CENTRE FOR PUBLIC INTEREST LITIGATION Vs. UNION OF INDIA & ORS.
SUPREME COURT OF INDIA
CENTRE FOR PUBLIC INTEREST LITIGATION
Union of India And Ors.
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(1.) The petitioner herein, viz., Centre for Public Interest Litigation, is a society registered under the Societies Registration
Act, 1860. It claims that the very purpose for which this society
was established was to bring causes to the Superior Courts,
which are of grave public importance, by way of public interest
litigation in an organised manner. In the present writ petition filed
under Article 32 of the Constitution of India, 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.
(2.) The factual details leading to the aforesaid allegations are averred in the petition which can be summated in the following
On 25.02.2010, the respondent No. 1 issued Notice Inviting
Applications (NIA) for the auction of:
(i) 3G: Three or 4 blocks each of 5+5 MHz spectrum for 3G services in 2.1 GHz band at a reserve price of Rs. 3,500 crore for a Pan -India license, and
(ii) BWA (4G): Two blocks each of 20 MHz spectrum for BWA services in 2.3 GHz band at a reserve price of Rs. 1,750 crore for a Pan -India license. In respect of BWA (4G), as per the NIA conditions, a bidder could be an existing ISP -A licensee or UAS licensee (or obtain any of these licenses later if successful in the bid), but it can provide only such services which are allowed under the license it chooses. For example, an ISP -A licensee cannot provide voice telephony. In this regard, reliance is placed on the following clause of the NIA:
Clause 3.1.2: "Services can only be offered subject to the terms and conditions of the license obtained by the operator. Award of spectrum does not confer a right to provide any telecom services, and these are governed by the terms and conditions of the license obtained by the operator."
During May -June 2010 the auctions for 3G and BWA were
concluded. The 3G auction fetched Rs. 16,750.58 crore for 5+5 MHz
spectrum in 2100 MHz (or 2.1 GHz) band. Thus, per MHz price worked
out to be Rs. 1,675 crore. This spectrum price bequeathed the rights to
provide both data and voice.
Immediately, after the 3G auction, the BWA auction began which
fetched Rs. 12,847.77 crore for 20 MHz pan -India license in the 2300
MHz (or 2.3 GHz) band. This works out to be Rs. 642.39 crore per
Infotel Broadband Services Pvt. Ltd. (IBSPL) emerged as the only
company to have acquired pan -India BWA spectrum. Five other
companies viz. Bharti Airtel (4 Service Areas), Aircel (8 Sas),
Qualcomm (4SAs), Tikona (5 Sas) and Augere (1 SA) shared the
remaining other Pan India slot (22 Serve Areas) of BWA spectrum in
(3.) It is also averred that IBSPL had an ISP -A license since November 2007 and had just one subscriber with revenue of Rs.
16.28 lakhs during 2009 -10, and its authorized share capital was Rs. 3 crore and the paid up capital was Rs. 2.51 crore. Infotel
Digicomm Pvt. Ltd. (IDPL) held 99.99% share of the IBSPL at the
time of submission of application in March 2010 for the BWA
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