No Cap" on number of UAS Licence, a
large number of LOI's are proposed to be issued simultaneously.
In these circumstances, an applicant who fulfils the conditions of
LOI first will be granted licence first, although several applicants
will be issued LOI simultaneously. The same has been concurred
by the Solicitor General of India during the discussions."
(underlining is ours)
39. After 12 days, DDG (AS), DoT prepared a note incorporating therein the
changed first-come-first-served policy to which reference had been made by the
Minister of C&IT in letter dated 26.12.2007 sent to the Prime Minister. On the
same day the Minister of C&IT approved the change.
40. The meeting of the full Telecom Commission, which was scheduled to be
held on 9.1.2008 to consider two important issues i.e., performance of telecom
sector and pricing of spectrum was postponed to 15.1.2008.
41. On 10.1.2008 i.e., after three days of postponement of the meeting of the
Telecom Commission, a press release was issued by the DoT under the
signature of Shri A.K. Srivastava, DDG (AS), DoT. The same reads as under:
5
"In the light of Unified Access Services Licence (UASL)
guidelines issued on 14th December 2005 by the department
regarding number of Licenses in a Service Area, a reference was
made to TRAI on 13-4-2007. The TRAI on 28-08-2007
recommended that No cap be placed on the number of access
service providers in any service area. The government accepted
this recommendation of TRAI. Hon'ble Prime Minister also
emphasized on increased competition while inaugurating India
Telecom 2007. Accordingly, DOT has decided to issue LOI to all
the eligible applicants on the date of application who applied up-to
25-09-2007.
UAS license authorises licencee to rollout telecom access services
using any digital technology which includes wire-line and/or
wireless (GSM and/or CDMA) services. They can also provide
Internet Telephony, Internet Services and Broadband services.
UAS licence in broader terms is an umbrella licence and does not
automatically authorize UAS licensees usage of spectrum to rollout
Mobile (GSM and/or CDMA) services. For this, UAS licencee has
to obtain another licence, i.e. Wireless Operating Licence which is
granted on first-come-first-served basis subject to availability of
spectrum in particular service area.
DOT has been implementing a policy of First-cum-First Served for
grant of UAS licences under which initially an application which is
received first will be processed first and thereafter if found eligible
will be granted LOI and then who so ever complied with the
conditions of LOI first will be granted UAS licence.
--------------
Department of Telecom
(AS Cell)
10-01-2008"
(underlining is ours)
42. On the same day, another press release was issued asking all the
applicants to assemble at the departmental headquarters within 45 minutes to
collect the response(s) of the DoT. They were also asked to submit compliance
5
of the terms of LoIs within the prescribed period. The second press release is
also reproduced below:
"Department of Telecommunications
Press Release
D
ate : 10 th
J
anuary 2008
Sub : UASL applicants to depute their authorised representative to
collect responses of DOT on 10.1.2008.
The applicant companies who have submitted applications to
DOT for grant of UAS licences in various service areas on or
before 25.9.2007 are requested to depute their Authorised
signatory/Company Secretary/ authorised representative with
authority letter to collect response(s) of DOT. They are requested
to bring the company's rubber stamp for receiving these
documents to collect letters from DOT in response to their UASL
applications. Only one representative of the Company/group
Company will be allowed. Similarly, the companies who have
applied for usage of dual technology spectrum are also requested to
collect the DOT's response.
All above are requested to assemble at 3:30 pm on
10.1.2008 at Committee Room, 2nd Floor, Sanchar Bhawan, New
Delhi. The companies which fail to report before 4:30 P.M. on
10.1.2008, the responses of DOT will be dispatched by post.
All eligible LOI holders for UASL may submit
compliance to DOT to the terms of LOIs within the prescribed
period during the office hours i.e. 9:00 A.M. to 5:30 P.M. on
working days.
File No.20-100/2007-AS-I
Dated 10.1.2008
(A.K. Srivastava)
DDG(AS)
5
Dept. of Telecom
DDG(C&A): The above Press Release may kindly be uploaded on
DOT website immediately."
43. All the applicants including those who were not even eligible for UAS
Licence collected their LoIs on 10.1.2008. The acceptance of 120 applications
and compliance with the terms and conditions of the LoIs for 78 applications
was also received on the same day.
44. Soon after obtaining the LoIs, 3 of the successful applicants offloaded
their stakes for thousands of crores in the name of infusing equity, their details
are as under:
(i) Swan Telecom Capital Pvt. Ltd. (now known as Etisalat DB Telecom
Pvt. Ltd.) which was incorporated on 13.7.2006 and got UAS Licence
by paying licence fee of Rs. 1537 crores transferred its 45%
(approximate) equity in favour of Etisalat Mauritius Limited, a wholly
owned subsidiary of Emirates Telecommunications Corporation of
UAE for over Rs.3,544 crores.
(ii) Unitech which had obtained licence for Rs.1651 crores transferred its
stake 60% equity in favour of Telenor Asia Pte. Ltd., a part of Telenor
Group (Norway) in the name of issue of fresh equity shares for
Rs.6120 crores between March, 2009 and February, 2010.
5
(iii) Tata Tele Services transferred 27.31% of equity worth Rs. 12,924
crores in favour of NTT DOCOMO.
(iv) Tata Tele Services (Maharashtra) transferred 20.25% of equity worth
Rs. 949 crores in favour of NTT DOCOMO.
45. S. Tel Ltd., who had applied for grant of licence pursuant to press note
dated 24.9.2007, but was ousted from the zone of consideration because of the
cut-off date fixed by the Minister of C&IT, filed Writ Petition No.636 of 2008
in the Delhi High Court with the prayer that the first press release dated
10.1.2008 may be quashed. After hearing the parties, the learned Single Judge
vide his order dated 1.7.2009 declared that the cut-off date, i.e., 25.9.2007 was
totally arbitrary and directed the respondents in the writ petition to consider the
offer made by the writ petitioner to pay Rs.17.752 crores towards additional
revenue share over and above the applicable spectrum revenue share. The
observations made by the learned Single Judge on the justification of fixing
25.9.2007 as the cut-off date read as under:
"Thus on the one hand the respondent has accepted the
recommendation of the TRAI in the impugned press note, but
acted contrary thereto by amending the cut-off date and thus placed
a cap on the number of service providers. The stand taken by
respondent and the justification sought to be given for fixing a cut-
off date retrospectively is on account of large volume of
applications, is without any force in view of the fact that neither
any justification was rendered during the course of argument, nor
any justification has been rendered in the counter affidavit as to
what is the effect of receipt of large number of applications in view
5
of the fact that a recommendation of the TRAI suggests no cap on
the number of access service providers in any service area. This
recommendation was duly accepted and published in the
newspaper. Further as per the counter affidavit 232 UASL
applications were received till 25.9.2007 from 22 companies.
Assuming there was increase in the volume of applications, the
respondent has failed to answer the crucial question as to what was
the rationale and basis for fixing 25.9.2007 as the cut-off date.
Even otherwise, admittedly 232 applications were made by
25.9.2007 and between 25.9.2007 and 1.10.2007 only 76 were
applications were received. It was only on 1.10.2007 that 267
applications were made. Thus on 28.09.2007 it cannot be said that
large number of applications were received. Thus taking into
consideration the opinion of the expert body, which as per the
press note of the respondent itself was accepted by the respondent,
certainly the respondent cannot be allowed to change the rules of
the game after the game had begun, to put it in the words of the
Apex Court especially when the respondent has failed to give any
plausible justification or the rationale for fixing the cut-off date by
merely a week. Taking into consideration that on 13.4.2007 the
Government of India had recommended TRAI to furnish its
recommendation in terms of 11 (e) of the TRAI Act, 1997 on the
issue as to whether a limit should be put on the number of access
service providers in each service area. The TRAI having given its
recommendations on 28.8.2007 which were duly accepted by the
Government, the respondent cannot be allowed to arbitrarily
change the cut-off date and that too without any justifiable
reasons."
46. The letters patent appeal filed against the order of the learned Single
Judge was dismissed by the Division Bench of the High Court vide judgment
dated 24.11.2009, paragraphs 13 and 14 whereof are reproduced below:
"13. We are unable to agree with the submission of the learned
Attorney General that the parameters that would apply to revising a
cut-off date that has been earlier fixed prior to the receipt of the
applications would be no different from fixing a cut-off date in the
first place. While the decision in D.S. Nakara which has
5
subsequently been distinguished in N. Subbarayudu is about fixing
a cut-off date which might be an exercise in the discretion of the
Appellant, those decisions are not helpful in deciding the revision
of a cut-off date after applications have been received in terms of
the previous cut-off date, is amenable to judicial review on
administrative and constitutional law parameters. We are of the
view that the two situations cannot be equated. The Government
would have to justify its decision to revise a cut-off date already
fixed, after applications have been received from persons acting on
the basis of the earlier cut-off date. It would be for the court to be
satisfied when a challenge is made, that the decision to revise a
cut-off date after receiving applications on the basis of the cut-off
date earlier fixed was based on some rational basis and was not
intended to benefit a few applicants while discriminating against
the rest. In the present case, for the reasons pointed out by the
learned Single Judge, with which we concur, the Appellant has
been unable to show that its decision to revise the cut-off date after
receiving the application of the Respondent was based on some
rational criteria. It is vulnerable to being labelled arbitrary and
irrational.
14. We are not able to appreciate, in the instant case, the
submission of the learned Attorney General that the mere
advancing of the cut-off date would not tantamount to changing the
rules after the game has begun. In a sense it does. It makes
ineligible for consideration the applicants who had applied, after
25th September 2007 but on or before 1st October 2007. Further this
ineligibility is announced after the applications have been made. In
other words, while at the time of making the application there was
no such ineligibility, it is introduced later and that too for a select
category of applicants. This cannot but be a change in the rule after
the game has begun. We do not think that the decisions relied upon
by the learned Attorney General contemplate such a situation. On
the other hand the decisions in Monarch Infrastructure (P) Ltd. and
K. Manjushree fully support the Respondent's case for invalidation
of the Appellant's impugned decision revise the cut-off date from
1st October 2007 to 25th September 2007, long after receiving the
application from the Respondent."
5
47. The Union of India challenged the judgment of the Division Bench in
SLP(C) No.33406/2009. During the pendency of the special leave petition,
some compromise appears to have been reached between the writ petitioner and
the authorities and, therefore, an additional affidavit was filed along with agreed
minutes of order before this Court on 12.3.2010. In view of this development,
the Court disposed of the appeal arising out of the special leave petition but
specifically approved the findings recorded by the High Court with regard to
the cut-off date by making the following observations:
"Taking the additional affidavit and the suggestions made by the
learned Attorney General, this appeal is disposed of as requiring no
further adjudication.
However, we make it clear that the findings recorded by the High
Court with regard to the cut off date is not interfered with and
disturbed by this Court in the present case."
GROUNDS OF CHALLENGE
48. The petitioners have questioned the grant of UAS Licences to the private
respondents by contending that the procedure adopted by the DoT was
arbitrary, illegal and in complete violation of Article 14 of the Constitution.
They have relied upon the order passed by the learned Single Judge of the Delhi
High Court as also the judgment of the Division Bench, which was approved by
this Court and pleaded that once the Court has held that the cut-off date, i.e.,
5
25.9.2007 fixed for consideration of the applications was arbitrary and
unconstitutional, the entire procedure adopted by the DoT for grant of UAS
Licences with the approval of the Minister of C&IT is liable to be declared
illegal and quashed. Another plea taken by the petitioners is that the DoT
violated the recommendations made by TRAI that there should be no cap on the
number of Access Service Providers in any service area and this was in
complete violation of Section 11(1) of the 1997 Act. The petitioners have
relied upon the report of the Comptroller and Auditor General (CAG) and
pleaded that the consideration of large number of ineligible applicants and grant
of LoIs and licenses to them is ex facie illegal and arbitrary. The petitioners
have also pleaded that the entire method adopted by the DoT for grant of
licence is flawed because the recommendations made by TRAI for grant of
licences at the entry fee determined in 2001 was wholly arbitrary,
unconstitutional and contrary to public interest. Yet another plea of the
petitioners is that while deciding to grant licences, which are bundled with
spectrum, at the price fixed in 2001 the DoT did not bother to consult the
Finance Ministry and, thereby, violated the mandate of the decision taken by
the Council of Ministers in 2003. The petitioners have also pleaded that the
principle of first-come-first-served is by itself violative of Article 14 of the
Constitution and in any case distortion thereof by the Minister of C&IT and the
5
consequential grant of licences is liable to be annulled. Another ground taken
by the petitioners is that even though a number of licensees failed to fulfil the
roll out obligations and violated conditions of the licence, the Government of
India did not take any action to cancel the licences.
COUNTER AFFIDAVITS OF THE RESPONDENTS
49. Most of the respondents have filed separate but similar counter affidavits
in both the petitions. The main points raised by the respondents are:
(i) The petitioners are not entitled to challenge the recommendations made
by TRAI and the policy decisions taken by the Government for grant of UAS
Licences.
(ii) The Court cannot review and nullify the recommendations made by
TRAI in the matter of allocation of spectrum in 800, 900 and 1800 MHz bands
at the rates fixed in 2001.
(iii) The report prepared by the CAG cannot be relied upon for the purpose of
recording a finding that the procedure adopted for the grant of UAS Licences is
contrary to Article 14 of the Constitution. The private respondents have also
claimed that the observations made by the CAG and the conclusions recorded
by him are seriously flawed and are based on totally unfounded assumptions.
6
(iv) The UAS Licences were given strictly in accordance with the modified
first-come-first-served policy. That the respondents were able to fulfil LoI
conditions because newspapers had already published stories about the possible
grant of licences in the month of January, 2008.
(v) That those who had made applications in 2004 and 2006 cannot be
clubbed with those who had applied in the month of August and September,
2007 because in terms of the existing UASL guidelines they were entitled to
licences.
(vi) That private respondents have made huge investments for creating
infrastructure to provide services in different parts of the country and if the
licences granted to them are cancelled at this stage, public interest would be
adversely affected.
(vii) That the private respondents have been able to secure foreign direct
investment of thousands of crores for providing better telecom services in
remote areas of the country and any intervention by the Court would result in
depriving the people living in those areas of telecom services.
(viii) The Government and TRAI have already initiated action for levy of
penalty/liquidated damages for non-compliance of the roll out obligations and
violation of conditions of the license. That the licensees have not violated any
6
conditions of the license and that the notices issued by TRAI alleging the same
have already been challenged before TDSAT and in most cases, interim orders
have been passed. That the remedy, if any, available to the petitioners is to
approach the TDSAT.
(ix) Some of the respondents have also questioned the application of the
policy of first-come-first-served by asserting that even though they had applied
in 2004 and 2006, and licences had been granted to them before 25.9.2007, the
allocation of spectrum was delayed till 2008 and those who had applied in 2007
were placed above them because they could fulfil the conditions of LoI in terms
of the distorted version of the policy first-come-first-served.
50. The petitioners have filed rejoinder affidavit and reiterated the assertions
made in the main petition that the grant of UAS Licences is fundamentally
flawed and is violative of the Constitutional principles. They have also placed
on record report dated 31.1.2011 submitted by the One Man Committee,
(hereinafter referred to as `One-Man Committee Report'), comprising Justice
Shivaraj V. Patil (former Judge of this Court), which was constituted by the
Government of India vide Office Memorandum dated 13.12.2010 to examine
the appropriateness of the procedure followed by the DoT in issuance of
licences and allocation of spectrum during the period 2001 to 2009. They have
6
also placed on record photostat copies of the notings recorded on the files of the
DoT.
ARGUMENTS
51. Shri Prashant Bhushan, learned counsel for the petitioners in Writ
Petition (C) No. 423 of 2010 and Dr. Subramanian Swamy, who is petitioner-
in-person in Writ Petition (C) No. 10 of 2011 made the following submissions:
(i) The spectrum, which is a national asset, cannot be distributed by
adopting the policy of first-come-first-served on the basis of the
application received by the DoT without any advertisement and
without holding auction.
(ii) The grant of licences bundled with spectrum is ex-facie arbitrary
illegal and violative of Article 14 of the Constitution.
(iii) The decision of the Minister of C&IT to pre-pone the cut-off date
from 1.10.2007 to 25.9.2007, which eliminated large number of
applications, is violative of Article 14 of the Constitution and the
6
entire exercise undertaken with reference to this cut-off date has
resulted in discrimination vis-`-vis other eligible applicants.
(iv) Once the cut-off date fixed by the Minister of C&IT for
consideration of the applications received in the light of the earlier
press release fixing the last date as 1.10.2007 has been declared to
be arbitrary and unconstitutional by the High Court, the
consequential actions taken by the DoT on that basis are liable to
be annulled.
(v) The first-come-first-served policy suffers from a fundamental flaw
inasmuch as there is no defined criterion for operating that policy.
There is no provision for issue of advertisement notifying
obligations for grant of licence and allocation of spectrum and any
person who makes an application becomes entitled to get licence
and spectrum.
(vi) The first-come-first-served policy was manipulated by the Minister
of C&IT to favour some of the applicants including those who
were not even eligible. Shri Bhushan pointed out that, out of 122
applications, 85 were found to be ineligible and those who could
obtain information either from the concerned Minister or the
6
officers of DoT about the change of the criteria for implementing
the first-come-first-served policy got advantage and acquired
priority over those who had applied earlier.
(vii) The meeting of the Telecom Commission scheduled for 9.1.2008
was deliberately postponed because vide letter dated 22.11.2007
the Finance Secretary had strongly objected to the charging of
entry fee fixed in 2001.
(viii) Shri Bhushan pointed out that the recommendations made by
TRAI on 28.8.2007 were contrary to public interest as well as
financial interest of the nation because at the time of entry of 4th
cellular operator the same TRAI had suggested multi-stage bidding
and even for allocation of 3G spectrum the methodology of auction
was suggested but, for no ostensible reason, the so-called theory of
level playing field was innovated for grant of UAS Licences in
2007 on the basis of the entry fee fixed in 2001. Learned counsel
emphasized that the transfer of equity by three of the licensees
immediately after issue of licences for gain of many thousand
crores shows that if the policy of auction had been followed, the
nation would have been enriched by many thousand crores.
6
(ix) Both, Shri Prashant Bhushan and Dr. Subramanian Swamy pointed
out that although the Prime Minister had suggested that a fair and
transparent method be adopted for grant of UAS Licences through
the process of auction, the Minister of C&IT casually and
arbitrarily brushed aside the suggestion and granted licence to the
applicants for extraneous reasons.
(x) Shri Prashant Bhushan also questioned the grant of the benefit of
the policy of dual technology to Tata Teleservices Ltd. by
contending that this was a result of manipulation made by the
service provider. Dr. Subramanian Swamy also raised a concern
regarding the national security and pointed out that some of the
applicants who have trans-border connections have received
licences and they may ultimately prove to be dangerous for the
nation.
52. Shri G.E. Vahanvati, learned Attorney General referred to NTP 1994 and
NTP 1999 and submitted that the policy decision taken by the Government of
India for private sector participation, which could bring in the funds required
for expansion of telecommunication services in different parts of the country,
cannot be scrutinized by the Court. He submitted that in the last more than 20
6
years, the telecom services have expanded beyond anybody's expectation
because of private sector participation and it cannot be said that granting UAS
Licences by charging the entry fee determined at 2001 prices is
unconstitutional. Learned counsel referred to the history of development in the
field of telecommunications and the concept of spectrum, and submitted that the
policy decision taken by the DoT for migration of CDMA service providers was
neither illegal nor unconstitutional.
53. Shri Salve, learned senior counsel appearing for respondent No. 9,
pointed out that Tata Teleservices had sent an application through fax for grant
of GSM for the existing licences which were issued on 19.10.2007 and no
exception can be taken to this because Reliance Telecom, which had applied for
GSM on 6.2.2006, was given the benefit of migration to dual technology on
18.10.2007, i.e. even before the policy was made public. Learned senior counsel
argued that the decision not to auction UAS Licences was based on the
recommendations of TRAI and as the petitioners have not challenged the
recommendations for two years, the exercise undertaken by the DoT for grant
of UAS Licences in 2008 and subsequent allotment of spectrum should not be
nullified. Shri Salve argued that the question of institutional integrity is
involved in the matter and if the Court comes to the conclusion that auction is
the only method for grant of licences and allocation of spectrum then
6
everything should be annulled right from 2001. Learned senior counsel
submitted that multi-stage bidding was done only for the purpose of entry of 4th
cellular operator but, thereafter, no auction was held. He submitted that if the
spectrum was allotted free of charge till 2007, there could be no justification for
auction of licences or spectrum in 2007.
54. Shri C.A. Sundaram, learned counsel appearing for respondent Nos. 2
and 4, heavily relied on paragraphs 7.2, 7.4, 7.12, 7.29, 7.30, 7.37 and 7.39 of
TRAI's recommendations dated 27.10.2003 and argued that the
recommendations made in 2007 were nothing but a continuation of the old
policy and, therefore, the petitioners are not entitled to question the method
adopted for grant of UAS Licences pursuant to the 2007 recommendations.
Learned senior counsel submitted that the policy for grant of UAS Licences and
allocation of spectrum cannot be said to be per se arbitrary because the same
was decided after great deliberations and consideration of international
practices. He also relied upon the speech made by the Prime Minister on
2.11.2007 and submitted that the action of the DoT should not be nullified
because that will have a far-reaching adverse impact on the availability of
telecommunication services in the country.
6
55. Shri Vikas Singh, learned senior counsel appearing for respondent no. 10,
argued that the recommendations made by TRAI in 2007, which were approved
by the Minister of C&IT are in national interest because the same would attract
investment by foreign players and would benefit the people at large. Learned
counsel emphasised that his client has already invested Rs. 6,000 crores and it
would be totally unjust if the licence granted in 2008 is cancelled. Shri Vikas
Singh also submitted that after the grant of licences and allocation of spectrum
the people have been hugely benefited inasmuch as the telecom services have
become competitive with the international market and even cheaper than that.
56. Shri C. S. Vaidyanathan, learned senior counsel appearing for respondent
No. 8, argued that the application made by his client was pending since June,
2006 and its priority was pushed down due to the application of the distorted
version of the first-come-first-served policy. Shri Vaidyanathan pointed out that
when the Minister of C&IT announced that applications will not be received
after 1.10.2007, there was a huge rush of applications and a large number of
players who had no experience in the field of telecom made applications and
got the licences.
57. Dr. Abhishek Manu Singhvi, learned senior counsel appearing for
respondent nos. 11 and 12, argued that his clients had made applications much
6
prior to 2007 but they were unfairly clubbed with those who had applied in
2007 and in this manner the principle of equality was violated. Dr. Singhvi
submitted that if the applications made prior to 2007 had been processed as per
the existing policy, respondent Nos. 11 and 12 would have received licences
bundled with spectrum without competition/objection from anyone.
58. Shri Dayan Krishnan, learned counsel for respondent No. 6, adopted the
arguments of other learned counsel and submitted that the licences granted in
2007 should not be quashed at this belated stage.
59. Shri Rakesh Dwivedi, learned senior counsel for TRAI, referred to
TRAI's written submissions to justify why it had not recommended auction of
licences. Learned senior counsel extensively referred to the recommendations
made by TRAI in 2007 and submitted that even though it was specifically
suggested that the DoT should take a comprehensive decision on the allocation
of spectrum, no effort was made in that direction and the licences were granted
without determining availability of spectrum. Shri Dwivedi also submitted that
TRAI has already initiated action for cancellation of licences of those
respondents who have violated the terms of licence and/or failed to fulfil roll-
out obligations.
7
60. Learned counsel for both the sides relied upon a large number of
decisions. Shri Prashant Bhushan and Dr. Subramanian Swamy relied upon the
following judgements: K. Manjusree v. State of Andhra Pradesh (2008) 3 SCC
512, Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal
Corpn. (2000) 5 SCC 287, Home Communication Ltd. and Anr. v. Union of
India and Ors. 52 (1993) DLT 168, Jamshed Hormusji Wadia v. Board of
Trustees, Port of Mumbai (2004) 3 SCC 214, Chaitanya Kumar v. State of
Karnataka (1986) 2 SCC 594, Shivsagar Tiwari v. Union of India, (1996) 6
SCC 558, Common Cause, A Registered Society (Petrol pumps matter) v.
Union of India (1996) 6 SCC 530 and Nagar Nigam v. Al Faheem Meat Exports
(P) Ltd. (2006) 13 SCC 382. Learned Attorney General and learned counsel
appearing for the private respondents relied upon Delhi Science Forum v.
Union of India (1996) 2 SCC 405, BALCO Employees' Union (Regd.) v. Union
of India (2002) 2 SCC 333, Villianur Iyarkkai Padukappu Maiyam v. Union of
India (2009) 7 SCC 561, Ministry of Labour and Rehabilitation v. Tiffin's
Barytes Asbestos & Paints Ltd. (1985) 3 SCC 594, United India Fire and
General Insurance Co. Ltd. v. K.S. Vishwanathan (1985) 3 SCC 686, State of
T.N. v. M.N. Sundararajan (1980) 4 SCC 592, Sunil Pannalal Banthia v. City &
Industrial Development Corporation of Maharashtra Ltd. (2007) 10 SCC 674,
Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group
7
(2006) 3 SCC 434, Prem Chand Somchand Shah v. Union of India (1991) 2
SCC 48 and Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. (1983) 1 SCC
147.
61. Before dealing with the arguments of the learned counsel for the parties
and adverting to some of the precedents, we consider it necessary to mention
that during the course of hearing, Shri Prashant Bhushan and Dr. Subramanian
Swamy heavily relied upon the CAG report as also the One Man Committee
Report. Learned Attorney General and learned senior counsel appearing for
some of the private respondents also referred to the One Man Committee
Report. However, as the CAG report is being examined by the Public Accounts
Committee and Joint Parliamentary Committee of Parliament we do not
consider it proper to refer to the findings and conclusions contained therein.
Likewise, we do not consider it necessary to advert to the observations made,
and the suggestions given by the One Man Committee because the Government
of India has already taken a decision to segregate spectrum from licence and
allot the same by auction. This is evident from the following extracts of the
press statement dated 29.1.2011 issued by the present Minister of C&IT:
"In future, the spectrum will not be bundled with licence. The licence
to be issued to telecom operators will be in the nature of `unified
licence' and the licence holder will be free to offer any of the
multifarious telecom services. In the event the licence holder would
7
like to offer wireless services, it will have to obtain spectrum through
a market driven process. In future, there will be no concept of
contracted spectrum and, therefore, no concept of initial or start-up
spectrum. Spectrum will be made available only through market
driven process.
While moving towards a new policy dispensation, it is necessary to
ensure a level playing field between all players. Hence going
forward, any new policy of pricing would need to be applied to
equally to all players. Additionally, assignment of balance of
contracted spectrum may need to be ensured for the existing
licensees who have so far been allocated only the start up spectrum
of 4.4 MHz. It may be recalled that showcause notices have been
issued to certain licensees for cancellation. Only in respect of the
licences that will be found valid after the process is completed, the
additional 1.8 MHz will be assigned on their becoming eligible, but
the spectrum will be assigned to them at a price determined under the
new policy.
We need to seriously consider the adoption of an auction process for
allocation and pricing of spectrum beyond 6.2 MHz while ensuring
that there is adequate competition in the auction process.
TRAI had made recommendations in May 2010 and indicated that it
would apprise the Government of the findings of a study on the
question of pricing of 2G spectrum in future. This is expected
shortly. We would examine their recommendations speedily as soon
as they are received, keeping the perspectives that I have outlined,
while finalizing our new policy. I am confident that we will be able
to design a policy that ensures that existing licence holders get the
spectrum they need and are entitled to, while simultaneously,
ensuring that the Government also receives revenues commensurate
with the current market value of spectrum."
62. We shall now consider the questions enumerated in the opening
paragraph of the judgment.
63. Question No.1:
7
At the outset, we consider it proper to observe that even though there is no
universally accepted definition of natural resources, they are generally
understood as elements having intrinsic utility to mankind. They may be
renewable or non renewable. They are thought of as the individual elements of
the natural environment that provide economic and social services to human
society and are considered valuable in their relatively unmodified, natural,
form. A natural resource's value rests in the amount of the material available
and the demand for it. The latter is determined by its usefulness to production.
Natural resources belong to the people but the State legally owns them on
behalf of its people and from that point of view natural resources are considered
as national assets, more so because the State benefits immensely from their
value. The State is empowered to distribute natural resources. However, as
they constitute public property/national asset, while distributing natural
resources, the State is bound to act in consonance with the principles of equality
and public trust and ensure that no action is taken which may be detrimental to
public interest. Like any other State action, constitutionalism must be reflected
at every stage of the distribution of natural resources. In Article 39(b) of the
Constitution it has been provided that the ownership and control of the material
resources of the community should be so distributed so as to best sub-serve the
common good, but no comprehensive legislation has been enacted to generally
7
define natural resources and a framework for their protection. Of course,
environment laws enacted by Parliament and State legislatures deal with
specific natural resources, i.e., Forest, Air, Water, Costal Zones, etc.
64. The ownership regime relating to natural resources can also be
ascertained from international conventions and customary international law,
common law and national constitutions. In international law, it rests upon the
concept of sovereignty and seeks to respect the principle of permanent
sovereignty (of peoples and nations) over (their) natural resources as asserted in
the 17th Session of the United Nations General Assemble and then affirmed as a
customary international norm by the International Court of Justice in the case
opposing the Democratic Republic of Congo to Uganda. Common Law
recognizes States as having the authority to protect natural resources insofar as
the resources are within the interests of the general public. The State is deemed
to have a proprietary interest in natural resources and must act as guardian and
trustee in relation to the same. Constitutions across the world focus on
establishing natural resources as owned by, and for the benefit of, the country.
In most instances where constitutions specifically address ownership of natural
resources, the Sovereign State, or, as it is more commonly expressed, `the
people', is designated as the owner of the natural resource.
7
65. Spectrum has been internationally accepted as a scarce, finite and
renewable natural resource which is susceptible to degradation in case of
inefficient utilisation. It has a high economic value in the light of the demand
for it on account of the tremendous growth in the telecom sector. Although it
does not belong to a particular State, right of use has been granted to States as
per international norms.
66. In India, the Courts have given an expansive interpretation to the concept
of natural resources and have from time to time issued directions, by relying
upon the provisions contained in Articles 38, 39, 48, 48A and 51A(g), for
protection and proper allocation/distribution of natural resources and have
repeatedly insisted on compliance of the constitutional principles in the process
of distribution, transfer and alienation to private persons. The doctrine of
public trust, which was evolved in Illinois Central Railroad Co. v. People of the
State of Illinois 146 U.S. 387 (1892), has been held by this Court to be a part of
the Indian jurisprudence in M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 and
has been applied in Jamshed Hormusji Wadia v. Board of Trustee, Port of
Mumbai (2002) 3 SCC 214, Intellectuals Forum, Tirupathi v. State of A.P.
(2006) 3 SCC 549 and Fomento Resorts and Hotels Limited v. Minguel Martins
(2009) 3 SCC 571. In Jamshed Hormusji Wadia's case, this Court held that the
State's actions and the actions of its agencies/instrumentalities must be for the
7
public good, achieving the objects for which they exist and should not be
arbitrary or capricious. In the field of contracts, the State and its
instrumentalities should design their activities in a manner which would ensure
competition and not discrimination. They can augment their resources but the
object should be to serve the public cause and to do public good by resorting to
fair and reasonable methods. In Fomento Resorts and Hotels Limited case, the
Court referred to the article of Prof. Joseph L. Sax and made the following
observations:
"53. The public trust doctrine enjoins upon the Government to protect
the resources for the enjoyment of the general public rather than to
permit their use for private ownership or commercial purposes. This
doctrine puts an implicit embargo on the right of the State to transfer
public properties to private party if such transfer affects public
interest, mandates affirmative State action for effective management
of natural resources and empowers the citizens to question ineffective
management thereof.
54. The heart of the public trust doctrine is that it imposes limits and
obligations upon government agencies and their administrators on
behalf of all the people and especially future generations. For
example, renewable and non-renewable resources, associated uses,
ecological values or objects in which the public has a special interest
(i.e. public lands, waters, etc.) are held subject to the duty of the State
not to impair such resources, uses or values, even if private interests
are involved. The same obligations apply to managers of forests,
monuments, parks, the public domain and other public assets.
Professor Joseph L. Sax in his classic article, "The Public Trust
Doctrine in Natural Resources Law: Effective Judicial Intervention"
(1970), indicates that the public trust doctrine, of all concepts known
to law, constitutes the best practical and philosophical premise and
7
legal tool for protecting public rights and for protecting and managing
resources, ecological values or objects held in trust.
55. The public trust doctrine is a tool for exerting long-established
public rights over short-term public rights and private gain. Today
every person exercising his or her right to use the air, water, or land
and associated natural ecosystems has the obligation to secure for the
rest of us the right to live or otherwise use that same resource or
property for the long-term and enjoyment by future generations. To
say it another way, a landowner or lessee and a water right holder has
an obligation to use such resources in a manner as not to impair or
diminish the people's rights and the people's long-term interest in that
property or resource, including down slope lands, waters and
resources."
67. In Secretary, Ministry of Information & Broadcasting, Govt. of India v.
Cricket Assn. of Bengal, (1995) 2 SCC 161, the Court was dealing with the
right of organizers of an event, such as a sport tournament, to its live audio-
visual broadcast, universally, through an agency of their choice, national or
foreign. In paragraph 78, the Court described the airwaves/frequencies as public
property in the following words:
"There is no doubt that since the airwaves/frequencies are a public
property and are also limited, they have to be used in the best interest
of the society and this can be done either by a central authority by
establishing its own broadcasting network or regulating the grant of
licences to other agencies, including the private agencies."
68. In Reliance Natural Resources Limited v. Reliance Industries Limited,
(2010) 7 SCC 1, P. Sathasivam J., with whom Balakrishnan, C.J., agreed, made
the following observations:
7
"It must be noted that the constitutional mandate is that the natural
resources belong to the people of this country. The nature of the word
"vest" must be seen in the context of the public trust doctrine (PTD).
Even though this doctrine has been applied in cases dealing with
environmental jurisprudence, it has its broader application."
Learned Judge then referred to the judgments, In re Special Reference No. 1 of
2001 (2004) 4 SCC 489, M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 and
observed:
"This doctrine is part of Indian law and finds application in the
present case as well. It is thus the duty of the Government to provide
complete protection to the natural resources as a trustee of the people
at large."
The Court also held that natural resources are vested with the Government as a
matter of trust in the name of the people of India, thus it is the solemn duty of
the State to protect the national interest and natural resources must always be
used in the interests of the country and not private interests.
69. As natural resources are public goods, the doctrine of equality, which
emerges from the concepts of justice and fairness, must guide the State in
determining the actual mechanism for distribution of natural resources. In this
regard, the doctrine of equality has two aspects: first, it regulates the rights and
obligations of the State vis-`-vis its people and demands that the people be
granted equitable access to natural resources and/or its products and that they
7
are adequately compensated for the transfer of the resource to the private
domain; and second, it regulates the rights and obligations of the State vis-`-vis
private parties seeking to acquire/use the resource and demands that the
procedure adopted for distribution is just, non-arbitrary and transparent and that
it does not discriminate between similarly placed private parties.
70. In Akhil Bharatiya Upbhokta Congress v. State of M.P. (2011) 5 SCC 29,
this Court examined the legality of the action taken by the Government of
Madhya Pradesh to allot 20 acres land to an institute established in the name of
Kushabhau Thakre on the basis of an application made by the Trust. One of the
grounds on which the appellant challenged the allotment of land was that the
State Government had not adopted any rational method consistent with the
doctrine of equality. The High Court negatived the appellant's challenge.
Before this Court, learned senior counsel appearing for the State relied upon
the judgments in Ugar Sugar Works Ltd. v. Delhi Administration (2001) 3 SCC
635, State of U.P. v. Choudhary Rambeer Singh (2008) 5 SCC 550, State of
Orissa v. Gopinath Dash (2005) 13 SCC 495 and Meerut Development
Authority v. Association of Management Studies (2009) 6 SCC 171 and argued
that the Court cannot exercise the power of judicial review to nullify the policy
framed by the State Government to allot Nazul land without advertisement.
8
This Court rejected the argument, referred to the judgments in Ramanna
Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489,
S.G. Jaisinghani v. Union of India AIR 1967 SC 1427, Kasturilal Lakshmi
Reddy v. State of J & K (1980) 4 SCC 1, Common Cause v. Union of India
(1996) 6 SCC 530, Shrilekha Vidyarthy v. State of U.P. (1991) 1 SCC 212, LIC
v. Consumer Education and Research Centre (1995) 5 SCC 482, New India
Public School v. HUDA (1996) 5 SCC 510 and held:
"What needs to be emphasised is that the State and/or its
agencies/instrumentalities cannot give largesse to any person
according to the sweet will and whims of the political entities
and/or officers of the State. Every action/decision of the State
and/or its agencies/instrumentalities to give largesse or confer
benefit must be founded on a sound, transparent, discernible and
well-defined policy, which shall be made known to the public by
publication in the Official Gazette and other recognised modes of
publicity and such policy must be implemented/executed by
adopting a non-discriminatory and non-arbitrary method
irrespective of the class or category of persons proposed to be
benefited by the policy. The distribution of largesse like allotment
of land, grant of quota, permit licence, etc. by the State and its
agencies/instrumentalities should always be done in a fair and
equitable manner and the element of favouritism or nepotism shall
not influence the exercise of discretion, if any, conferred upon the
particular functionary or officer of the State."
71. In Sachidanand Pandey v. State of West Bengal (1987) 2 SCC 295,
the Court referred to some of the precedents and laid down the following
propositions:
8
"State-owned or public-owned property is not to be dealt with at
the absolute discretion of the executive. Certain precepts and
principles have to be observed. Public interest is the paramount
consideration. One of the methods of securing the public interest,
when it is considered necessary to dispose of a property, is to sell
the property by public auction or by inviting tenders. Though that
is the ordinary rule, it is not an invariable rule. There may be
situations where there are compelling reasons necessitating
departure from the rule but then the reasons for the departure must
be rational and should not be suggestive of discrimination.
Appearance of public justice is as important as doing justice.
Nothing should be done which gives an appearance of bias,
jobbery or nepotism."
72. In conclusion, we hold that the State is the legal owner of the natural
resources as a trustee of the people and although it is empowered to distribute
the same, the process of distribution must be guided by the constitutional
principles including the doctrine of equality and larger public good.
73. Question No.2:
Although, while making recommendations on 28.8.2007, TRAI itself had
recognised that spectrum was a scarce commodity, it made recommendation for
allocation of 2G spectrum on the basis of 2001 price by invoking the theory of
level playing field. Paragraph 2.40 of the recommendations dated 28.8.2007
shows that as per TRAI's own assessment the existing system of spectrum
allocation criteria, pricing methodology and the management system suffered
from number of deficiencies and there was an urgent need to address the issues
8
linked with spectrum efficiency and its management and yet it decided to
recommend the allocation of spectrum at the price determined in 2001. All this
was done in the name of growth, affordability, penetration of wireless services
in semi urban and rural areas, etc. Unfortunately, while doing so, TRAI
completely overlooked that one of the main objectives of NTP 1999 was that
spectrum should be utilised efficiently, economically, rationally and optimally
and there should be a transparent process of allocation of frequency spectrum as
also the fact that in terms of the decision taken by the Council of Ministers in
2003 to approve the recommendations of the Group of Ministers the DoT and
Ministry of Finance were required to discuss and finalise the spectrum pricing
formula. To say the least, the entire approach adopted by TRAI was lopsided
and contrary to the decision taken by the Council of Ministers and its
recommendations became a handle for the then the Minister of C&IT and the
officers of the DoT who virtually gifted away the important national asset at
throw away prices by willfully ignoring the concerns raised from various
quarters including the Prime Minister, Ministry of Finance and also some of its
own officers. This becomes clear from the fact that soon after obtaining the
licences, some of the beneficiaries off-loaded their stakes to others, in the name
of transfer of equity or infusion of fresh capital by foreign companies, and
thereby made huge profits. We have no doubt that if the method of auction had
8
been adopted for grant of licence which could be the only rational transparent
method for distribution of national wealth, the nation would have been enriched
by many thousand crores.
74. While it cannot be denied that TRAI is an expert body assigned with
important functions under the 1997 Act, it cannot make recommendations
overlooking the basic constitutional postulates and established principles and
make recommendations which would deny people from participating in the
distribution of national wealth and benefit a handful of persons. Therefore,
even though the scope of judicial review in such matters is extremely limited, as
pointed out in Delhi Science Forum v. Union of India (supra) and a large
number of other judgments relied upon by the learned counsel of the
respondents, keeping in view the facts which have been brought to the notice of
the Court that the mechanism evolved by TRAI for allocation of spectrum and
the methodology adopted by the then Minister of C&IT and the officers of DoT
for grant of UAS Licences may have caused huge loss to the nation, we have no
hesitation to record a finding that the recommendations made by TRAI were
flawed in many respects and implementation thereof by the DoT resulted in
gross violation of the objective of NPT 1999 and the decision taken by the
Council of Ministers on 31.10.2003.
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75. We may also mention that even though in its recommendations dated
28.8.2007, TRAI had not specifically recommended that entry fee be fixed at
2001 rates, but paragraph 2.73 and other related paragraphs of its
recommendations state that it has decided not to recommend the standard option
for pricing of spectrum in 2G bands keeping in view the level playing field for
the new entrants. It is impossible to approve the decision taken by the DoT to
act upon those recommendations. We also consider it necessary to observe that
in today's dynamism and unprecedented growth of telecom sector, the entry fee
determined in 2001 ought to have been treated by the TRAI as wholly
unrealistic for grant of licence along with start up spectrum. In our view, the
recommendations made by TRAI in this regard were contrary to the decision of
the Council of Ministers that the DoT shall discuss the issue of spectrum pricing
with the Ministry of Finance along with the issue of incentive for efficient use
of spectrum as well as disincentive for sub-optimal usages. Being an expert
body, it was incumbent upon the TRAI to make suitable recommendations even
for the 2G bands especially in light of the deficiencies of the present system
which it had itself pointed out. We do not find merit in the reasoning of TRAI
that the consideration of maintaining a level playing field prevented a realistic
reassessment of the entry fee.
8
76. Question Nos.3 and 4:
There is a fundamental flaw in the first-come-first-served policy inasmuch as it
involves an element of pure chance or accident. In matters involving award of
contracts or grant of licence or permission to use public property, the invocation
of first-come-first-served policy has inherently dangerous implications. Any
person who has access to the power corridor at the highest or the lowest level
may be able to obtain information from the Government files or the files of the
agency/instrumentality of the State that a particular public property or asset is
likely to be disposed of or a contract is likely to be awarded or a licence or
permission is likely to be given, he would immediately make an application and
would become entitled to stand first in the queue at the cost of all others who
may have a better claim. This Court has repeatedly held that wherever a
contract is to be awarded or a licence is to be given, the public authority must
adopt a transparent and fair method for making selections so that all eligible
persons get a fair opportunity of competition. To put it differently, the State and
its agencies/instrumentalities must always adopt a rational method for disposal
of public property and no attempt should be made to scuttle the claim of worthy
applicants. When it comes to alienation of scarce natural resources like
spectrum etc., it is the burden of the State to ensure that a non-discriminatory
method is adopted for distribution and alienation, which would necessarily
8
result in protection of national/public interest. In our view, a duly publicised
auction conducted fairly and impartially is perhaps the best method for
discharging this burden and the methods like first-come-first-served when used
for alienation of natural resources/public property are likely to be misused by
unscrupulous people who are only interested in garnering maximum financial
benefit and have no respect for the constitutional ethos and values. In other
words, while transferring or alienating the natural resources, the State is duty
bound to adopt the method of auction by giving wide publicity so that all
eligible persons can participate in the process.
77. The exercise undertaken by the officers of the DoT between September,
2007 and March 2008, under the leadership of the then Minister of C&IT was
wholly arbitrary, capricious and contrary to public interest apart from being
violative of the doctrine of equality. The material produced before the Court
shows that the Minister of C&IT wanted to favour some companies at the cost
of the Public Exchequer and for this purpose, he took the following steps:
(i) Soon after his appointment as Minister of C&IT, he directed that
all the applications received for grant of UAS Licence should be kept
pending till the receipt of TRAI recommendations.
(ii) The recommendations made by TRAI on 28.8.2007 were not
placed before the full Telecom Commission which, among others, would
8
have included the Finance Secretary. The notice of the meeting of the
Telecom Commission was not given to any of the non permanent
members despite the fact that the recommendations made by TRAI for
allocation of spectrum in 2G bands had serious financial implications.
This has been established from the pleadings and the records produced
before this Court that after issue of licences, 3 applicants transferred their
equities for a total sum of Rs.24,493 crores in favour of foreign
companies. Therefore, it was absolutely necessary for the DoT to take
the opinion of the Finance Ministry as per the requirement of the
Government of India (Transaction of Business) Rules, 1961.
(iii) The officers of the DoT who attended the meeting of the Telecom
Commission held on 10.10.2007 hardly had any choice but to approve
the recommendations made by TRAI. If they had not done so, they
would have incurred the wrath of Minister of C&IT.
(iv) In view of the approval by the Council of Ministers of the
recommendations made by the Group of Ministers in 2003, the DoT had
to discuss the issue of spectrum pricing with the Ministry of Finance.
Therefore, the DoT was under an obligation to involve the Ministry of
Finance before any decision could be taken in the context of paragraphs
2.78 and 2.79 of TRAI's recommendations. However, as the Minister of
8
C&IT was very much conscious of the fact that the Secretary, Finance,
had objected to the allocation of 2G spectrum at the rates fixed in 2001,
he did not consult the Finance Minister or the officers of the Finance
Ministry.
(v) The Minister of C&IT brushed aside the suggestion made by the
Minister of Law and Justice for placing the matter before the Empowered
Group of Ministers. Not only this, within few hours of the receipt of the
suggestion made by the Prime Minister in his letter dated 2.11.2007 that
keeping in view the inadequacy of spectrum, transparency and fairness
should be maintained in the matter of allocation thereof, the Minister of
C&IT rejected the same by saying that it will be unfair, discriminatory,
arbitrary and capricious to auction the spectrum to new applicants
because it will not give them level playing field.
(vi) The Minister C&IT introduced cut off date as 25.9.2007 for
consideration of the applications received for grant of licence despite the
fact that only one day prior to this, press release was issued by the DoT
fixing 1.10.2007 as the last date for receipt of the applications. This
arbitrary action of the Minister of C&IT though appears to be innocuous,
actually benefitted some of the real estate companies who did not have
any experience in dealing with telecom services and who had made
8
applications only on 24.9.2007, i.e., one day before the cut off date fixed
by the Minister of C&IT on his own.
(vii) The cut off date, i.e. 25.9.2007 decided by the Minister of C&IT
on 2.11.2007 was not made public till 10.1.2008 and the first-come-first-
served policy, which was being followed since 2003 was changed by him
on 7.1.2008 and was incorporated in press release dated 10.1.2008. This
enabled some of the applicants, who had access either to the Minister or
the officers of the DoT to get the demand drafts, bank guarantee, etc.
prepared in advance for compliance of conditions of the LoIs, which was
the basis for determination of seniority for grant of licences and
allocation of spectrum.
(viii) The meeting of the full Telecom Commission, which was
scheduled to be held on 9.1.2008 to consider issues relating to grant of
licences and pricing of spectrum was deliberately postponed on 7.1.2008
so that the Secretary, Finance and Secretaries of three other important
Departments may not be able to raise objections against the procedure
devised by the DoT for grant of licence and allocation of spectrum by
applying the principle of level playing field.
(ix) The manner in which the exercise for grant of LoIs to the
applicants was conducted on 10.1.2008 leaves no room for doubt that
9
every thing was stage managed to favour those who were able to know in
advance the change in the implementation of the first-come-first served
policy. As a result of this, some of the companies which had submitted
applications in 2004 or 2006 were pushed down in the priority and those
who had applied between August and September 2007 succeeded in
getting higher seniority entitling them to allocation of spectrum on
priority basis.
78. The argument of Shri Harish Salve, learned senior counsel, that if the
Court finds that the exercise undertaken for grant of UAS Licences has resulted
in violation of the institutional integrity, then all the licences granted 2001
onwards should be cancelled does not deserve acceptance because those who
have got licence between 2001 and 24.9.2007 are not parties to these petitions
and legality of the licences granted to them has not been questioned before this
Court.
79. In majority of judgments relied upon by learned Attorney General and
learned counsel for the respondents, it has been held that the power of judicial
review should be exercised with great care and circumspection and the Court
should not ordinarily interfere with the policy decisions of the Government in
financial matters. There cannot be any quarrel with the proposition that the
Court cannot substitute its opinion for the one formed by the experts in the
9
particular field and due respect should be given to the wisdom of those who are
entrusted with the task of framing the policies. We are also conscious of the
fact that the Court should not interfere with the fiscal policies of the State.
However, when it is clearly demonstrated that the policy framed by the State or
its agency/instrumentality and/or its implementation is contrary to public
interest or is violative of the constitutional principles, it is the duty of the Court
to exercise its jurisdiction in larger public interest and reject the stock plea of
the State that the scope of judicial review should not be exceeded beyond the
recognised parameters. When matters like these are brought before the judicial
constituent of the State by public spirited citizens, it becomes the duty of the
Court to exercise its power in larger public interest and ensure that the
institutional integrity is not compromised by those in whom the people have
reposed trust and who have taken oath to discharge duties in accordance with
the Constitution and the law without fear or favour, affection or ill will and
who, as any other citizen, enjoy fundamental rights and, at the same time, are
bound to perform the duties enumerated in Article 51A. Reference in this
connection can usefully be made to the judgment of the three Judge Bench
headed by Chief Justice Kapadia in Centre for P.I.L. v. Union of India (2011) 4
SCC 1.
9
80. Before concluding, we consider it imperative to observe that but for the vigilance of some enlightened citizens who held important constitutional and other positions and discharged their duties in larger public interest and Non Governmental Organisations who have been constantly fighting for clean governance and accountability of the constitutional institutions, unsuspecting citizens and the Nation would never have known how the scarce natural
resource spared by Army has been grabbed by those who enjoy money power and who have been able to manipulate the system.
81. In the result, the writ petitions are allowed in the following terms:
(i) The licences granted to the private respondents on or after 10.1.2008 pursuant to two press releases issued on 10.1.2008 and subsequent allocation of spectrum to the licensees are declared illegal and are quashed.
(ii) The above direction shall become operative after four months.
(iii) Keeping in view the decision taken by the Central Government in 2011, TRAI shall make fresh recommendations for grant of licence and allocation of spectrum in 2G band in 22 Service Areas by auction, as was done for allocation of spectrum in 3G band.
(iv) The Central Government shall consider the recommendations of TRAI and take appropriate decision within next one month and fresh licences be granted by auction.
(v) Respondent Nos.2, 3 and 9 who have been benefited at the cost of Public Exchequer by a wholly arbitrary and unconstitutional action taken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band and who off-loaded their stakes for many thousand crores in the name of fresh infusion of
equity or transfer of equity shall pay cost of Rs.5 crores each. Respondent Nos. 4, 6, 7 and 10 shall pay cost of Rs.50 lakhs each because they too had been benefited by the wholly arbitrary and unconstitutional exercise undertaken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band. We have not imposed cost on the respondents who had submitted their applications in 2004 and 2006 and whose applications were kept pending till 2007.
(vi) Within four months, 50% of the cost shall be deposited with the Supreme Court Legal Services Committee for being used for providing legal aid to poor and indigent litigants. The remaining 50% cost shall be deposited in the funds created for Resettlement and Welfare Schemes of the Ministry of Defence.
(vii) However, it is made clear that the observations made in this judgment shall not, in any manner, affect the pending investigation by the CBI, Directorate of Enforcement and others agencies or cause prejudice to those who are facing prosecution in the cases registered by the CBI or who may face prosecution on the basis of chargesheet(s) which may be filed by the CBI in future and the Special Judge, CBI shall decide the matter uninfluenced by this judgment. We also make it clear that this judgment shall not prejudice any person in the action which may be taken by other investigating agencies under Income Tax Act, 1961, Prevention of Money Laundering Act, 2002 and other similar statutes.
.....................................J.
(G.S. SINGHVI)
.....................................J.
(ASOK KUMAR GANGULY)
New Delhi;
February 02, 2012.
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