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2016 (4) TMI 1312 - SC - Indian LawsVoice telephony - 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. Held that - it follows that a policy decision was taken by the Government not only with regard to introduction of Unified Licensing regime but it also including allowing migration to UL from UASL as well as ISP to UL regime. This meant that those having UAS license which permitted data services only were allowed to migrate to Unified License enabling them to provide both data service as well as voice telephony. This was a pure policy decision after due deliberations by the experts in the fields and even TRAI had recommended allowing such migration - Such a policy decision when not found to be 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. Such a policy decision when not found to be 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. There is one more reason not to interfere with the aforesaid stipulation of SUC. The Government has taken the position that the conditions in the license granted to Respondent No. 2 empower the licenser/Government to change the terms of license and therefore whenever it is felt necessary and expedient in public interest the percentage of SUC can be increased. Petition dismissed.
Issues Involved:
1. Legality of the Government's decision to allow migration from BWA spectrum to Unified License (UL). 2. Alleged undue favor to Respondent No. 2 (Reliance Jio Infocomm Ltd.). 3. Alleged loss of public revenue due to the migration fee and Spectrum Usage Charges (SUC) fixed for Respondent No. 2. Detailed Analysis: 1. Legality of the Government's Decision to Allow Migration from BWA Spectrum to Unified License (UL): The Petitioner, Centre for Public Interest Litigation, challenged the Government's decision to allow migration from BWA spectrum to UL, alleging that the decision was arbitrary, illegal, and against public interest. The Petitioner argued that the license for voice telephony granted to Respondent No. 2 for Rs. 1,658 crores was significantly undervalued compared to the estimated Rs. 25,000 crores. The Petitioner relied on a draft report by the Comptroller and Auditor General of India (CAG) to support its claims. The Government's decision to allow migration was based on recommendations from the Telecom Regulatory Authority of India (TRAI) and was part of a broader policy shift towards a Unified Licensing regime. The Supreme Court noted that policy decisions in the telecommunications sector are often influenced by rapid technological advancements and economic considerations. The Court emphasized that such policy decisions, when not arbitrary, malafide, or contrary to statutory provisions, do not warrant judicial interference. The Court concluded that the decision to allow migration from BWA spectrum to UL was valid and legal, as it was a policy decision made after due deliberations by experts and was recommended by TRAI. 2. Alleged Undue Favor to Respondent No. 2 (Reliance Jio Infocomm Ltd.): The Petitioner alleged that Respondent No. 2 was given an undue advantage by allowing migration from BWA spectrum to UL, thereby enabling it to provide voice telephony services. The Petitioner argued that this amounted to a "back door" entry for Respondent No. 2. The Supreme Court observed that the policy decision to allow migration to UL was applicable to all holders of BWA spectrum and was not specific to Respondent No. 2. The Court noted that the auction of BWA spectrum in 2010 was transparent and fair, and Respondent No. 2 had acquired the spectrum through a legitimate process. The Court held that there was no discrimination or undue favoritism towards Respondent No. 2, as the policy decision was uniformly applicable to all eligible entities. 3. Alleged Loss of Public Revenue Due to Migration Fee and Spectrum Usage Charges (SUC): The Petitioner argued that the migration fee of Rs. 1,658 crores charged from Respondent No. 2 was abysmally low and resulted in a significant loss of public revenue. The Petitioner relied on the CAG's draft report, which estimated a loss of Rs. 22,842 crores due to the undervaluation of the migration fee. The Supreme Court noted that the CAG's draft report was not the final report and that many queries and doubts raised in the draft report were addressed by the Government. The final CAG report revised the estimated loss to Rs. 3,367.29 crores. The Court observed that the migration fee of Rs. 1,658 crores was calculated as the difference in entry fees between UASL and ISP licenses to provide a level playing field. The Court also noted that the BWA spectrum was auctioned at a high price of Rs. 12,847.77 crores, and Respondent No. 2 had paid this amount along with the migration fee. Regarding the SUC, the Petitioner argued that Respondent No. 2 should pay higher SUC rates similar to other operators offering voice telephony. The Government justified the 1% SUC for BWA spectrum based on TRAI's recommendations and the objective of promoting rural development. The Court found that the decision to fix SUC at 1% of AGR was based on relevant considerations and was not arbitrary. The Supreme Court concluded that there was no undue advantage given to Respondent No. 2, and the migration fee and SUC were justified. The Court dismissed the writ petition, finding no merit in the Petitioner's arguments. Conclusion: The Supreme Court upheld the Government's decision to allow migration from BWA spectrum to Unified License, finding it valid and legal. The Court rejected the allegations of undue favor and loss of public revenue, concluding that the migration fee and SUC were justified and based on relevant considerations. The writ petition was dismissed.
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