SC to hear centre's plea on spectrum allocation in northeast

The High Court could not have examined the relative merit of a policy and strike down the same merely on the grounds that another policy would have been fairer and better.

 The Supreme Court will hear on Tuesday the central government's plea challenging the Tripura High Court order permitting Reliance Telecom Ltd and Bharti Hexacon Ltd to make two bids for 2G spectrum for the northeastern states by modifying the tender condition.

A bench of chief justice HL Dattu and Justice AK Sikri said that they would hear the matter on Tuesday after Additional Solicitor General PS Narasimha mentioned the matter and urged the court to hear it as the high court order could upset the process for bidding for 2G spectrum.

The Tripura High Court by its February 12 order said: "Both the petitioners are permitted to submit two applications instead of one. One application may be for 4.4MHz and other application will be for a minimum of 5MHz and may be extended to 8.8MHz, if the petitioners so desired."

Noting one application may be online and the other offline in a hard copy to the telecommunications secretary, the high court said that the central government may proceed with the assessment of the applications but no final decision would be taken without its permission.

Any preliminary decision that the government may take would be subject the final outcome of the plea by two telecom service providers before it, it added in its order modifying the tender condition which said that a bidder will have to make a bid for a minimum of 5MHz.

It was contended before the high court that if one could only bid for a minimum of 5 MHz spectrum, then it would leave only one operator in the field, leading to the remaining 3.8MHz going useless and the government losing revenue on it. Another contention was that the telecom regulator had recommended that in northeast and West Bengal, the minimum spectrum for which bids are to be invited should be less than 5MHz.

The two companies contended that while in West Bengal, the minimum spectrum for which a service provider could bid was kept at 4.4MHz, in case of northeast, it was kept at 5MHz and sought that it should be made 4.4MHz in the latter area.

Assailing the high court order, the central government in its plea today said that it was not permissible for the court to "rewrite the conditions of a tender documents" that was issued "pursuanrt to a well-considered policy".

Contending that the interim order was passed without affording it an opportunity to present its case, the government said that both firms had the remedy of approaching the telecom disputes tribunal.

Holding that the scope of the judicial review was limited in the matter of policy decisions, it said: "The High Court could not have examined the relative merit of a policy and strike down the same merely on the grounds that another policy would have been fairer and better."

It further said that after considering the trai recommendations, it was decided that the requirement of a minimum bid of 5MHz would be the most efficient system of allocating spectrum
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