(1.) W.P. (C) No. 423/2010 titled Centre for Public Interest Litigation and Ors. v. Union of India and Ors. and W.P. (C) No. 10/2011 titled Dr. Subramanian Swamy v. Union of India and Ors. filed for quashing the licences granted to the private Respondents and the spectrum allotted to them were allowed by this Court vide judgment dated 2.2.2012, paragraph 81 of which reads thus:
81. In the result, the writ petitions are allowed in the following terms:
(i) The licences granted to the private Respondents on or after 10.1.2008 pursuant to two press releases issued on 10.1.2008 and subsequent allocation of spectrum to the licensees are declared illegal and arc quashed.
(ii) The above direction shall become operative after four months.
(iii) Keeping in view the decision taken by the Central Government in 2011, TRAI shall make fresh Order dated February 15, 2013 in I.A. No. 11 of 2012 in W.P. (C) No. 423 of 2010 with W.P. (C) No. 408 of 2012 and W.P. (C) No. 415 of 2012. recommendations for grant of licence and allocation of spectrum in 2G band in 22 Service Areas by auction, as was done for allocation of spectrum in 3G band.
(iv) The Central Government shall consider the recommendations of TRAI and take appropriate decision within next one month and fresh licences be granted by auction.
(v) Respondent Nos. 2, 3 and 9 who have been benefited at the cost of Public Exchequer by a wholly arbitrary and unconstitutional action taken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band and who off-loaded their stakes for many thousand crores in the name of fresh infusion of equity or transfer of equity shall pay cost of Rs. 5 crores each. Respondent Nos. 4, 6, 7 and 10 shall pay cost of Rs. 50 lakhs each because they too had been benefited by the wholly arbitrary and unconstitutional exercise undertaken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band. We have not imposed cost on the Respondents who had submitted their applications in 2004 and 2006 and whose applications were kept pending till 2007.
(vi) Within four months, 50% of the cost shall be deposited with the Supreme Court Legal Services Committee for being used for providing legal aid to poor and indigent litigants. The remaining 50% cost shall be deposited in the funds created for Resettlement and Welfare Schemes of the Ministry of Defence.
(vii) However, it is made clear that the observations made in this judgment shall not, in any manner, affect the pending investigation by the CBI, Directorate of Enforcement and other agencies or cause prejudice to those who are facing prosecution in the cases registered by the CBI or who may face prosecution on the basis of chargesheet(s) which may be filed by the CBI in future and the Special Judge, CBI shall decide the matter uninfluenced by this judgment. We also make it clear that this judgment shall not prejudice any person in the action which may be taken by other investigating agencies under Income Tax Act, 1961, Prevention of Money Laundering Act, 2002 and other similar statutes.
Thereafter, other interlocutory applications were filed on behalf of the Union of India, the writ Petitioners and the Respondents. I.A. No. 5 of 2012 filed by the Union of India in W.P. (C) No. 423/2010 for grant of permission to conduct the auction was disposed of vide order dated 24.4.2012, which reads as under:
I.A. No. 5 in Writ Petition No. 423/ 2010.
This is an application by the Union of India for clarification of judgment dated 2.2.2012 and for grant of permission to conduct the auction as per the time schedule set out in Annexure P1 enclosed with the application.
We have heard the learned Attorney General and carefully perused the averments contained in the application.
In our view, it will be just and proper to partially accept the prayer made in the application and extend the time fixed by the Court up to the end of August, 2012.
Accordingly, the application is disposed of in the following terms:
1. The time specified in judgment dated 2.2.2012 in Writ Petition No. 423 of 2010 and Writ Petition No. 10 of 2011 for conducting the auction for grant of fresh licenses and allocation of spectrum is extended up to 31.08.2012. This would necessarily mean that the applicant shall have to finalise the auction on or before 31.08.2012.
2. The existing licenses shall be entitled to continue to operate till 07.09.2012.
(2.) I.A. No. 8/2012 filed by the Union of India for extension of time to complete the auction was disposed of vide order dated 27.8.2012, the relevant portions of which are extracted below:
I.A. No. 8 of 2012 in WP(C) No. 423 of 2012
This application has been filed on behalf of the Union of India with the following substantive prayers:
(a) Pass appropriate orders that the Applicant may conduct the auction process in accordance with the time line set forth in Annexure A-4 hereto to facilitate the commencement of actual auction of spectrum on or before 12.11.2012;
(b) Pass appropriate orders that following the completion of the auction, the applicant may complete the further process of allocation of spectrum and grant of licences in a further period of 40 days.
In paragraphs 2 and 10 of the application, the following averments have been made:
2. At the outset, it is respectfully stated that the Applicant is fully and irrevocably committed to the implementation of the judgment and orders of this Hon'ble Court.. As set forth more fully below, it is respectfully submitted that the Applicant has already taken several steps and is taking further steps necessary with due dispatch and in accordance with the legal and regulatory framework to ensure the prompt implementation of the orders of this Hon'ble Court and for the expeditious conduct of the auction for the purpose of grant of fresh telecommunications licenses and spectrum as directed by this Hon'ble Court.
10. It is therefore respectfully reiterated that the Government of India is fully and irrevocably committed to complying with the directions of this Hon'ble Court as contained in the judgment dated 2.2.2012 and the order dated 24.4.2012 by the conduct of an auction that is fair and impartial. The Applicant would like to bring to the kind notice of this Hon'ble Court that in order to meet the objectives of the auction, sufficient time needs to be given to the auctioneer so that it can carry out all the required steps for the auction in an appropriate manner. At the same time, enough time needs to be given to the bidders to enable them to take ail necessary steps to participate effectively in the auction including for raising funds/ resources, obtaining internal approvals etc. Only if sufficient time is provided in respect of the above, effective participation and proper discovery of market price of spectrum would result. In the absence of adequate time, the objectives laid down by this Hon'ble Court for allocating spectrum through auction at market prices may not be fully achieved and the Government of India revenues may be impacted adversely."
In compliance of the direction given by this Court on 24.8.2012, Shri R. Chandrashekhar, Secretary, Department of Telecommunications, Government of India, Sanchar Bhawan, New Delhi filed affidavit dated 24.08.2012, paragraphs 1 and 2 of which read as under:
1. I am fully conversant with the facts of the case and I am filing this affidavit, availing the permission granted by this Hon'ble Court on Friday the 24th August, 2012 to give a firm and irrevocable undertaking that the judgment of this Hon'ble Court dated 2.2.2012 in Writ Petition (C) No. 423 of 2010, Centre for Public Interest Litigation and Ors. v. Union of India and Ors. is being implemented and will be implemented fully, faithfully and as expeditiously as possible.
2. As already stated in para 2 at page 2 and in para 10 at page 8 of I.A. No. 8 of 2012 filed on 09.08.2012, the Central Government is firmly and irrevocably committed to implement the aforesaid judgment. The Presidential Reference has nothing to do in so far as implementation of the aforesaid judgment of this Hon'ble Court which has become final and binding is concerned.
We have heard Shri P.P. Rao, learned senior counsel appearing for the applicants, Sarva Shri Harish N. Salve, Dr. A.M. Singhvi and Mukul Rohatgi, learned senior counsel appearing for the applicants in other interlocutory applications, Shri Prashant Bhushan, learned Counsel for the writ Petitioner and Dr. Subramanian Swamy, who had appeared in the connected petition which was decided on 02.02.2012.
Shri P.P. Rao emphasised that the Government of India is committed to comply with the direction given by the Court on 2.2.2012 for conducting auction for grant of licenses and allotment of spectrum. He submitted that the auction will start on 12th November, 2012 and sufficient time will be required for completing the same. S/Shri Harish Salve and Dr. A.M. Singhvi submitted that if the Court is inclined to entertain the prayer made on behalf of the Union of the India then the tenure of the permission granted to the existing licensees to continue to operate may be extended.
Shri Prashant Bhushan and Dr. Subramanian Swamy opposed the prayer made on behalf of the Union of India and submitted that the applicants are deliberately delaying implementation of the direction given by the Court so that the persons whose licenses were cancelled by the Court may continue to operate.
We have considered the respective submissions. In view of the undertaking given by the applicants to faithfully implement the direction given by the Court, which is also reflected in the affidavit of Shri R. Chandrashekhar, Secretary, Department of Telecommunications, Government of India, we deem it proper to accept the prayer made in the application to the extent of allowing time to the applicants till 11.01.2013 for conducting and completing the auction in terms of the direction given by this Court on 2.2.2012.
List all the IAs on 12.1.2013 for further consideration.
If the applicants fail to complete the auction by 11.01.2013, the Court will be constrained to suo motu initiate proceedings against the concerned officers and authorities under the Contempt of Courts Act, 1971 read with Article 129 of the Constitution and may also impose exemplary costs on the applicants.
With a view to ensure that the auction proceedings are not impeded by any judicial intervention, we direct that no Court in the country shall entertain any suit, petition or application or any other action/proceeding involving challenge to the auction being conducted pursuant to the directions given by this Court and no Court or authority shall pass any interim order which may directly or indirectly impede the process of auction.
The existing licensees shall be entitled to continue to operate till 18.01.2013.
(3.) On 28.09.2012, I.A. No. 11/2012 was filed on behalf of the Vodafone Essar South Limited and another for issue of a direction to the Department of Telecommunication to put the whole spectrum to auction. That application was adjourned on 9.11.2012 to enable the learned Additional Solicitor General to seek instructions from the concerned authority and file an affidavit on the issue of total compliance of paragraph 81(iii) of judgment dated 2.2.2012. On 19.11.2012, the hearing of I.A. No. 11/2012 was again adjourned for filing of appropriate affidavit on behalf of the Union of India. The case was once again adjourned on 27.11.2012 to enable the learned senior counsel appearing for the Union of India to inform the Court whether the Government had taken any decision other than the one contained in Press Note dated 29.1.2011, to which reference has been made in paragraph 61 of judgment dated 2.2.2012.;