BHARTI AIRTEL LTD v. UNION OF INDIA

1.10 Even assuming for the sake of arguments that the recommendations of TRAI are final, the G~vernment of India is not bound by the same in view of the first proviso to Section 11(1) of TRAI Act. TJie obligation of G 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 H before the Government takes a final decision on any one 874 SUPREME COURT REPORTS [2015] 5 S.C.R. A of the matters enumerated under Section 11(1)(a). As pointed out by Subodh Kumar Committee, the Government is required to address the multiple goals . for spectrum management such as efficient utilisation, optimal revenue generation, sufficient competition, B obviously to avoid monopoly in the telecom market etc. The Subodh Kumar Committee rightly observed that these goals are simultaneously "synergistic as well as conflicting". Therefore, the Parliament stipulated that such issues are initially examined by an expert body leaving it open to the Government to take a final decision as to which one of these various 'synergistic as well as conflicting' factors must outweigh by the other factors. Apart from that, from the language of the 2nd proviso the obligation to consult TRAI arises only in the case of "new licence" but not the renewal/extension of an existing licence. [Para 76] [912-B-F] C 0

1.11 The impugned decision of the Government, which in fact resulted in huge inflow of revenue in the E 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, more particularly, in the light of decision F of this Court in 2G case. [Para 77] [912-G]

1.12 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 G 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 H would be able to carry on the business profitably even BHARTI AIRTEL LTD. v. UNION OF INDIA 875 after paying higher amounts for acquisition of spectrum. A The LICENSEES are corporate houses with enormous economic power, which enables them to secure adequate expert advice in the matter of financial planning. It cannot be believed thatthey would make any investment without making a reasonable assessment of B the possible return on such investment. There is no compulsion by the State in this regard. [Para 82) [915-E G]

1.13 In 2G case, this Court observed that this C Court "respects the mandate and wisdom of the executive" in the matter of choosing the most suitable method of distribution of natural resources. This Court noted that this is clearly a matter of an economic policy entailing an intricate economic choice and the Court D lacks necessary expertise to make such choice. In the light of the observation that at least in the matter of disposal of spectrum, auction is the only "permissible and intra vi res method for disposal". Therefore, the submission of the LICENSEES that auction is not the E only method of disposal of natural resources is rejected. [Para 84) [917-E-F] Centre for Public Interest Litigation & Others v. Union of India & Others 2012 (3) SCR 147 : (2012) 3 SCC 1; Natural Resources Allocation, In Re. Special Reference No. 1 of 2012 2012 (9) SCR 311 : (2012) 10 SCC 1; Union of India & Another v. Association of Unified Telecom Service Providers of India & Others 2011 (14) SCR 657 : (2011) 10 SCC 543; State of Punjab & Another v. Devans Modem Breweries Ltd. & Another 2003 (5) Suppl. SCR 930 : (2004) 11 SCC 26; Har Shankar & Others v. The Dy. Excise and Taxation Commissioner & Others 1975 (3) SCR 254: F G H 876 SUPREME COURT REPORTS [2015] 5 S.C.R. A B c D E