2016 Supreme(SC) 271

SUPREME COURT OF INDIA
T.S. THAKUR, CJI., A.K. SIKRI, R. BANUMATHI, JJ.
CENTRE FOR PUBLIC INTEREST LITIGATION – PETITIONERS
VERSUS
UNION OF INDIA & ORS. – RESPONDENTS
WRIT PETITION (C) NO. 382 OF 2014
Decided On : 08-04-2016

IMPORTANT POINTS
Distinctive features of 3G spectrum & BWA spectrum noticed.
When no bidder complains about fairness, transparency and as well as about the process of bidding, award to the successful bidder cannot be challenged.
Policy decision not arbitrary or based on irrelevant considerations or mala fide or against any statutory provisions does not call for any interference by the Courts in exercise of power of judicial review.
Decision permitting migration of telecom licenses to UL regime held valid, legal and without any blemish.
When a general policy decision is taken, all concerned may avail of the benefits. No individual can be alleged to have been benefitted unduly.
In case of 3G and BWA auction, licence has been delinked from spectrum.
Respondent no. 2 has not been given back door entry.
SUC for 3G and BWA spectrum has been fixed at 1% on reasonable considerations.

Headnote:(a) Words and Phrases – 3G spectrum & BWA spectrum – 3G spectrum is in Frequency Division Duplex (FDD) mode whereas the Broadband Wireless Access (BWA) spectrum is in Time Division Duplex (TDD) mode – Other distinctive features noted. (Para 11)

       (b) Government auction – BWA spectrum – Auction in 2010 – 11 bidders participating – IBSPL emerging successful in acquiring various BWA frequencies in all 22 service areas across the country – No bidder complaining about fairness, transparency and as well as about the process of bidding – IBSPL becoming successful bidder cannot be challenged now. (Para 13, 14)

       (c) Technological policy – Judicial review – Advancement in Telecommunication technology – Pace of growth necessitates frequent changes in relevant policies – No wonder Telecom Policy announced in 1994 underwent changes in 1999, 2004 and 2012 – Unified Licensing regime – Issuance of licenses and allocation of spectrum delinked – Resulting in migration to UL from UASL as well as ISP to UL regime – Policy to allow those having UAS license which permitted data services only to migrate to Unified License enabling them to provide both data service as well as voice telephony – Policy decision not arbitrary or based on irrelevant considerations or mala fide or against any statutory provisions – Does not call for any interference by the Courts in exercise of power of judicial review – In case of economic policy Courts are more conservative in exercising power of judicial review. (Para 16, 17, 18, 19, 22)

       (d) Administration of Justice – Judicial Review – Scope and intensity – a Grown considerably – Scope has expanded and now extends well beyond the sphere of statutory powers to include diverse forms of 'public' power in response to the changing architecture of the Government – Still, Courts may not interfere merely because they disagree with the decision or action in question – Courts intervene only if some specific fault can be established like, if the decision was reached procedurally unfair. (Para 24)

       (2014) 8 SCC 804; (2000) 10 SCC 664; (2003) 4 SCC 289; (2013) 6 SCC 620; (1978) 3 SCC 459 : AIR 1978 SC 1296 : 1978 Cri LJ 1281; (1992) 2 SCC 343 – Relied upon

       (e) Government Auction – 3G and BWA spectrum – 3G and BWA operating on different spectrum forms – Further, licence is different from spectrum – Award of spectrum not conferring right to provide any telecom services – Providing telecom services governed by licence – NIA requiring an ISP-category 'B' licence to migrate to an ISP-category 'A' licence – Decision permitting migration of telecom licenses to UL regime held valid, legal and without any blemish. (Para 28, 29, 30)

       (f) Government auction – When a general policy decision is taken, all concerned may avail of the benefits – No individual can be alleged to have been benefitted unduly. (Para 31)

       (g) Government auction – Spectrum and telecom services – Licence delinked from spectrum – Even those not having licence allowed to bid for spectrum – Necessitating grant of licence to such successful bidders enabling them to provide telecom services – Required migration of BWA spectrum holders to UL – Respondent no. 2 acquiring BWA spectrum – Becoming eligible to apply for UL – Contention of back door entry of respondent no. 2 rejected. (Para 33)

       (h) Government auction – 3G and BWA spectrum – Policy decision allowing migration from BWA spectrum to UL found to be justified – Migration/grant of UL available at Rs. 15 crores – Respondent no. 2 paying Rs. 1,658 crores – BWA spectrum auction fetching a whopping price of Rs. 12,847.77 crores besides licence fee of Rs. 15 crores – Petitioner basing its case on draft report of CAG – Final report materially different from draft report – Showing draft report to be based on wrong premises of comparing 3G and BWA (4G) spectrum – Contention of wrongful loss to the Government and wrongful gain to respondent no. 2 or that the Government would have fetched much more price rejected. (Para 37, 39, 40)

       (2012) 3 SCC 1 (“2G Case”) – Distinguished

       (2012) 10 SCC 1 – Referred

       (i) Government auction – BWA spectrum – SUC – Other operators offering voice services paying 3% to 8% SUC depending upon quantum of spectrum held by them – Respondent no. 2 acquiring BWA spectrum paying 1% – SUC for 3G and BWA spectrum fixed at 1% on reasonable considerations – Mainly being its use for rural development. (Para 44, 50)

       Facts of the case:

       the petitioner challenges the decision of the Government of India, taken sometime in March 2013, allowing voice telephony to respondent No. 2 (Reliance Jio Infocomm Ltd.) on payment of Rs.1,658 crores entry fee. Allegation of the petitioner is that the aforesaid amount at which the license for voice telephony is granted to respondent No. 2 is a pittance inasmuch as in normal course grant of this license would have fetched a whopping sum of Rs.25000 crores approximately. This insinuation is based upon a draft report of the Comptroller and Auditor General of India (CAG) which report estimated the aforesaid license fee/entry fee. It is also alleged that respondent No. 1, while allowing voice telephony to respondent No. 2, has not revised the Spectrum Usage Charges (SUC) matching with the charges which are paid by other operators who bought voice telephony. It is stated in the petition that whereas the other operators pay 3% to 5% revenue annually depending upon quantum of the spectrum they hold, respondent No. 2 in contrast would be paying just 1% of the revenue. In this way, alleges the petitioner, an undue favour is given to respondent No. 2 by charging abysmally less entry fee and demanding much lesser SUC, thereby causing loss of revenue to the Government over 20 years license period. It has also resulted in disturbance in the level-playing field between respondent No. 2 vis-a-vis other operators. The petitioner has tried to project that unwarranted favouritism is shown to respondent No. 2 and the decision making process, in this behalf, was also not only faulty but in violation of accepted norms as well.

       The subject matter of challenge in the instant writ petition is the conversion of BWA spectrum to Unified License (UL) i.e. migration of existing BWA spectrum to UL which has been done by respondent No.1.

       Finding of the Court:

       Respondent no. 2 has not been given back door entry not allowed undue gain. SUC of 1% is justified.

       Result: Writ petition dismissed.