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2015 (5) TMI 1179 - SC - Indian LawsGrant of licence and allotment of spectrum - National Telecom Policy-2012 - retrospectivity of the policy - Held that:- We assume for the sake of argument that the impugned decision of the Union of India is in fact contrary to the tenor of the policy statement dated 15.02.2012. Even then, in our view, the impugned action cannot be faulted because the policy statement insofar as it seeks to apply only for the allocation of spectrum in future would be contrary to the decision of this Court in 2G case and void to that extent. An analysis of the scheme of Section 11 of the TRAI Act is necessary. Section 11(1)14 imposes two legal obligations on TRAI. Under Sub-section (a) TRAI is obliged to make recommendations with respect to eight matters enumerated therein either suo motu or on a request of the LICENSOR. Under Sub-section (b), TRAI is obliged to discharge various functions numbering nine specified thereunder - We do not propose to examine the submission of learned Solicitor General that the recommendation of TRAI dated 15.10.2014 relied upon by the LICENSEES are primary recommendations, are not final. Even assuming for the sake of arguments that the recommendations of TRAI are final, the Government of India is not bound by the same in view of the first proviso to Section 11(1) of TRAI Act. The obligation of the Government of India arising under the second proviso thereof to seek opinion of TRAI is only to ensure that there is a rational process of decision-making where the factors relevant are examined by an expert body before the Government takes a final decision on any one of the matters enumerated Under Section 11(1)(a). The impugned decision of the Government, which in fact resulted in huge inflow of revenue in the auctions conducted during the pendency of this litigation, cannot be said to be a totally irrational or irrelevant consideration in the context of the spectrum management. In the case in hand, the LICENSEES are not compelled to pay any specific tariffs fixed by the LICENSOR (Union of India), for availing the right to use the spectrum. If the price for securing allocation of spectrum is likely to go up because of the procedure of auctioning to have access to spectrum, it goes up because of the market forces. Because there are people who are willing to acquire such a right paying a higher price on the assessment that they would be able to carry on the business profitably even after paying higher amounts for acquisition of spectrum. The LICENSEES are corporate houses with enormous economic power, which enables them to secure adequate expert advice in the matter of financial planning. We cannot believe that they would make any investment without making a reasonable assessment of the possible return on such investment. There is no compulsion by the State in this regard. This is clearly a matter of an economic policy entailing an intricate economic choice and the Court lacks necessary expertise to make such choice - Therefore, the submission of the LICENSEES is required to be rejected. Petitions and appeals dismissed.
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