IMPORTANT POINTS
Neither LICENSOR nor LICENSEE has a right to extension of the contract.
Adequacy of compensation sought to be derived by Government of India by holding an auction for allowing access to spectrum is just and fair.
Adjudication without concrete facts and figures, only on some hypothetical basis is neither permissible nor justified.
It is not in the domain of the court to consider likely effect of hike in tariff for consumers.
“If deemed expedient” means “whatever is suitable and appropriate for any reason for the accomplishment of the specified object”.
Licensor’s obligations flow, apart from the contract, from the Constitution and the laws which prevail over the terms and conditions of the contract.
Recommendations of TRAI are not binding on Government of India.

Headnote:(a) Indian Telegraph Act, 1885 – Section 4(1) – License granted under Section 4(1) of the Telegraph Act such as the one granted to each of the LICENSEES – Is a contract between the LICENSOR and the LICENSEE – Extension of the contract not automatic – At the discretion of the LICENSOR – Extension at ‘mutually agreed terms’ – Neither LICENSOR nor LICENSEE has a right to extension of the contract. (Para 35, 37, 39, 41)
       (2011) 10 SCC 543; (2004) 11 SCC 26; (1975) 1 SCC 737; (1975) 2 SCC 633 – Relied upon
       (b) Indian Telegraph Act, 1885 – Section 4, Proviso – Licenses for Telegraph lines including wired and wireless – In the nature of largesse from the State – Subject to compliance with Article 14 – Based on some rational policy and non-discriminatory payments – Extension of license on mutually agreed terms – Government of India obliged to do so only “in public interest and for public good” – Supreme Court obliging Government of India to adopt “duly publicized auction conducted fairly and impartially” – a Conditions of licences/contracts necessarily required to be interpreted in consonance with the obligation of the LICENSOR/Union of India under the Constitution and the laws – Adequacy of compensation sought to be derived by Government of India by holding an auction for allowing access to spectrum is just and fair in the circumstances. (Para 46, 48, 51, 52, 53)
       (2012) 3 SCC 1 – Relied upon
       © Administration of justice – Adjudication – Without concrete facts and figures – Only on some hypothetical basis – Neither permissible nor justified. (Para 55)
       (d) Indian Telegraph Act, 1885 – Section 4, Proviso – Government seeking adequate compensation by auction – Likely effect of hike in tariff for consumers – It is for the Government to consider in its policy choices – Not in the domain of Court. (Para 56)
       (e) Words and Phrases – Spectrum Licence – Clause 4.1 – “If deemed expedient” – Means “whatever is suitable and appropriate for any reason for the accomplishment of the specified object”. (Para 57)
       (2002) 4 SCC 1 – Relied upon
       (f) Indian Telegraph Act, 1885 – Section 4, Proviso – Extension of Licence – Contention that extension should be based on quality, affordability, reach of the services provided by the petitioner and the investments made by it during the initial 20 year period, being satisfactory – Licensor’s obligations not flowing from the contract only – Such obligations also flowing from the Constitution and the laws – Contention rejected. (Para 58)
       (g) Indian Telegraph Act, 1885 – Section 4 – Government deciding to allocate spectrum by conducting an auction – Policy statement dated 15.02.2012 only for allocation of spectrum in future – Contention that the decision is contrary to the policy statement – The policy statement contrary decision in (2012) 10 SCC 1 – Therefore the decision to auction spectrum cannot be faulted. (Para 72)
       (2012) 3 SCC 1 – Relied upon
       (2012) 10 SCC 1 – Referred
       (1986) 4 SCC 198 – Distinguished
       (h) Telecom Regulatory Authority of India Act, 1997 – Section 11(1) – Recommendations of TRAI – Not binding on Government of India in view of the first Proviso – Second Proviso obliges Government to consult TRAI only in case of new licenses, not extension/renewal. (Para 75, 76)

       Facts of the case:
       Each of the appellants or the petitioners, as the case may be, in these matters is a licensee holding a licence granted under Section 4 of the Indian Telegraph Act, 1885 for providing TELEGRAPH services in the various earmarked service areas.
       Pursuant to the judgment in 2G case, the Union of India took steps to conduct an auction of the 900 MHz band and 1800 MHz band insofar as they pertain to the certain operators whose licenses were coming to an end in 2014.
       Each of the LICENSEES herein hold licences for different service areas. It appears from the impugned order of the TDSAT dated 31.01.2014, which is a common order in the four petitions filed by four different LICENSEES (Vodafone Mobile Service Ltd., Loop Mobile India, Bharti Airtel Ltd. & Idea Cellular Ltd.). Some of the LICENSEES hold Cellular Mobile Telephone Service licence (CMTS licence) while others hold Unified Access Service license (UAS licence). Both the classes of licences stipulated that the licences are valid for a period of 20 years and provide that the Licensor may extend the period of licence for another 10 years subject to certain conditions specified in the licence.
       Whether the minor variations in the language employed by the LICENSOR make any difference in the context of the right of the LICENSEES to seek an extension of a licence is one of the aspects which is required to be examined in this case.
       Since both the classes of licences contemplate seeking of an extension by the LICENSEE during the 19th year of the currency of the licence, the LICENSEES approached the Government of India seeking an extension/renewal of their licences. Alleging that there was no response from the Government of India, some of the LICENSEES went to the Delhi High Court filing writ petitions seeking appropriate directions to the Government of India. The said writ petitions were disposed of directing the Government of India to dispose of the applications of the writ petitioners within a stipulated time frame. The High Court also observed that in the event of the Government of India’s decision going adverse to the interest of the petitioners, the petitioners would be “at liberty to take recourse to appropriate remedy”.
       Pursuant to the directions of the Delhi High Court, the applications of the petitioners were considered and rejected by the Government of India on different dates.
       The LICENSEES approached the TDSAT. Their petitions were dismissed. Hence, the appeals under Section 18 of the TRAI Act. Some of the LICENSEES approached Supreme Court directly without going to the TDSAT by filing writ petitions.
       Finding of the Court:
       Action of the Government in auctioning the spectrum cannot be faulted.
       Result: Appeals dismissed.

Judgment

Chelameswar, J.

1. These five civil appeals under Section 18 of the Telecom Regulatory Authority of India Act, 1997 (hereinafter referred to as the “TRAI Act”) and three writ petitions raise common questions. Each of the appellants or the petitioners, as the case may be, in these matters (hereinafter collectively referred to as ‘LICENSEES’) is a licensee holding a licence granted under Section 4 of the Indian Telegraph Act, 1885 for providing TELEGRAPH services in the various earmarked service areas.

2. It appears from the judgment of this Court in Centre for Public Interest Litigation & Others v. Union of India & Others, (2012) 3 SCC 1, hereinafter referred to as 2G case, that the first telegraph link in India was experimented in 1839 between Calcutta and Diamond Harbor separated by a distance of 21 miles. By an act of the British Parliament, known as the Indian Telegraph Act, 1885, the privilege of “establishing, maintaining and working of telegraphs” within the territory of British India was exclusively conferred under Section 4 upon the Central Government – an expression which bore different meanings at different points of time in this country, the details of which may not be necessary for the purpose of this case. However, proviso to the said section enabled the Central Government to licence any person to exercise the privilege which is otherwise exclusive to the Central Government.

3. The advancement of technology made wireless communication {Section 2.(1) ‘wireless communication’ means any transmission, omission or reception of signs, signals, writing, images and sounds, or intelligence of any nature by means of electricity, magnetism, or Radio waves or Hertzian waves, without the use of wires or other continuous electrical conductors between the transmitting and the receiving apparatus;} possible which led to the enactment of the Indian Wireless Telegraphy Act, 1933.

4. On 28th January, 1882, Major E. Baring, Member of the Governor General’s Council declared open three telephone {Alexander Graham Bell is commonly credited with the invention of telephone. He obtained a patent in 1876 for an apparatus for transmitting vocal or other sounds electrically. There is some controversy as to who was the real inventor of telephone. There is a very strong claim by an Italian scientist called Antonio Meucci. A resolution was passed by the United States House of Representatives in 2002 recognising that Meucci did pioneering work on the development of telephone and “if Meucci had been able to pay $ 10 fee to maintain a caveat after 1874, no patent could have been issued to Bell”.} exchanges in Calcutta, Bombay and Madras, marking the beginning of telephone communications in India. Over the next 133 years, there has been a mind boggling advancement in the telecommunication technology. Strangely, there is no enactment in this country dealing with the establishment and working of telephones. The 160 year old telegram system in this country was officially closed on 14th July, 2013. Ironically, the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, 1933 still continue on the statute book. By virtue of the various amendments made from time to time, these two enactments still continue to govern the entire activity of establishment, maintenance and working of telephones and various other telecommunication services.

Electromagnetic Radiation -Waves -Frequencies Spectrum

5. ‘Electromagnetic (EM) radiation is a phenomenon which occurs in the universe. Sunlight is a familiar example of EM radiation. So is the light from stars. EM radiation travels in waves at different frequencies. Frequency of a wave and its length are inversely proportional. Generally, EM radiation is classified on the basis of wavelength into radio wave, microwave, terahertz (or sub-millimeter) radiation, infrared, the visible region is perceived as l

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2015 Supreme(SC) 439

Cases Referred (8)