JUDGEMENT :

Manish Pitale, J.

. The petitioners are cellular mobile service operators, aggrieved by imposition of one-time spectrum charge in the year 2012 for spectrum held above 6.2 MHz from the year 2008 onwards. The petitioners claim that the respondent Union of India has no power to impose such one-time spectrum charge and that too retrospectively. The petitioners emphasize that neither is such source of power found in the relevant statutory provision i.e. Section 4 of the Telegraph Act, 1885 nor is it found in the license agreements for allocation and use of spectrum executed between the petitioners and the said respondent from time to time.

2. The petitioners claim that such imposition of one-time spectrum charge is, therefore, rendered unsustainable. It is relevant to note that in both the petitions, upon a prima facie view being taken in the matter, this Court had granted interim relief in favour of the petitioners. Upon completion of pleadings and submission of written notes of arguments along with convenience compilation of documents, the petitions are taken up for final hearing and disposal.

3. Rule. Rule made returnable forthwith and with the consent of the learned counsel for the parties, the petitions are taken up for final hearing.

CHRONOLOGY OF EVENTS

4. In the year 1994, the Respondent Union of India, through the Department of Telecommunications, invited participation of private sector enterprises in cellular mobile telephone services. In that context, National Telecom Policy 1994 was formulated and tenders were issued for awarding licenses to private sector enterprises. Pursuant thereto, the petitioners participated in the process and license agreements were executed between the Department of Telecommunications and the petitioners as the cellular mobile service operators. The clauses of the license agreements executed between the petitioners and the Department of Telecommunications were identical and therefore, reference is being made to license agreement dated 29.11.1994 executed between the petitioner Bharti Airtel (petitioner in Writ Petition No.1461 of 2013) and the Department of Telecommunications. The said license agreement consisted of 13 clauses and 4 Schedules i.e. Schedules ‘A’ to ‘D’ pertaining to various aspects of providing cellular mobile telephone services. During the course of discussing the rival submissions, reference will be made to the relevant clauses of the license agreements as well as the Schedules. But, it is relevant to note here that clause 13(ii) reserved a right in the Department of Telecommunications, representing the Union of India, to modify the terms and conditions of the license covered under Schedules ‘A’ to ‘D’ if in the opinion of the authority, it was necessary or expedient to do so in the interest of the general public or for the proper conduct of telegraphs or for security considerations. Schedule ‘C’ contained clauses pertaining to license fee, which was fixed as per clause 19.1 and also the necessity of taking a separate license as per the Wireless Planning and Co-ordination (WPC) Wing of the Ministry of Communications under clause 20.1 onwards of Schedule ‘C’. Thus, the petitioners were required to pay a fixed license fee and also a separate amount towards royalty for use of spectrum as per the terms and conditions specified by the WPC Wing. It is relevant to note that the rates were fixed and they were not on revenue share basis.

5. In the year 1999, the respondent framed a new policy i.e. National Telecom Policy, 1999 (NTP-99). The respondent was required to frame the said new policy in the year 1999, upon realizing that the objectives of the Telecom Policy of the year 1994 could not be achieved and that the exercise of privatization had not achieved entirely satisfactory results. It was found that despite rolling out of the cellular mobile networks in Metros and States, the operators, like the petitioners, found that the actual revenue realized by the projects was far s