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IN THE HIGH COURT OF BELHI AT NEW DELHI
+ W.P.(C) 1186/2013 & CMNos. 2242-2244/2013
VODAFONE MOBILE SERVICE LTD AND ORS Petitioners
Tlirough: Dr. Abhishek Manu Singhvi & Mr
Maninder Singh, Sr. Advs. with Mr Manjul Bajpai, Mr Tarun Gulati, Mr Shashwat Bajpai, Mr
Sarvajeet Kumar Thakur & Mr L. Nidhiram
Sharma, Advs.
Through: Mr A.S. Chandhiok, ASG with Ms
Maneesha Dhir, Mr Ritesh Kumar & Mr Sidharth
Tyagi
H- W.P.(C) 1187/2013 & CMNos. 2245-2246/2013
BHARTIAIRTEL LTD AND ANR Petitioner
Through: Mr Soh J. Sorabjee & Mr P.S.
Narasimha, Sr. Advs. with Mr Gopal Jain, Mr
Kunal Kaul, Mr R. Vishal Dass, Mr Atul Menon, Mr Sriram Paraldcat & Mr Aman Avinav, Advs.
Tyagi
-t- W.P.(C) 1188/2013 & CMNos. 2247-2248/2013
LOOP MOBILE (I) LTD Petitioner
WP(C) Nos.1186/2013,1187/2013 &1188/2013
2013:DHC:7137
Through: Mr Gopal .Tain, Mr Yoginder Handoo &
Mr Manish Shukla, Adv.
Tyagi
% 22.02.2013
ORDER
1. Issue notice. ^ 2. Ms Dhir accepts notice on behalf of the respondent in each of the captioned writ petitions.
3. With the consent of counsels for the parties tlie writ petitions are taken up for final hearing anddisposal.
4. The captioned writ petitions raise a common issue. In other words, though the grievance is substantially the same, the prayers, while having the same impact, are worded differently, in each of the petitions. The senior counsels who appeared before me, in sum and substance, projected an identical grievance, which I proposeto detail out hereinbelow: I 5. The petitioners pursuant to a tender held in 1994-95, were granted Cellular Mobile Telephone Service (CMTS) licences by the Department of Tele Communication (in short DoT). It is pertinent to note at this stage itself, tliat it is the case of the petitioners before me that with the issuance of license they were allocated a spectrum in the 900 MHz band. WP(C) Nos. 1186/2013,1187/2013 & 1188/2013 >
6. The petitioner inwrit petition no. 1187/2013 (hereinafter refen'ed to as Bharti) was granted a license for sei-vice areas in Delhi and Kolkata. While thepetitioner in WP(C) No. 1188/2013 (hereinafter referred to as Loop) was issued licenses for service area in Mumbai. The writ petitioner in WP(C) 1186/2013 (hereinafter refen'ed to as Vodafone) was issued licenses for the Delhi Mumbai and Kolkata service areas.
7. It appears that the respondent on 11.11.2003 introduced guidelines • whereby, the Unified Access Service (UAS) licensing regime was brought' into play. Under the said guidelines,cellular operators were given the option to migrate from the existing CMTS licenses to the UAS license regime. It is not.disputed that each of the petitioners before me, i.e., Bharti, Loop and ^ Vodafone migrated to the UAS license regime. Importantly, the UAS license regime enables the licence holders to offer a range of telecom services under one license.
8. Apparently, on 11.05.2010,TRAI submitted its recommendations on SpectiTim Management and Licensing Framework. As part of its recommendation, it was suggested by TRAI that existing UAS licenses ought to be renewed for a period of ten'(lO) yeai's at a time, as per the existing licensing regime.
9. Interestingly, DoT on 10.10.2011/03.11.2011, referred the aforementioned recommendations to TRAI for reconsideration. Evidently, one of the aspects which DoT desired TRAI to re-examine was to substitute the word 'rai^H^^/'appearing in clause 4.[1] of the licences issued to the petitioners herein, with the word 'extension'. This suggestion of DoT was evidently accepted by TRAI. WP(C) Nos. 1186/2013,1187/2013 &1188/2013
10. Taking a cue from the aforesaid development, at least one of the petitioner's, i.e., Vodafone, wrote to DoT that the license issued to it, would include, the Specti-um and that the extension of license was provided for in clause 4.[1] of the license.
11. While the aforesaid request, was perhaps under deliberation, the Supreme Court vide its judgment dated 02.02.2012 passed in WP(C) NO. 423/2010 entitled Centre for P.l.L &Ors. Vs UOI and Or^.cancelied all licenses in the Spectrum allocated pursuant to the two press releases dated 10.01.2008.
12. Consequently, pursuant to consultation with TRAI, and based on its recommendation, the respondent conducted an auction qua the Spectrum ^ which was subject matter of the judgment of the Supreme Court dated 02.02.2012. It is not disputed before me by learned counsels appearing for parties that the Supreme Court dealtwith the Spectrum in 800 MHz and 1800 MHz bands.
13. Evidently, the respondent on 21.01.2013, much to the consternation of the petitioners herein, issued guidelines for auctioning the spectrum in the 900 MHz band which, according to them, stands allocated to them, upon issuance of licenses in their favour.
14. Consistent with the stand taken by the respondent, that they intended v) to auction the Spectrum in 900 MHz as well, a Notice Inviting Applications (NIA) was issued on 30.01.2013. The last date for filing applications under theNIA expires today, i.e., 22.02.2013.
15. It appears tliat, in the inteiTegnum, the petitioners herein have filed their representations with the respondent for extension of the licenses which expire, in November, 2014. In the case of Bharti, the application was filed WP{C) Nos. 1186/2013,1187/2013 & 1188/2013 b on 29.01.2013. In the caseof Loop, the application was made on 11.05.2012, with-a reminder issued on 26.12.2012. Similarly, in the case of Vodafone the application appears to have been made on 24.01.2013. Admittedly, these applications are pending consideration with the respondent.
16. In order to complete the nan*ative, it may also important to mention that the Supreme Court vide its order dated 15.02.2013 passed in lA NO. 11/2012 in WP(C) No. 423/2010,clarified that allotment of spectrum in 900 MHz band was not a subject matter of their judgment dated 02.02.2012, and that, the said judgment, would have no bearing on litigation filed qua allotment/ re-allotment of spectmm in 900 MHz band. The Supreme Court further clarified that competent judicial/quasi-judicial forum would be free to ^ adjudicate upon apending matter or matters which may be fded hereafter in relation to allotment of spectrum in 900 MHz band as well as in respect of "connected issues".
17. As per thetimeschedule laid down in theNIA,the first auction qua the spectrum in the bandof 1800 MHz/900 MHz is to commence on 11.03.2013.
18. It is in the background ofthe aforesaid facts and circumstances that the petitioners have approached this courtby way of a writ petition under Article 226 of the Constitution of India.
19. The petitioners were represented by Dr. A.M. Singhvi, Mr Sole '\5 Sorabjee, learned senior counsels and Mr Gopal Jain, Advocate,while the respondents were represented by Mr A.S. Chandhiok, Addl. Solicitor General instructed by Ms Maneesha Dhir, Advocate. The submissionson behalf of the petitioners were more of less common and, therefore, broadly proceeded on the following lines. WP(Cl Nos. 1186/2013,1187/2013&1188/2013 Page 5 of10
(i) the issuance of license was inextricably linlced witli the allocation of thespectrum to tlie petitioners inthe900 MHz band;
(ii) the withdrawal of the spectrum would effectmillions of mobile subscribers and, in particular,effect services offered in semi-urban, rural and remote areas;
(iii) the petitioners had invested thousands of crores of rupees in setting up infrastructure, and thus were invested with not only a contractual right in their favour,but also had a legitimate expectation for extension of license and tlie continued use of the spectrum in the 900 MHz band;
(iv) tlie conscious use of the word 'extension' in clause 4.[1] of the license, executed between the petitioners herein and the respondent, gave the petitioners a higher right than if the word usedin the said clause was 'renewal'. It is because of this, that the parties to the license agreement, ai'e not required to execute a fresh license as extension of the license on mutually agreed terms would be a necessary consequence of the extension clause, i.e., clause 4.[1] of the license agreement;
(v) the use of the word 'may' in clause 4.1, which apparently gives the discretion to the licensor (i.e., the respondent herein)to extend the period of license on terms mutually agreed, if deemed expedient, for a period of ten years at a time upon the request of the licensee, (i.e., the petitioners herein) would, first of all envisage an effective consultation amongst parties,and secondly, given the investment and other attendant circumstances obtaining in the matter, ought to be read as 'shall' - in effect resulting in an automatic extension unless very WP(C) Nos.1186/2013,1187/2013 &1188/2013 strong reasons and circunistancies are made out,for"denying the request made for extension;
(vi) the issuance of licenses to each of the petitioners had created a vested right in them, to seek extension which could not be taken away by a statute (unless made specifically retrospective) much less by a guideline/executive order;
(vii) the policy formulated by the respondent to de-link spectrum from licenses issued,on their own showing,operates mfiiiuro. Therefore, the respondents could not be permitted to auction the spectmm in the 900 MHz band till such time it decides the fate of its applications, whereby the petitioners sought extension ofthe license period;
(viii) the respondents are thus required to decide the pending applications, after affording due opportunity to the petitioners to present their case; and
(ix) lastly, the petitioners had won their respective licenses after going through a transparent process of competitive bidding; the exploitation of which has resulted in enormous benefits to the respondent inler alia by way of taxes etc.; 9.[1] In support of various contentions raised above, reliance was placed on the following judgments of the Supreme Court: Hardesh Ores (P) Ltd vs Hede & Company (2007) 5 SCC 614; Ram Pvavesh Singh & Ors. vs State ofBihar & ors. (2006) 8 SCC 381; Dinkar Anna Patil & Anr. V[5] State of Maharashtra & Ors. (1999) 1 SCC 354 and State of Haryana V[5] Ram Kishan & Ors. (1988) 3 SCC 416.
20. On the other hand Mr A.S. Chandhiok, learned ASG, submitted that no case was made out by the petitioners to interdict the process of auction set WP{C) Nos. 1186/2013,1187/2013 &1188/2013 forth by the respondent. The learned ASG submitted that the petitioner were aware that the respondent intended to auction inter alia the spectrum in the 900 MHz as far back as on 22.01.2013, when guidelines qua the auction were issued. In this behalf he also drew my attention to the fact that the NIA was issued on 30.01.2013, which in terms of clause 1.[4] of the NIA,laid down a time schedule, for those, who were interested in participating in the auction.
21. Mr Chandhiok, mostvehemently submitted that the petitioners bytheir communication dated 21.12.2012 had themselves, indicated that they were "willing to pay a market determined price discovered through a fair and successful auction for extension of their licenses". In view of this communication, Mr Chandhiok submitted that the entire challenge to the guideline and the NIA issued to auction the Spectrum in the 900 MHz band, was clearly an after-thought.
22. In rejoinder, the leai'ned counsel for the petitioners contested the position taken by the learned ASG. In particular, it was submitted that their grounds forchallenging the impugned guideline weremultifarious though for the present moment they had confined themselves to the submissions made hereinabove, and, therefore, had sought leave of this court to give liberty to approach this court qua grounds which were not agitated before the court. This last submissionwas, in particular,made by Dr.Singhvi who appeared for Vodafone in WP(C) 1186/2013.
23. Having heard the learned counsels for the parties for quite some time and upon perusal of the record with the assistance for the counsels for the.parties, I am of the opinion that in the facts of circumstances of this case it would be incumbent on the respondent to deal with'and consider the pending applications of the petitioners with regard to their request for extension of WP(C) Nos. 1186/2013,1187/2013 & 1188/2013 tlieir respective licenses in terms of clause 4.[1] of the license. This exercise will necessarily have to be done in the shortest possible time as the first auction is slated to be held on 11.03.2013. This aspect was put to the learned ASG, who quite fairly and candidly responded that he would have no difficulty if this court were to direct the respondent to decide and dispose of the applications ofthe petitioners pending with the respondent.
24. Having regard to the fact that the deadline for filing applications pursuant to the NIA was expiring today, i.e., 22.02.2013, I had put to the learned counsel for the petitioners as to whether they would like to file their applications, without prejudice to their rights and contentions. Each of the learned senior counsels appearing for the petitioners declined to travel tlie * said path, and instead,indicated that they would be quite satisfied ifthis court were to directthe respondent to considertheir pending applications.
25. Accordingly, I deem it fit to dispose of the writ petitions with the following directions:
(i) The respondent shall dispose of the pending applications of the petitioners qua tlieir request for extension of their licenses in terms of clause 4.[1] ofthe license.
(ii) The respondent shall in this behalf give due opportunity to the representatives of the petitioners to present their case before the V concerned officer. Forthis purpose, notice in writing would be issued to eachof thepetitioners informing them of the date, time and venue at which they could present themselves through their representatives. fV (iii) The order disposing ofthe applicationtwill contain reasons. WP(C) Nos. 1186/2013,1187/2013 &1188/2013 Page 9of 10
(iv) The exercise in this behalfwill be completed on or before 07.03.2013.
The decision taken will be communicated to the petitioners forthwith by post and email. In case the decision taken on the petitioners' applications is adverse to their interest, they will have the liberty to take recourse to an appropriate remedy, which may be available to them, in accordance with law. With the aforesaid directions in place, the captioned writ petitions and all pbnding applications, as indicated above, are disposed of making it clear that by this order I have adverted only to the submissions ma,de before me today, by the learned counsels for the parties. The parties shall, however, bear their own cost. Dasti to parties under the signatures ofthe court master. (V)
26.
FEBRUARY 22, 2013 kk Cu RAJlV SHA.KDHER, J ^(2 uiIS) 'ii\