AIR 2017 SUPREME COURT 337 ::2017 (4) SCC 269 ::(2017) 1 Scale 453

Supreme Court Of India

Hon'ble Judge(s): Dipak Misra, Prafulla C. Pant , JJ

(A) Constitution of India , Art.14, Art.299— Tender - Spectrum auction - Capping rule - Object is to ensure competition in market by preventing big operators from acquiring large spectrum. Objective behind Spectrum capping is to ensure competition in the market by preventing large/big operators from acquiring large amount of spectrum, which they may not require but only hoard to prevent small operators from effectively competing in market, and hence TRAI has recommended on 02.07.2015 that the basic objective of prescribing a spectrum cap is to prevent a Telecom Service Provider (TSP) from acquiring large holdings of spectrum through auction, M and A or trading, as it may lead to non-level playing field thereby disturbing competition in market. It cannot be left to market forces alone to decide maximum spectrum holding as a TSP and, hence, the provision of cap should continue on the spectrum holding that a TSP may acquire or otherwise. Capping rule is basically a formula which has worked out as an experimentation, as completion of the auction as shown. The cap as compared has aggregate of total spectrum assigned in service area and total spectrum being put to auction. If the cap is to be determined based on the 'commercially usable spectrum', as put forth by the petitioners, as commercially assigned spectrum as postulated in tender, it would be re-writing the....