Order dated 25-2-2015
(Before Dipak Misra and Adarsh Kumar Goel, JJ.)
SLPs (C) Nos. 5735-36 of 2015 with TPs (C) Nos. 352-56 and 363 of 2015
SLPs (C) Nos. 5735-36 of 2015
1. Heard in part. Put up for further hearing on 26-2-2015. As agreed to by the learned counsel for the parties, it shall be taken up at 10.30 a.m.
TPs (C) Nos. 352-56 and 363 of 2015
2. These are the petitions seeking transfer of Writ Petition No. 8315 of 2015 from the Allahabad High Court, Writ Petitions (C) Nos. 1383 and 1635 of 2015 from the Delhi High Court and Writ Petition (C) No. 6176 of 2015 from the Karnataka High Court.
3. Mr Rakesh Dwivedi, learned Senior Counsel, has submitted that in the matter pertaining to Allahabad, he can argue the matter over here. Mr E.C. Agrawala, Advocate-on-Record, shall file a complete set of pleadings in the course of day.
4. As far as the writ petitions pending in the Delhi High Court and the Karnataka High Court are concerned, it is submitted by Mr P. Chidambaram, Mr A.S. Chandhoik and Mr Gopal Jain, learned Senior Counsel, appearing for the writ petitioners in the Delhi High Court and the Karnataka High Court that their respective Advocates-on-Record shall file complete set of pleadings in the course of day.
5. In view of the aforesaid, the writ petitions and the special leave petitions, which have been heard in part at length, shall be heard on 26-2-2015, at 10.30 a.m.
6. Mr Ranjit Kumar, learned Solicitor General has submitted that he is prepared to argue the writ petitions, as pure question of law arises.
7. As we are hearing the writ petitions on the consent given by the learned counsel for the parties, the High Courts of Allahabad, Delhi and Karnataka shall not proceed with the writ petitions in the meantime.
Order dated 26-2-2015
(Before Dipak Misra and Adarsh Kumar Goel, JJ.)
SLPs (C) Nos. 5735-36 of 2015 with TPs (C) Nos. 352-56 and 363 of 2015
8. Heard Mr Mukul Rohatgi, learned Attorney General for India along with Mr Ranjit Kumar, learned Solicitor General of India and Mr P.S. Narasimha, learned ASG for the Union of India, Mr P. Chidambaram, Mr Gopal Jain, Dr A.M. Singhvi, Mr Rakesh Dwivedi and Mr Amarjit Singh Chandhoik, learned Senior Counsel for the respondents.
9. The impugned order dated 12-2-2015 passed in Bharti Hexacom Ltd. v. Union of India CM No. 54 of 2015 in WP (C) No. 52 of 2015 by the High Court of Tripura at Agartala shall remain stayed.
10. The auction as scheduled to be commenced from 4-3-2015 shall continue but the same shall not be finalised without the leave of this Court. It is hereby made clear that the said condition shall be put forth on the website so that all the bidders are aware of the order of this Court. In addition, no bidder shall claim equity because of his participation or success in the tendering process.
11. Let the matter be listed on 26-3-2015. The matter shall not be treated as part-heard.
Transfer Petitions (C) Nos. 352-56 and 363 of 2015
12. Heard the learned counsel for the parties.
13. Writ Petitions Nos. 52 of 2015 titled as Bharti Hexacom Ltd. v. Union of India and 53 of 2015 titled as Reliance Telecom Ltd. v. Union of India pending before the High Court of Tripura, Writ Petition No. 8315 of 2015 titled as Idea Cellular Ltd. v. Union of India pending before the High Court of Allahabad, Writ Petition No. 6176 of 2015 titled as Bharti Airtel Ltd. v. Union of India pending before the High Court of Karnataka, Writ Petition No. 1383 of 2015 titled as Sistema Shyam Teleservices Ltd. v. Union of India and Writ Petition No. 1635 of 2015 titled as Reliance Telecom Ltd. v. Union of India pending before the High Court of Delhi at New Delhi shall stand transferred to this Court and be registered as transferred cases. The Registry shall see to it that the cases shall be transferred within 10 days.
14. Pleadings from all aspects shall be completed by that day. As we are transferring the cases, no High Court or any other legal forum shall take up any petition relating to the “Notice inviting Applications” dated 9-1-2015. The order passed in SLPs (C) Nos. 5735-36 of 2015 shall govern all the transferred cases which have been listed today.
15. The transfer petitions are allowed.
Order dated 26-3-2015
(Before Dipak Misra and Prafulla C. Pant, JJ.)
SLPs (C) Nos. 5735-36 of 2015 with Transfer Petition No. 477 of 2015
16. Heard Mr Mukul Rohatgi, the learned Attorney General and Mr P.S. Narasimha, the learned Additional Solicitor General for the Union of India and Mr P. Chidambaram and Mr Gopal Jain, the learned Senior Counsel, along with Ms Shelly Bhasin, the learned counsel for the respondents.
17. Be it stated, on the earlier occasion, this Court while entertaining Transfer Petitions (C) Nos. 352-56 and 363 of 2015, had allowed the said transfer petitions. As we find, the records of the transfer petitions have not been received, but copies of the writ petitions have been filed and the pleadings are complete in all respects. If in any matter pleadings are not complete, it should be done within a week hence.
18. It is open to the Union of India to file a further affidavit within a period of one week from today. It is hereby made clear that no adjournment should be sought on that score.
19. Mr Mukul Rohatgi, the learned Attorney General appearing for the Union of India, has submitted that there has been auction commencing on 4-3-2015 and ending on 25-3-2015, in respect of the bands, namely, 800 MHz, 900 MHz, 1800 MHz and 2100 MHz in respect of all the States and there has been a fierce and competitive auction and the entire revenue likely to be generated is Rs 1.09 lakh crores. The learned Attorney General would further submit that if the order of stay is not modified, the Union of India will be facing grave fiscal difficulty as there is ample possibility of collecting at least Rs 28,000 crores by 31-3-2015. It is urged by him that the auction itself would show that the “Notice Inviting Tender” has been a workable one and, therefore, sustainable in law. In this backdrop, submits Mr Mukul Rohatgi, that the interim order passed on the earlier occasion should be modified granting leave to the Union of India to finalise the auction, subject to the final decision of the special leave petition and the transferred cases.
20. Mr P. Chidambaram and Mr Gopal Jain, the learned Senior Counsel appearing for the contesting respondents, per contra, would contend that the competitive bidding was not really competitive, but a compulsive bidding as the parties were obliged to bid because of their survival. In addition, it is put forth by them that the amount that has to be thought of being collected by the Union of India, is factually incorrect, inasmuch as the bidders who are successful have to deposit the amount within ten days from the completion of date of auction, that is, 25-3-2015. The learned Senior Counsel would further submit that the entire design of the “Notice Inviting Tender” is gloriously faulty and solely because the auction has taken place and money is likely to be collected, would not be a justification for the modification of the interim order.
21. Having heard the learned counsel for the parties, we are inclined to modify the order to the extent that the Union of India would be at liberty to finalise the auction and proceed thereafter, but all the successful bidders shall be intimated that the said finalisation is subject to the final result of the special leave petition, as well as the transferred cases. Mr Mukul Rohatgi, the learned Attorney General also undertakes that the competent authority of the Union of India would intimate the successful bidders to get themselves impleaded as parties and, needless to say, they are under obligation to implead themselves as they are to be heard in the matter.
22. The said impleaded parties shall also file their respective affidavits stating their stand and stance in the said affidavits.
23. Let the matter be listed on 16-4-2015. It shall be taken up as the first item on the Board.
Transfer Petition No. 477 of 2015
24. This is a petition for transfer of writ petition bearing Diary No. 112565 of 2015, titled Idea Cellular Ltd. v. Union of India, pending before the High Court of Delhi. Having heard the learned counsel for the parties, the transfer petition stands transferred to this Court. The learned counsel for the petitioner is at liberty to file all the pleadings before this Court, which will be treated for the purpose of the transferred case. The transfer petition is, accordingly, disposed of.
25. Let the transferred case be listed along with SLPs (C) Nos. 5735-36 of 2015, on 16-4-2015.
Order dated 28-4-2015
(Before Dipak Misra and Prafulla C. Pant, JJ.)
SLPs (C) Nos. 5735-36 of 2015 with TC (C) No. 43 of 2015 with TCs (C) Nos. 42 and 63-67 of 2015
SLPs (C) Nos. 5735-36 of 2015, TCs (C) Nos. 43, 42, 64-67 of 2015
26. Heard in part. Put up for further hearing on 30-4-2015.
TC (C) No. 63 of 2015
27. Mr Gopal Jain, learned Senior Counsel for the petitioner, on being instructed, does not intend to press the transferred case. The transferred case is, accordingly, dismissed.
Order dated 30-4-2015
(Before Dipak Misra and Prafulla C. Pant, JJ.)
SLPs (C) Nos. 5735-36 of 2015 with TCs (C) Nos. 42, 43, 64-67 of 2015
Transferred Case No. 42 of 2015
28. In this transferred case, Writ Petition (C) No. 1383 of 2015 titled as Sistema Shyam Tele Services Ltd. v. Union of India filed before the High Court of Delhi at New Delhi has been transferred to this Court.
29. Dr A.M. Singhvi, learned Senior Counsel appearing for the petitioners, submitted that before approaching the High Court of Delhi in the writ petition, the petitioners have instituted a proceeding before the Telecom Disputes Settlement and Appellate Tribunal (Tdsat) agitating the grievance which really pertains to the 2013 auction of spectrum wherein he had become successful in getting certain 800 MHz band spectrum which was in the category of “liberalised spectrum”. As the said spectrum was not contiguous and spread over eight circles and the liberalised concept allowed him to reconfigure with other auction-purchasers, he had made an attempt to do so in 2015 after the spectrum auction was over and the same had been allowed by the Union of India on imposition of certain conditions which were not in consonance with the notice inviting application/tender (NIA) pertaining to 2013 or for that matter NIA of 2015. Dr Singhvi has drawn our attention to Clause 3.10 of NIA dated 9-1-2015. It is the further submission of Dr Singhvi that the said clause does not apply to him. The learned Senior Counsel would submit that he has initiated the proceedings before Tdsat and the said Tribunal has the authority to adjudicate whether a clause, by interpretative process, would apply to a particular service provider or not. He would intend to agitate the grievance before the said Tribunal.
30. Mr Ranjit Kumar, learned Solicitor General appearing for the Union of India, submitted that the petitioners, if they so desire, may do so.
31. In view of the aforesaid, we permit the petitioners to withdraw the transferred case which has arisen from Writ Petition (Civil) No. 1383 of 2015 being transferred from the High Court of Delhi at New Delhi and seek redressal of the grievances before Tdsat. In case he is aggrieved by the judgment of Tdsat, it is open to him to file an appeal. By way of abandoned caution, it is submitted by Dr Singhvi, learned Senior Counsel, that if Tdsat eventually opines that the petitioners would not be granted any relief as they have not called in question the validity of Clause 3.10 of NIA dated 9-1-2015, liberty may be granted to him to assail the validity of the said clause by way of writ petition as has been done in the writ petition which is sought to be withdrawn in praesenti.
32. In view of the aforesaid, the transferred case is permitted to be withdrawn with liberty to the petitioners to continue his proceedings initiated by them before Tdsat agitating their grievance and in case, Tdsat unsuits them on the ground that the validity of the clause in question has not been assailed, it would be open to them to challenge the validity of the said clause under Article 226 of the Constitution of India.
Transferred Case No. 66 of 2015
33. Mr Rakesh Dwivedi, learned Senior Counsel appearing for the petitioner, submits that Transferred Case No. 66 of 2015, Writ Petition No. 8315 of 2015 titled as Idea Cellular Ltd. v. Union of India filed before the High Court of Judicature at Allahabad has been transferred to this Court.
34. Be it noted, the petitioner has become the successful bidder in the auction. The other contesting party was Vodafone South Ltd. Mr Sparsh Bhargav, appearing for M/s Vodafone South Ltd., submitted that at present, there is no cavil between M/s Vodafone South Ltd. and the petitioner.
35. In view of the aforesaid, the transferred case is permitted to be withdrawn and consequently the writ petition stands withdrawn.
Transferred Case No. 67 of 2015
36. Mr Rakesh Dwivedi, learned Senior Counsel appearing for the petitioner submits that he does not intend to prosecute the transferred case which pertains to Writ Petition No. 3418 of 2015 titled as Idea Cellular Ltd. v. Union of India that has been transferred from the High Court of Delhi at New Delhi.
37. In view of the above, the transferred case stands disposed of.
SLPs (C) Nos. 5735-36 of 2015, Transferred Cases Nos. 43, 64 and 65 of 2015
38. Heard in part. Put up for further hearing on 7-5-2015.
Order dated 7-5-2015
(Before Dipak Misra and Prafulla C. Pant, JJ.)
SLPs (C) Nos. 5735-36 of 2015 with TCs (C) Nos. 43, 64 and 65 of 2015
SLPs (C) Nos. 5735-36 of 2015
39. Hearing resumed. By these special leave petitions, the Union of India has challenged the interim order passed by the High Court of Tripura at Agartala on 12-2-2015 in Bharti Hexacom Ltd. v. Union of India CM No. 54 of 2015 in WP (C) No. 52 of 2015. The High Court while dealing with the interim prayer, has directed as follows:
“Therefore, at this stage, we feel that only the following order should be passed:
Both the petitioners are permitted to submit two applications instead of one. One application may be for 4.4 MHz and the other application will be for a minimum of 5 MHz and may extend up to 8.8, if the petitioners so desire. We have been informed at the Bar that two applications may not be possible to be submitted because it is online. We are not sure whether the same because it may not be possible. Therefore, we direct that it is for the petitioners to decide what application they will submit online but they may also simultaneously submit one application offline in hard copy with the Secretary, Department of Telecommunications, Union of India on or before 16-2-2015.
The Union of India may proceed with the assessment of the applications but no final decision in the matter shall be taken without permission of this Court. Furthermore, any preliminary decision taken shall also be subject to the result of the present writ petition. Admittedly, the licences of the petitioners are expiring only in December 2015, and, therefore, we would like to ensure that the writ petition is disposed of much earlier.”
40. This matter was listed on 17-2-2015 and the Court directed issuance of notice. Thereafter, on various dates some orders were passed and, eventually, on 26-2-2015 this Court directed as follows:
“9. The impugned order dated 12-2-2015 passed in Bharti Hexacom Ltd. v. Union of India CM No. 54 of 2015 in WP (C) No. 52 of 2015 by the High Court of Tripura at Agartala shall remain stayed.
10. The auction as scheduled to be commenced from 4-3-2015 but the same shall not be finalised without the leave of this Court. It is hereby made clear that the said condition shall be put forth on the website so that all the bidders are aware of the order of this Court. In addition, no bidder shall claim equity because of his participation or success in the tendering process.”
41. On the same date, Transfer Petitions (Civil) Nos. 352-56 of 2015 and 363 of 2015, were allowed. Thereafter, on 26-3-2015, the following order came to be passed:
“16. Heard Mr Mukul Rohatgi, learned Attorney General and Mr P.S. Narasimha, learned Additional Solicitor General for the Union of India and Mr P. Chidambaram and Mr Gopal Jain, learned Senior Counsel, along with Ms Shelly Bhasin, learned counsel for the respondents.
17. Be it stated, on the earlier occasion, this Court while entertaining Transfer Petitions (C) Nos. 352-56 of 2015 and 363 of 2015, had allowed the said transfer petitions. As we find, the records of the transfer petitions have not been received, but copies of the writ petitions have been filed and the pleadings are complete in all respects. If in any matter pleadings are not complete, it should be done within a week hence.
18. It is open to the Union of India to file a further affidavit within a period of one week from today. It is hereby made clear that no adjournment should be sought on that score.
19. Mr Mukul Rohatgi, learned Attorney General appearing for the Union of India, has submitted that there has been auction commencing 4-3-2015 and ending 25-3-2015, in respect of the bands, namely, 800 MHz, 900 MHz, 1800 MHz and 2100 MHz in respect of all the States and there has been a fierce and competitive auction and the entire revenue likely to be generated is Rs 1.09 lakh crores. The learned Attorney General would further submit that if the order of stay is not modified, the Union of India will be facing grave fiscal difficulty as there is ample possibility of collecting at least Rs 28,000 crores by 31-3-2015. It is urged by him that the auction itself would show that the “Notice Inviting Tender” has been a workable one and, therefore, sustainable in law. In this backdrop, submits, Mr Mukul Rohatgi, that the interim order passed on the earlier occasion should be modified granting leave to the Union of India to finalise the auction, subject to the final decision of the special leave petition and the transferred cases.
20. Mr P. Chidambaram and Mr Gopal Jain, learned Senior Counsel appearing for the contesting respondents, per contra, would contend that the competitive bidding was not really competitive, but a compulsive bidding as parties were obliged to bid because of their survival. In addition, it is put forth by them that the amount that has to be thought of being collected by the Union of India, is factually incorrect, inasmuch as the bidders who are successful have to deposit the amount within ten days from the completion of date of auction, that is, 25-3-2015. The learned Senior Counsel would further submit that the entire design of the “Notice Inviting Tender” is gloriously faulty and solely because the auction has taken place and money is likely to be collected, would not be a justification for the modification of the interim order.
21. Having heard the learned counsel for the parties, we are inclined to modify the order to the extent that the Union of India would be at liberty to finalise the auction and proceed thereafter, but all the successful bidders shall be intimated that the said finalisation is subject to the final result of the special leave petition, as well as the transferred cases. Mr Mukul Rohatgi, learned Attorney General also undertakes that the competent authority of the Union of India would intimate the successful bidders to get themselves impleaded as parties and, needless to say, they are under obligation to implead themselves as they are to be heard in the matter.
22. The said impleaded parties shall also file their respective affidavits stating their stand and stance in the said affidavits.
23. Let the matter be listed on 16-4-2015. It shall be taken up as the first item on the Board.
Transfer Petition No. 477 of 2015
24. This is a petition for transfer of writ petition bearing Diary No. 112565 of 2015, titled Idea Cellular Ltd. v. Union of India, pending before the High Court of Delhi. Having heard the learned counsel for the parties, the transfer petition stands transferred to this Court. The learned counsel for the petitioner is at liberty to file all the pleadings before this Court, which will be treated for the purpose of the transferred case. The transfer petition is, accordingly, disposed of.
25. Let the transferred case be listed along with SLPs (C) Nos. 5735-36 of 2015, on 16-4-2015.”
42. At this juncture, it is apt to note that the writ petitions filed before the High Court of Tripura, forming the subject-matter of WP (C) No. 52 of 2015 and WP (C) No. 53 of 2015, were transferred to this Court and they were numbered as Transferred Cases (Civil) Nos. 63 and 64 of 2015. Transferred Case (Civil) No. 63 of 2015 has already been withdrawn. Transferred Case (Civil) No. 64 of 2015 is surviving in praesenti.
43. It is conceded at the Bar that as the writ petition has been addressed on its own merits and the auction has taken place, subject to final result of the special leave petitions and the transferred cases, there is no justification to keep the special leave petitions pending. In our considered opinion, the submission raised by the learned counsel for the parties is justified and, therefore, we are inclined to think that nothing really remains to be adjudicated in the special leave petitions as the whole controversy is being addressed to in the transferred cases.
44. The successful bidders, who have been impleaded in the special leave petitions by virtue of the order passed by this Court on 26-3-2015, shall be deemed to have been impleaded in the pending transferred cases and are permitted to argue the matter. Be it noted, the successful bidders who have sought impleadment before this Court, shall be impleaded as respondents in all the transferred cases. The Registry is directed to rectify the cause-title accordingly.
45. The special leave petitions are, accordingly, disposed of. There shall be no order as to costs.
TCs (C) Nos. 43, 64 and 65 of 2015
46. Put up for further hearing on 13-5-2015. Needless to say, the matters will be taken up as the first matter on the Board.
Order dated 15-9-2015
(Before Dipak Misra and Prafulla C. Pant, JJ.)
TC (C) No. 43 of 2015
47. Mr Ritin Rai, learned counsel appearing on behalf of the learned Solicitor General for India, submitted that the Union of India has framed a policy relating to spectrum trading. At this juncture, Mr Chidambaram, learned Senior Counsel and Mr Gopal Jain, learned Senior Counsel submitted that the said policy has no relevance to the present lis. Be that as it may, let the policy be brought on record by 21-9-2015. List the matter on 23-9-2015.
Order dated 6-10-2015
(Before Dipak Misra and Prafulla C. Pant, JJ.)
TCs (C) No. 43 of 2015 with Nos. 64-65 of 2015
48. Arguments heard. Hearing concluded. Judgment reserved. Written submissions to be filed within a week from today.
Court Masters