IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRA ORDINARY ORIGINAL JURISDICTION) WRIT PETITION [C] NO.

____________/2011

In the matter of A Public Interest Litigation AND IN THE MATTER OF: Yakesh Anand S/o Late Dr. K.L. Anand S-471, Greater Kailash, Part-II, New Delhi Versus 1. Union of India, Through its Secretary, Department of Telecommunications, Sanchar Bhawan, 20, Ashoka Road, New Delhi-110001 2. Ministry of Finance Through its Secretary North Block, New Delhi 3. Ministry of Home Affairs Through its Secretary North Block, New Delhi 4. Telecom Regulatory Authority of India [TRAI] Through its Chairman, Mahanagar Door Sanchar Bhawan, Jawaharlal Nehru Marg (Old Minto Road), New Delhi – 11 00 02

..

Petitioner

5. Bharti Airtel Limited Bharti Crescent, 1, Nelson Mandela Road, Vasant Kunj, Phase II, New Delhi – 110 070, India

6. M/s Idea Cellular Ltd. A-30, Mohan Co-operative Industrail Area, Mathura Road, Mathura Road New Delhi, Delhi 110044 7. M/s. Vodafone Essar Mobile Services Limited, C 48, Okhla Industrial Area, Phase II, New Delhi 110 020 .. Respondents

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA CHALLENGING THE PROVISION OF 3G SERVICES BY SOME OF THE TELECOM OPERATORS IN INDIA WITHOUT OBTAINING VALID LICENSE FOR THE SAID SERVICES. To, THE HON’BLE CHIEF JUSTICE OF DELHI AND HIS COMPANION JUDGES OF THE HIGH COURT OF DELHI, NEW DELHI MOST RESPECTFULLY SHOWETH: 1. The present writ petition is intended to be filed in Public Interest and be treated as Public Interest Petition. That the petitioner has no personal interest in the present writ petition and the litigation against the respondents herein. That the petition is not guided by self-gain or for gain of any other person/institution/body and that there is no motive other than of public interest in the writ petition.

2.

The information, date and facts stated in the writ petition and documents annexed are all available in the official

website of the respondent No. 1 & 4 and in the media. The facts stated in the Writ Petition have been checked and verified with the information available on the net by the petitioner and his associates, before filing the present petition. 3. The present petition is being filed in public interest for the benefit of the general public and to save the government from the revenue loss of more than Rs. 20,000/- crores. The Petitioner herein has been sincerely working for the cause of protecting the national and public interest and the interests of public at large and also matters relating to environment and natural resources. 4. The petitioner is a practicing advocate before the Hon’ble Supreme Court and this Hon’ble Court for last over 30 years. That the petitioner alongwith his associates have filed and pursued various writ petitions concerning public interest issues, before this Hon’ble Court, Hon’ble Punjab and Haryana High Court and before the Hon’ble Supreme Court. That the petitioner alongwith his associates have been taking up various issues of public and general interest with the concerned authorities as a public spirited citizen. 5. The Petitioner is filing the present petition in the Public Interest to highlight the irregularities and illegalities being committed by various private telecom operators in India, in providing 3G services in different parts of the country, in violation of license conditions and in violations of various directions issued by the Department of Telecommunication [hereinafter referred to as DOT] i.e. the respondent No.1

herein and various recommendations made by respondent No. 4 from time to time. The respondent No. 1 to 4 have failed to investigate and stop the illegal and misuse of 3G services and spectrum [air waves used for providing mobile services] by the telecom operators i.e the respondents No. 5 to 7 herein . The Respondents No. 1 to 4 have not taken any action and failed to check the unauthorized use illegal activities of respondent No. 5 to 7, leading to a huge loss of revenue to the Government and causing threat to the national security. 6. The respondent No.1, Department of Telecommunication is responsible for issue of license for providing

telecommunication services, mobile as well as landline in India. The respondent No.1 is responsible for taking the policy decisions with regard to the issues concerning tele communication services in India. The respondent No. 2 & 3 are responsible for the financial and security issues respectively connected with the telecome licensing. 7. The respondent No.4, Telecommunication Regulating

Authority of India [hereinafter referred to as TRAI] is a telecom regulator responsible for recommending terms and conditions of licenses, fixing tariffs etc. The

Respondent No. 5 to 7 are licensees who have been issued licenses to provide 3G services in certain telecom circles in India. 8. The Petitioner submits that the Respondents No.1 and 4 have ignored the clear violations of licence conditions by respondent No. 5 to 7 in the provision of 3G services

leading to huge financial loss to the National Exchequer

and also causing

grave national security risk to the

country. The loss to the National Exchequer is to the tune of about more than Rs.20,000 crores. The various private operators have entered into agreements among themselves for using each other’s network & spectrum and provide 3G services, even in those areas and circles in India, where they neither have the licence nor any 3G spectrum, thus entering into 3G area of operation through the backdoor. 9. The petitioner submits that various private operators and in particulars the respondent No. 5 to 7 are gaining a

backdoor entry into 3G services without having a valid license to provide the said services. Further, the said operators do not have the necessary spectrum for providing 3G services in all the circles. The said operators have not paid the price for receiving the 3G spectrum arrived at through auction to the respondents. The said operators are entering into spectrum sharing agreement amongst themselves in different telecom

circles, where one or two of the operators have got the 3G spectrum & license and others have failed to obtain the same. This private arrangement amongst some of the telecom operators amount to defrauding the Government of crores of rupees towards spectrum fees. The said

operators have avoided to make payment of 3G spectrum fee and by passed the roll out obligations imposed by the DOT on the 3G licencees and also vitiate the auctioning process adopted by the DOT, not only for the present but also in future.

10.

The petitioner submits that the issues raised in the present writ petition are of great public importance and in particular are as follows : (i) Violation of licence conditions by the 2G and 3G licensed service providers. (ii) Some private 3G operators license providing 3G without services 3G

without

and

having

spectrum. (iii) Non-payment of 3G spectrum fee causing loss to the tune of more than Rs 20,000 crores to the national exchequer. (iv) Violations of the DOT orders which prohibit sharing of spectrum. (v) Violation equipment services. (vi) Providing 3G services by non-licenced operators by wrongly interpreting the orders of the DOT. (vii) DOT keeping silent on the violations of licence conditions and on loss of more than Rs 20,000 crores to the national exchequer. (viii) Reduction in tariff based competition, i.e. cartel based working of the operators. These issues are explained in detail in the paras herein below: of DOT directions cleared for for getting providing the 3G

security

11.

The Petitioner has been working in various areas of public interest in different High Courts in the country and have represented various to cases ground relating water to environment level in

mattersrelating Gurgaon.

depletion

A public interest petition being W.P (C) No.

4168/2008 titled as “Sunil Singh

Vs. Union of India &

Ors.” was filed before this Hon’ble Court. As this Hon’ble Court declined to intervene on account of jurisdiction of this Hon’ble Court to try and entertain the petition. Subsequently a writ petition has been filed before the

Hon’ble Punjab & Haryana High Court at Chandigarh. The said writ petition is being pursued by the petitioner’s Associates. The petitioner in the past had also pursued public interest writ petition concerning various

environmental issues before the Hon’ble High Court of Sikkim at Gangtok few years back. 12. In the area of telecom and consumer issues, the

Petitioner herein has been defending and perusing writ Petitions bearing Nos. 583 of 2007 in the matter of Cellular operators Association of India & Ors. Vs. Nivedita Sharma & Ors, C.M (M) No. 174/2007 in the matter of Telecom Regulatory Authority of India Vs. Nivedita

Sharma & Ors and C.M (M) No. 443 / 2007 in the matter of ICICI Bank Ltd. Vs. Nivedita Sharma & Ors. relating to “unsolicited calls” on mobile numbers which are a source of nuisance and irritation to the subscribers before this Hon’ble Court. These petitions had arisen out of the

orders passed by the Hon’ble State Consumer Disputes Redressal Commission. The issue is presently pending

before the Hon’ble Supreme Court of India in appeal being SLP [C] No. 17213 of 2010, titled as “Nivedita Sharma & Ors. Vs. Cellular Operators Association of India & Ors. The main issues in the said appeal are as follows:(i) Whether the Hon’ble State Commission has powers under Section 14 (i) (d) read with Section 27 of the Consumer Protection Act, 1986 to award

penalties/punitive damages when the respondents failed to abide by the orders passed?

(ii)

Whether the State Commission is empowered to impose punitive damages amounting to Rs. One crore collectively on different respondents considering the fact that the pecuniary jurisdiction of the State Commission is upto to Rs. One crore?

(iii)

Whether the service providers of mobile telephones in India can be allowed to share information of its customers of any kind including disclosure of the mobile numbers to the banks or any other finance companies, insurance companies, telemarketing

companies, their associates/ call centers /agents etc .? (iv) Whether the orders of the State Commission passed from time to time in different petitions and in particular in the complaint petition of the petitioner restraining them from making any call or giving any SMS of any client to any person without his consent have been floated and misused by making unsolicited calls disturbing the customers? (v) Whether the guidelines issued by TRAI to the mobile operators and in particular to install “DO NOT CALL” registry facility are being followed in its true letter and spirit? (vi) Whether the measures taken so far by Reserve Bank of India, Banks and Services Providers and other Agencies being affective in reducing the number of unsolicited messages and calls?

(vii) Whether the Hon’ble High Court was justified in disposing off the W.P. of the respondents, without deciding the core issues w.r.t. unsolicited calls and SMS being sent by unauthorized persons? (viii) Whether the Hon’ble High Court by passing the jurisdiction of the Hon’ble National Commission, had jurisdiction to try and decide by way of a Civil Writ Petition, the orders of the Hon’ble State Commission, against whose order no mandatory appeal was filed? (ix) Whether it was mandatory for the respondents to file an appeal under Section 19 of the Consumer Protection Act, 1986 as amended before the Hon’ble National Commission challenging the orders of the Hon’ble State Commission? (x) Whether the Hon’ble Commission has jurisdiction under the Consumer Protection Act to issue

directions to Telecom Regulatory Authority of India (TRAI) to introduce the “DO NOT CALL” registry and thereby foreclose the statutory consultation process being carried out by TRAI? 13. One of the issues being examined by the Hon’ble Supreme Court in the matter of Nivedita Sharma Vs. Cellular Operators & Ors. in addition to the above stated questions of law is about the jurisdiction of the Hon’ble High Courts to exercise its jurisdiction under Article 226 & 227 of the Constitution of India where alternative remedy of filing an appeal under a statutory law is provided. 14. The petitioner is filing the present writ petition in larger Public Interest to seek directions from this Hon’ble Court to the Respondent No.1 & 2 to take appropriate action to

avoid the loss of substantial revenue to the Government exchequer and to order investigation and immediate stoppage of the illegal operation of 3G services by nonlicensed operators viz. Respondent NO. 5 to 7 herein. The Petitioner also seeks directions to the Respondent No.1 & 2 to take appropriate action for the violation of License conditions by various private operators who are providing 3G services without 3G license in different parts of the country. The respondent No. 1 to 4 have failed to check & correct the anomaly by which the unlicensed operations are providing 3G services in different circles/sectors in different parts of the country. The Respondent No. 1 to 4 have further failed to take action against the respondent No. 5 to 7 who have illegally and unlawfully permitted the sharing of their 3G spectrum with those operators who were not awarded the license to provide 3G services. There had been no provision in the DOT guidelines for sharing of the spectrum by the telecom operators. The issues raised in the present petition are of great public importance are explained in detail in the paras herein below. Brief background of the case: 15. During last one year there has been a large media attention relating to what is called “2G Scam” which is presently under consideration in the Court of Special CBI Judge, New Delhi. The Hon’ble Supreme Court, in a

Public Interest Litigation, after hearing the case for over a period of time, issued various directions. On the basis of the said directions, criminal complaints against some of the persons involved in the 2G Scam were filed before the Special CBI Court. The Hon’ble Supreme Court is

monitoring the progress of the said case. One of the major issues raised in the said “2G scam” case is that the scarce national resource of spectrum (airwaves used for providing mobile services) has not been auctioned but has been given free to the private telecom operators leading to a huge loss of about Rs 31,000 crores to the national exchequer as estimated by the CBI. This matter is already being tried in the Special CBI Court, New Delhi. The present petition does not relate to 2G spectrum allotment but highlights the anomalies in sharing of 3G spectrum by the 3G license holders with the non-3G license

holders in different sectors in different parts of the country. The anomalies have led to misuse and illegal

sharing of 3G spectrum by operators who have not obtained the license for providing 3G services and have not paid the spectrum fee for the same. The use of 3G

spectrum by non license holders is causing huge financial loss to the National Exchequer in what can be called a new 3G Scam. Auction of 3G spectrum: 16. Till 2008, licenses have been issued by the Respondent No.1 (DOT) on the basis of recommendations from the Respondent No.2 (TRAI) for providing 2G services. The spectrum was not auctioned but was given as a part of the Licence. This is what led to the 2G spectrum scam referred hereinabove. 17. In order to overcome the anomalies in the allotment of 2G spectrum and grant of licenses, the respondent No.2 conducted studies and recommended that the

allocation of 3G spectrum should be done through

auction

only.

In

its

recommendations

dated

27.09.2006, in clause 4.59 it is stated as follows : “4.59. …The Authority recommends that the spectrum auction for 2.1 GHz band should use a simultaneous ascending auction system…….” The relevant extract of TRAI recommendation dated 27.9.2006 is attached herewith and marked as Annexure: P-1.

18.

The respondent No.2 in its said recommendations dated 27.9.2006 also specifically held that 2G and 3G services are different and 3G services cannot be considered as an extension of 2G services. The relevant extract of the respondent No.2 recommendation dated 27.09.2006 are reproduced below: “ 3.8. ………Hence the Authority recommends that 3G cannot be perceived as an automatic extension of 2G and would need to be viewed as a kind of standalone service for specialized needs and its allocation criteria has to be specific separately…….” {Emphasis added}

19.

The Respondent No. 4 has also explained the 3G services as, “S.2. Third generation (3G) systems represent the next step in the evolution of mobile cellular communications. 2G systems focus on voice communication, while 3G systems support increased data communication. They allow high-speed data of at least 144 kbps, mobile Internet access, entertainment, and triple-play converged communications services, and have markedly greater capacity and spectrum efficiency than 2G systems.”

The respondent No.2 in para 4.2 also explained the differences in 2G services and 3G services as, “4.2. Both the range of services as well as the demographic characteristics of subscribers for 3G services is significantly different from 2G services. As discussed in Chapter 3, the 2G services will have spectrum for their present and medium-term needs. Existing telecom service operators thus have a clear and separately identified road map for growth in 2G services and 3G services with reference to spectrum availability.” Thus, it is clear that the 2G and 3G are clearly identifiable different services working in different frequency bands. A 2G Unified Access Service (UAS)

licensee is not automatically allowed to provide the 3G services without allotment of 3G spectrum. The respondent No.1 accepted this recommendation of respondent No.2 on the chart available 09.12.2008. This fact is clear from on the official website of the

respondent No.1. A

copy of chart downloaded from the

net is attached herewith and marked as Annexure: P-2. 20. For the purpose of the auction of 3G spectrum, the respondent No.1 issued a Notice Inviting Applications (NIA in short) on 25.2.2010 vide no. P-11014/13/2008-PP inviting applications from the interested parties by

19.3.2010 for bidding for 3G spectrum. The holders of Unified Access Services Licence (UASL) /Cellular Mobile Telephone Service (CMTS) licences were eligible for

participation in the 3G auction. A copy of the said NIA is attached herewith and marked as Annexure: P-3. Provision of 2G services under UASL Licence:

21.

The UASL service licence holders are allowed to provide all types of access services, whether fixed line basic service or mobile service, commonly called 2G services. The relevant extracts of the licence condition of UAS Licence about the scope of service is reproduced below: “ 2.2 (a) The SERVICE cover collection, carriage, transmission and delivery of voice and/or non-voice MESSAGES over LICENCEES’s network in the designated SERVICE AREA and includes provision of all types of access services. In addition to this, except those services listed in para 2.2 (b) (i) licencee cannot provide any service/ services which require a separate licence. However, the licencee shall be free to enter an agreement with other service provider(s) in India and abroad for providing roaming facility to its subscriber under full mobility service unless advised /directed by Licensor otherwise………” { Emphasis added}

There are two important points which emerge from the scope of service of 2G licencees: (a) They can provide service in the service area where they have been given a licence. (b) They can not provide services for which a separate licence is required. Provision of 3G services by the three private operators i.e the respondent No. 5 to 7, is a violation on both the above accounts i.e., providing 3G service in the service area where this licence has not been granted and providing service for which a separate licence is required. Details of

the UASL License are available on the website of the respondent No. 1 [www.dot.gov.in]. A copy of the relevant extract of a UASL licence relevant for the purposes of the present writ petition is attached herewith and marked as Annexure: P-4.

22.

The Service under the UASL licence admittedly allowed all types of service but did not allow the provision of 3G services as otherwise there was no need for the DOT to auction separate spectrum for 3G and issue an

amendment in the UASL licence only in respect of those bidders who have been declared successful in the 3G spectrum auction. This is further explained in the paras herein below. 23. In addition to the existing UASL/CMTS licencees, the NIA also provided that those entities which have previous experience of running 3G services and undertake to obtain a new UASL licence, shall also be eligible to apply for the auction of 3G spectrum. This also clearly brings out that the UASL and 3G were different, otherwise such bidder could provide only 3G services and there was no need for them to obtain a separate UAS licence for 2G services. 24. The 2G services are provided under the UASL licence using 800/900MHz/ 1800 MHz spectrum bands. These spectrum bands are popularly called 2G spectrum bands. The Licensor obviously did not permit the use of 2G spectrum for providing 3G services and that is why 3G spectrum was separately auctioned and 3G services were to be provided only after getting the UASL 2G licences amended to include the provision of 3G services. 25. Based on the TRAI recommendation as referred

hereinabove, for the purpose of 3G, the DOT decided to auction 3G spectrum band popularly called 2.1 GHz band. {1920-1980 MHz paired with 2100-2170 MHz =

60+60 MHz}. The entire 60+60 MHz spectrum in this 2.1 GHz band was not immediately available for commercial use by the telecom service providers, since some portion of it being used by defence forces. Therefore, based on the available spectrum in 2.1 GHz band, the Respondent No. 1 decided to auction three to four slots for allocation {one slot is of 5 MHz} and the number of slots and the exact frequency spot in each circle was indicated in the NIA issued on 25.2.2010, already attached herewith. It is important to note that one slot of 5 MHz was allotted to the Government PSUs namely BSNL and MTNL without auction. It was provided that

these Government PSUs would pay the amount for 3G spectrum fee equivalent to the amount discovered in auction by the private operators. Thus, even the

Government PSUs were note allowed to have 3G spectrum without making the payment for the same. 26. For the purpose of service area of telecom licences, the country has been divided into 22 circles which roughly approximate to the boundaries of a State, with few exceptions like UP which is divided into UP (E) and UP(W), the North Eastern states are grouped as NE circle, etc. In each circle there are more than six to eight operators having UASL licence to provide 2G services. Amendment of 2G licences to enable provision of 3G services: 27. The Respondent No. 1 on 01.09.2010 amended the 2G UASL Licence of the selected bidders who have won the 3G spectrum to permit them to use 3G spectrum and

provide 3G services. The service licence of the successful bidders was amended to include the following: “Subject: Amendment of Unified Access Service (UAS) Licence Agreement (s) to use 3G spectrum for provision of telecom access services. In pursuance of Condition 5.1 of the UAS licence agreements(s), Clause 4.6 of Notice Inviting Applications (NIA) …………………..the LICENSOR hereby inserts the following Condition 23.7 in the UAS Licence Agreement (s) for ……………….service areas with effect from 1.9.2010. 23.7 Use of 3G Spectrum: The licensee is also authorized to use the 3G spectrum block (as earmarked in the above said Letter of Intent) for provision of Telecom Access Services as defined in the ‘Scope of the licence’ in the Schedule Condition 2 of the UAS Licence Agreement, from the date of award of right to commercially use the 3G spectrum i.e. 01.09.2010 till the validity of the UAS licence agreement or for a period of 20 years from 01.09.2010, whichever is earlier, subject to compliance of following conditions: (i) ……………………..

(ii) Roll out obligations for 3G Spectrum:. The Licencee shall ensure compliance of following network roll- out obligations for 3G spectrum for respective category of the licenced service area(s): (a) Applicable to Metro Service areas…………. (b) Applicable for Category A, B & C ………… …………….…. ……………….If the licencee does not complete its roll out obligations even within the extended period of one year, the 3G spectrum assignment shall be withdrawn. (iii) Licence Fee for 3G spectrum: Over and above the ‘Licence fee’ payable by the Licencees as per condition 18.2 of the UAS licence agreement, the licencee shall

also pay the annual licence fee as share of the Adjusted Gross Revenue (AGR) from the services using 3G spectrum as per rates mentioned in condition 18.2 of the UAS licence agreement……………………….” { Emphasis added} One copy of the amended 2G UASL licence for the purpose of providing 3G services is attached and marked as Annexure: P-5 (copy obtained from the DOT website) 28. It is clear from the conditions of the use of 3G spectrum that the UAS licencees were put to the extra and additional roll out conditions with the amendment of their licences for 3G services. The amendment in this licence was not made in respect of all the 2G licensees, but only in respect of licencees who have been successful in 3G auction and paid the spectrum fee. It is obvious from the above conditions of the amended 3G licence that the UAS licensees were also required to meet additional rollout obligations which would not be applicable to the 2G licensees who were not successful in 3G auction. Inter-circle and intra-circle Roaming: 29. As already brought out hereinabove, the licences for telecom services are issued circle wise. Each UAS licencee is allowed to provide all the services permitted under the licence in the licensed service area e.g., AP, MP,

Maharashtra etc. However, the subscribers are not only moving within the city or the state or the service area but also in other areas of the country and even abroad. The services within a service area are called “Intra-circle” and services between different service areas are called

“Inter-circle”. The concept of Intra and Inter-circle is relevant, inter alia, for the roaming purposes. 30. Roaming is a concept used in the provision of telecom services. There may be different service providers in different service areas. When a subscriber of one service provider from its home circle, say Madhya Pradesh [MP], goes to another circle say, Delhi, he requires to be constantly connected and avail the mobile services even in Delhi. The service providers have arrangements among themselves for catering to the service needs of such subscribers of each other. The MP service provider will have an arrangement with Delhi service provider to enable the subscriber from MP to avail of the services in Delhi. Such arrangements are called roaming arrangements and such services are called roaming services. Such kind of arrangements are permitted. In brief, when a subscriber moves from his home network and goes to another service area in the network of another operator he is said to be roaming. This is called inter-circle

roaming, roaming from one State to another. When a subscriber moves from one country to another, he is said to be having international roaming based on the

agreement between service providers of one country with another. Similarly, when a subscriber moves from one city to another but within the same State or same service area and he avails the services of another service provider in other districts of the same State he is said to be enjoying roaming services which is called intracircle roaming.

31.

As already brought out in the paras hereinabove, the UAS licences are issued service area (State) wise and the licensed operators are allowed to provide the services within the geographical boundaries of that allocated telecom circle (State). No operator can provide any telecom service in the geographical area in which he does not have a licence for the said service.

32.

The NIA provided service area wise auction of 3G spectrum and that operator who were successful in the service areas for the slots available in that service area were to be allocated 3G spectrum and allowed to provide 3G services. The respondent No. 1/DOT clearly had no provision for permitting the 2G service providers, who have not been successful in obtaining 3G spectrum, to provide 3G services in a clandestine way through the back door riding on the network of the selected bidders who have been issued 3G spectrum and whose licenses have been accordingly amended to include the provision of 3G services.

33.

It is also important to note that the Respondent No. 1 after the announcement of results of bidding, issued a common letter on 21.5.2010 to the selected bidders indicating the amount of spectrum fee to be paid and requiring them to make the payment. A copy of the said letter dated 21.5.2010 is attached herewith and marked as Annexure:P–6. The list of operators and the list of service areas in which the operators won 3G spectrum is given herein below:

List of Circles where 3G Spectrum has been allocated and where non-licesne operators are providing 3G services.

Name of the Circles where 3G spectrum/ Circles where 3G Operator & licence issued services are No. of being provided circles without 3G licence/spectrum Bharti Airtel (13 Circles) Delhi, Mumbai, AP, Karnataka, Tamil Nadu, UP (W), Rajasthan, West Bengal, HP, Bihar, Assam, North East, J&K. AP, Karnataka, Tamil Nadu, Kolkata, Kerala, Punjab, UP (E), West Bangal, Bihar, Orissa, Assam, North East, J&K. Delhi, Mumbai, Kolkata, Punjab, Rajasthan, MP, West Bengal, HP, Bihar, Orissa, Assam, North East, J&K. Haryana, Kolkatta, Gujarat, Maharashtra

Aircel Ltd. (13 Circles)

Reliance Telecom (13 Circles)

Maharashtra, Gujarat, AP, Delhi, Mumbai, Kerala, Punjab, Haryana, UP Bihar, Karnataka, (East), UP (West), MP, HP, J&K. Tamil Nadu and Kolkatta Tata Maharashtra, Gujarat, Teleservices Karnataka, Kerala, Punjab, (9 Circles) Haryana, UP (W), Rajasthan, MP. Vodafone (9 Circles) Delhi, Mumbai, Maharashtra, AP, Karnataka Gujarat, Tamil Nadu, Kolkata, and Kerala Haryana, UP (E), West Bengal. The Government had decided that MTNL & BSNL will be issued spectrum for 3G in all India – MTNL in Delhi & Mumbai and BSNL in the rest of all telecom circles. HP, Bihar, Orissa

Idea Cellular (11 Circles)

MTNL / BSNL

S-Tel (3 Circles)

34.

From the above table it is clear that the private operators got 3G spectrum and licence in a limited number of circles

and none had this 3G spectrum in all India i.e. in all the circles except government operators, i.e. Bharat

Sanchar Nigam Limited/Mahanagar Telephone Nigam Ltd. Provision of 3G services by the non-licensed 2G operators: 35. However, it is clear from the media reports that some of the operators, who were not able to obtain 3G spectrum through auction process, invented a novel and clandestine way of providing the 3G services through a backdoor entry even in those service areas where they were not successful in 3G auction, by entering into intra-circle arrangement amongst themselves. Copies of some of the media reports on this issue are attached herewith and marked as Annexure:P-7 (Colly). 36. The provision of 3G services by entering into intra-circle roaming arrangement in areas where the operators did not get the 3G spectrum is a violation of the licence agreements. In fact the three operators, M/s Idea Cellular, M/s Bharti Airtel and M/s Vodafone, formed a cartel. This fact is clear even from the details of the 3G licences obtained by each one of them. It is clear that the three operators had a pre-bidding secret agreement to work as a cartel and hence decided to obtain licenses in some of the areas instead of getting licence in all the areas and avoid paying the spectrum fee in all the areas, thus causing a huge loss of revenue to the Government and gain to themselves.

37.

It is clear from the details of the successful bidders given in the chart hereinabove that in none of service areas all these three operators had a licence for 3G. This means the three operators i.e. M/s Idea Cellular, M/s Bharti Airtel and M/s Vodafone did not have even a single common circle for 3G licence. It can only be called an interesting and malicious coincidence. It is not difficult to presume that the said three operators agreed amongst themselves not to get a licence in the common circles for all the three operators and save the amount of spectrum fee to be paid for each circle. They can instead enter into intra- circle agreements later on and provide the 3G services even without having 3G spectrum, without paying for 3G spectrum, without permission and without being subjected to rollout obligations for 3G services.

38.

It is the operators who have won bids for 3G spectrum in the different circles whose licences were amended by the DOT to include provision of 3G services and permission to use the 3G spectrum. It is clear that the operators

whose UAS licenses were not amended and who did not get spectrum in those areas were not entitled to provide 3G services in those areas. However, as per the reports, already referred in paras hereinabove, it is observed that three operators M/s. Bharti Airtel, M/s. Vodafone and M/s. Idea Cellular have evolved a back door methodology to provide 3G services in those areas where they have not won 3G spectrum. For example, in Delhi service area Idea Cellular Ltd has not won 3G spectrum and is not entitled to provide 3G services. However, it is clear from their website that they

are providing 3G services under the UAS licence for 2G and have offered various schemes for 3G which are based on usage, time & data rate base etc. A copy of the Idea Cellular Ltd. website page providing 3G services in Delhi service area is attached and marked as Annexure:P-8. 39. Similarly, Bharti Airtel has announced 3G services in Kolkata, Haryana and Maharashtra/Goa, the service areas where it does not have the 3G spectrum and licence. The press reports also state that Airtel is to cover all circles with 3G by March 2012, though Airtel has licences for 3G only in 13 circles out of total of 22 circles in the country. A copy of the press report of Bharti Airtel is attached herewith and marked as Annexure:P-9. 40. Vodafone does not have 3G license and 3G spectrum in Andhra Pradesh, Karnataka and Kerala circles but is

providing 3G services in Andhra Pradesh, Karnataka and Kerala circles by entering into an agreement with Idea cellular Ltd. Vodafone 3G tariff for Kerala is attached

herewith and marked as Annexure:P-10. 41. Media reports attached hereinabove show that M/s. Bharti Airtel, M/s. Vodafone Essar and M/s. Idea have signed roaming agreements that will allow them to offer 3G services nationwide. As per the reports, the deal for such agreement is said to have been announced on July 15, 2011 and this agreement allows both inter and intra-circle roaming across 22 telecom circles in India. In the said

auction held in March, 2010, Bharti Airtel got 3G spectrum in 13 telecom circles, Vodafone Essar got 3G spectrum in 9 circles and Idea Cellular Ltd got 3G

spectrum in 11 telecom circles. However, this deal will enable each operator to cover all the circles across India with the exception of Orissa circle where none of these three operators have 3G license. The reports

clearly bring out that intra-circle agreements will allow each operator to launch services in circles where they are not licensed and where they do not have 3G spectrum in 2.1 GHz band. The reports further point out that the

agreement among these operators will reduce the tariff based competition in 3G services as has been witnessed in 2G services. This means these operators will not compete among themselves on tariff, which they may fix in collaboration with each other and the consumer will have to suffer. Reduction in tariff based competition is

therefore, another name of cartel based working of the operators. Ovum report dated 21.7. 2011 is attached herewith and marked as Annexure:P-11. 42. Idea Cellular does not have 3G license in Mumbai but the media report dated 20th July, 2011 shows Idea launching 3G mobile data services in Mumbai service area. A copy of the said media report is attached and marked as Annexure:P-12. The Idea Cellular limited in their

quarterly report ending 30th June, 2011 on page 6 itself claims that Idea won 3G spectrum in 11 important service area but it currently offers 3G services in 15 service areas through bilateral roaming agreement with other operators and Idea subscribers would soon be able to enjoy 3G service across most part of India through a combination of home network and roaming arrangements. A copy of the quarterly report of the Idea Cellular Ltd is attached and marked as Annexure:P-13.

Mockery of spectrum auction: 43. The provision of 3G services by those operators who have not got 3G spectrum through an auction process makes mockery of first time ever spectrum auction held in India for 3G spectrum. The very purpose of auction was to

realize the true value of spectrum and give it to those bidders who bid the highest amount. It was not, and it could not have been, the intention of the Government to allocate spectrum through auction for 3G services in all telecom service areas to 2 / 3 operators and let other operators ride on the network of the winning operators and enter 3G services through a back door thereby causing a huge financial loss to the national exchequer and gain to the private operators to provide 3G services even in those areas where the spectrum has not been won by such operators. 44. It is important to note that the licensor, DOT has completely looked the other way and has ignored the provision of 3G services by those who have not won the 3G spectrum. The DOT has neither challenged nor

questioned the licensees, both UAS licensees of 2G and UAS licensees for 3G, who have entered into such arrangements and have bypassed the auction process for providing 3G services and have caused huge financial loss to the national exchequer. The inactivity on the part of

the DOT is surprising and needs to be investigated to find out the complicity of the DOT officers, if any, in permitting such fraudulent activity by the three private operators. Violation of both 2G and 3G licence agreements:

45.

Petitioner submits that the both the 2G and 3G licencees are violating their respective licence conditions and causing huge loss to the national exchequer by providing 3G services without spectrum/ licence. Violations by 3G licensees who won 3G spectrum: a) Violation of clause 23.7 of the amended UAS licence for 3G which does not permit 3G service provider to allow any other operator to use its network and provide 3G service; b) 3G licensees sharing 3G spectrum with 2G operator and sharing of spectrum is not permitted as per DOT guidelines dated 2.4.2008; and c) Sharing their active network with 2G licencees whose network is not security cleared for 3G, causing security risk for the country. Violations by 2G licensees who did not win 3G spectrum: a) Providing 3G service under 2G licence. b) No clause 23.7 in their UAS licence permitting use of 3G spectrum- therefore, provision of 3G service is unathourised. c) Not paying any spectrum fee for 3G spectrum causing huge loss to the national exchequer. d) Not bound by any rollout obligations for 3G. e) Not getting their 2G network security cleared for 3G services. f) Provision of 3G services by 2G licensees under roaming arrangements not permitted by the Licensor and also not recommended by TRAI, the Respondent No. 4

g) Such

fraudulent

arrangement

not

considered

or

approved by Full Telecom Commission. h) No consultation /approval from Ministry of Finance since it involved huge financial implications for the National Exchequer. i) No approval from the Security Agencies for providing 3G services with 2G network. j) Huge loss to the national exchequer by not paying the 3G spectrum fee but still providing 3G services and earning illegal revenue for themselves. 2G and 3G are different : 46. Petitioner submits that the licensees having UASL licence with 2G spectrum in 800 or 900 /1800 MHz spectrum

cannot provide 3G services in 2.1GHz band because 2G and 3G are different and 3G services can not be provided without 3G spectrum and 3G license. The telecom

regulator, TRAI, in its recommendations dated 27.9.2006 also specifically held that 2G and 3G services are different and 3G can not be considered as an extension of 2G. The relevant extract of the said TRAI recommendation is reproduced below: “ 3.8. ………Hence the Authority recommends that 3G can not be perceived as an automatic extension of 2G and would need to be viewed as a kind of standalone service for specialised needs and its allocation criteria has to be specific separately…….” 47. Petitioner submits that If 2G licencees could provide 3G services without having 3G spectrum: a) there would have been no need for the TRAI to recommend and DOT to separately and specifically

auction 3G spectrum.

b) there was no need to amend 2G UAS licence and add clause 23.7 for 3G services. c) 2G and 3G services work in different spectrum bands. As already brought out hereinabove that 2G services work in 800/900/1800 MHz bands whereas 3G service is provided in 2.1 GHz band, What is the Fraud: 48. Petitioner submits that, simply stated, the fraud is by the three operators to provide 3G services in those telecom circles : a) Where they have not won 3G spectrum in auction. b) Where their 2G licences have not been amended to permit the use of 3G spectrum. c) Where they have not paid 3G spectrum fee causing huge financial loss of more than Rs.20,000 crores to the Government. d) Where they are violating DOT guidelines dated 2.4.2008,which specifically prohibited spectrum sharing-”Sharing of the allocated spectrum will not be permitted.” e) Where such 2G operators are not getting their infrastructure cleared by security agencies for 3G services creating huge security risks. f) Where they enter into 3G services through a backdoor. Methodology adopted for the fraud: 49. Petitioner submits that the three operators have evolved a novel method to circumvent the rules and avoid payment of 3G spectrum fee by entering into roaming

arrangements. As already brought out herein above, for

telecom licensing purpose the country is divided into 22 telecom circles and Licenses are issued for providing services within the geographical boundaries of a telecom circle. The 2G and 3G licenses have been issued circlewise. These operators have adopted the methodology of roaming arrangements. What is Roaming 50. Petitioner submits that under normal roaming

arrangements, subscribers of one place can make use of the telephone facility at another place when they move outside the area in which they are registered subscriber. Example: Mumbai subscriber of operator ‘A’ coming to Delhi and continuing to have the mobile service in the network of operator ‘B’ in Delhi. For such roaming the operators have agreements under which their subscriber use the networks of each other when they move out of their home location. This concept is used to provide seamless connectivity to a subscriber throughout the country or even abroad under international roaming arrangements with operators of other countries. 51. The concept of “inter-circle” and “intra-circle” has already been brought out hereinabove. Briefly, when a subscriber moves from one telecom circle to another and uses the network of another operator – it is called Inter-circle roaming. When a subscriber moves within the telecom circle from one district to another and uses the network of another operator - it is called Intra-circle roaming. The Petitioner submits that it is this method of intra-circle roaming which has been used by the three operators to

provide 3G services in the telecom circles where they do not have 3G spectrum and licence. 52. Petitioner submits that these three 2G telecom operators invited their subscribers to use 3G services with their own tariff plans and provided the service by using 3G spectrum of another operator. These three operators – Bharti Airtel, Idea Cellular and Vodafone are providing 3G services with 2G licence with intra circle roaming under the garb of DOT order No. 842-725/2005-VAS/269 dated

12.6.2008. 53. Under the said order dated 12.6.2008, DOT had permitted the intra-circle roaming between two operators in

providing 2G services which means that if two operators have 2G licence for the same circle they can have intracircle roaming arrangements and provide 2G services to their subscribers on the network of another 2G operators. A copy of the said letter dated 12.6.2008 is attached herewith and marked as Annexure:P– 14.

This order dated 12.6.2008 is not applicable to 3G 54. Petitioner submits that the said order of the DOT dated 12.6.2008 has been wrongly used by these operators since this order is not applicable in the case of 3G services due to following reasons: (a) In the case of 2G both the operators entering into the roaming arrangement have 2G licence in the same service area. However in the case of 3G one operator has a 3G licence and the other does not have 3G licence.

(b)

In the case of 2G both the operators are bound by the roll out obligations under their respective licences but in the case of 3G only 3G licencee has the roll out obligations and the other 2G operator has no obligations for the roll out.

(c)

In the case of 2G, spectrum is given to all the operators along with the licence but in the case of 3G the spectrum is given only to those operators who have won spectrum through auction and have paid 3G spectrum fee.

(d)

The Respondent No. 4/TRAI had clearly held that 2G and 3G are different as has been brought out in the paras hereinabove and hence 2G order can not be applied to 3G service.

(e)

The Respondent No. 4/TRAI in its recommendations for 3G auction neither envisaged nor recommended any roaming arrangement for 3G services by the 2G operators who have not won the 3G spectrum.

(f)

There was no such provision in the NIA issued for 3G.

It is thus clear the order dated 12.6.2008 issued for the 2G operators can not be applied to the 3G services and hence the provision of 3G services by the 2G operators under the garb of the DOT order dated 12.6.2008 is invalid, illegal and untenable. Provision of 3G services under the garb of intra-circle roaming is illegal and invalid.

55.

Petitioner submits that the provision of 3G services by the 2G operators under the garb of intra-circle roaming guidelines dated 12.6.2008 is illegal, invalid and ought not to be allowed. The illegality of the same is clear from the following: a) One operator has a 2G licence and the other operator has 3G licence in the same telecom circle. b) 2G operator is not having 3G spectrum and has not paid the spectrum fee for 3G. c) 2G operator’s licence has not been amended to include permission to use 3G spectrum. d) 2G operator is using /sharing 3G spectrum of another operator for providing 3G services. Sharing of spectrum is not permitted by DOT order. e) 2G operator’s network is not security cleared for providing 3G services.

56.

The petitioner respectfully submits that the Respondent No. 5 to 7 have entered into a criminal conspiracy to cheat the Government and defraud the government of huge revenue and corresponding gain to themselves. The

criminal conspiracy is evident from their conduct that they deliberately did not attempt to get 3G spectrum in all India when they are already having 2G license in all India. Moreover all the three operators are not having even a

single telecom circle where all three have got license. This coincidence is not strange, because the three operators had a pre-planning to bid for 3G license in few circles and pay only a part of the spectrum fee, but provide service in all India by sharing spectrum with each other. Sharing of

spectrum is specifically prohibited as has been brought out in the paras herein above. Clarifications issued Applications (NIA): 57. Petitioner respectfully in the Notice Inviting

submits

that

the

respondent

No.1/DOT issued NIA on 25.2.2010 inviting applications from the interested parties by 19.3.2008 for 3G spectrum auction, as already brought out in the paras hereinabove. The DOT also provided that if there are any queries with regard to the NIA these may be sent to the DOT and these were to be replied as a consolidated statement. Large number of queries were raised by the prospective bidders. The responses to the queries were issued by the

Government, i.e. by respondent No. 1 as a consolidated statement. A copy of the responses to the queries is attached herewith and marked as Annexure P–15. 58. There are four relevant questions which need to be brought out and which may be relevant for the issue raised in the present writ petition. The relevant/related questions and the answers given by the respondent No. 1/DOT are reproduced below:
Queries 4. Will DOT mandate MVNO and roaming for losing operators in this round of the auction as has happened in other markets where 3G slots are less than number of existing operators? Response At present, mandatory roaming or mandatory MVNO is not part of the Government’s telecoms policy.

11. Please clarify 3G roaming is At present mandatory mandated or whether it will be a roaming is not part of the bilateral decision between operators? Government’s telecoms policy. Roaming arrangements are based on bilateral decision between

operators. 12. Will intra-circle roaming be Intra-circle roaming will be allowed in areas where an operator governed by the UAS/ CMTS does not have a 3G network? licence provisions and applicable Government regulations. 48. DOT order No. 842-725/2005- The roaming policy is VAS/269 dated 12th June 2008 allows applicable to the licences intra-circle roaming amongst UASL and not to specific spectrum licensees. After 3G auctions not all bands. Hence, roaming will existing UASL licensees will hold 3G be permitted. However, at spectrum in any licensed areas due to present, mandatory roaming the limited 3G blocks on offer. Will or MVNO is not part of the customers of UASL licenses who do not Government’s telecoms hold 3G spectrum be allowed to roam policy. on the 3G networks of other UASLs in the same licensed area? Furthermore, till such time as more 3G blocks are released into the market, will it not be customer friendly for the Government to mandate that 3G spectrum holders allow the customers of operators not holding 3G spectrum in the same licensed area to roam on their networks under an administered pricing mechanism? 53. In case a UASL licensee does not succeed in 3G Bid auction in any service area, will he continue to pay the annual spectrum charges at the prevailing rates for 2G services? In case a UASL licensee does not succeed in the 3G or BWA Auctions in any service area, it will continue to pay the annual spectrum charges at the prevailing rates for 2G services, which may be revised from time to time.

59.

It is clear from the table above that the issues regarding some operators not being successful in 3G auction, were raised by some bidders and they sought the views of the respondent circle roaming. No. 1, to provide the service through intraThe reply of the Government was also

clear that mandatory roaming or MVNO is not a part of the Government’s telecom policy, Intra-circle roaming will be governed by the UAS/ CMTS licence provisions and applicable Government regulations.

60.

The Petitioner respectfully submits that there are two issues in this regard which are important to be brought out. One is the applicability of these clarifications to the provision of 3G services and the other is the validity of the same. Applicability of the DOT responses to provision of 3G services:

61.

As regards the applicability of these clarifications for 3G services is concerned it is stated that the clarifications/ response to queries are not applicable to the provision of 3G services as is clear from the “Important Notice” given at the beginning of the Response document itself, a copy of which is already attached herewith. The said “Important Notice” makes it clear that the document is for information purpose only and has no binding force. The relevant portion of the said “Important Notice” is

reproduced below: “This document is for information purpose only and has no binding force. ………The document is not intended to form any part of the basis of any investment decision or other evaluation or any decision to participate in the Auction and should not be considered as a recommendation by the Government or its advisers to any Recipient to participate in the Auctions……………... “The document does not constitute an offer or invitation to participate in the Auction, nor does it constitute the basis of any contract which may be concluded in relation to the Auctions or in respect of any allocation of spectrum…………….” {Emphasis added}

It is thus clear that the said response to the queries was not be the basis for entering into any roaming

arrangement and providing 3G services without having 3G spectrum, without paying for 3G spectrum or having 3G licence. Validity of DOT responses for provision of 3G services: 62. As regards the second issue of the validity of the said response to queries, the Petitioner submits that the said clarification based on DOT letter dated 12.6.2008 is not even valid. The said guidelines dated 12.6.2008 were

issued in the context of 2G services and is not valid for the 3G services. In the normal circumstances an operator

who is issued a licence by the DOT is required to set up his own network as per the mandatory rollout obligations within the specified time and provide the service to the customers in accordance with the provision of the licence. In each service area there are more than 6 to 7 2G operators to ensure enough competition and better quality of service to the subscribers at reasonable rates. 63. Initially when the number of operators were only two in each sector or each service area upto the year 2000-2001, the Government’s intention could be that the operators should set up their own networks and provide the service in all the areas for which the licence have been issued to the private operators. Then the third operator was introduced in the form of Government operators– BSNL / MTNL in all India. At that stage the DOT did not permit intra-circle roaming by which one operator could use the network of another operator for providing the services. The

development of infrastructure was one of the objectives of the Telecom Policy also. 64. However, by the year 2007 – 2008 there were more than 6 to 7 operators in each service area and there was enough competition and enough networks. If all the operators have to set up their own networks, there will be mushrooming of large towers /antennas /BTSs which could create problems with the environment and the local authorities. Therefore, the DOT in June 2008 permitted the intra-circle roaming for 2G licensees providing that 2G service providers in any service area could use the infrastructure of another operator and provide the 2G service for which licence has been issued to the operator. A perusal of the said order dated 12.6.2008

[Annexure: P-14] would clearly show that the roaming arrangement is for 2G services only being provided by the UAS licensees. Moreover, the said order provides that it is only a licensee who may enter into mutual commercial agreement for intra-circle roaming facilities with other licensees. The order does not envisage the intra-circle roaming arrangement between one operator who is having a licence and the other operator who is not having a required licence. A copy of the said letter dated 12.6.2008 is already attached herein above. 65. The intra-circle roaming for 2G services as brought out in the above referred DOT letter dated 12.6.2008 cannot, however, be equated with intra-circle roaming for 3G services for the reasons already stated hereinabove.

66. In brief, therefore, the response given by the respondent No. 1/DOT to the queries raised by various operators is

neither valid nor applicable for the purpose of entering into arrangement for providing 3G services with 2G licence. Any arrangement for providing 3G services with 2G licence under the garb of the said DOT order dated 12.6.2008 or the response to the queries is illegal, invalid and deserves to be declared void. 67. In addition to the above, the Petitioner respectfully submits that, such intra-circle roaming arrangement in respect of 3G services is violation of the licence condition by those operators who won 3G spectrum in auction and whose licences have been amended to permit them to provide 3G services. It is important to note that in response to the specific query being query No. 12, as brought out in paras hereinabove, where the prospective bidders sought to know as to whether intra-circle roaming will be allowed in areas where an operator does not have a 3G network, the Government clearly specified that the intra-circle

roaming will be governed by the UAS /CMTS licence provisions and applicable Government regulations. 68 It is clear that the DOT order dated 12.6.2008 permits

intra-circle roaming only in 2G services. It cannot, however, mean that UAS licence amendment for 3G will

automatically permit intra-circle roaming for 3G services also. If it was the intention of the DOT to permit the operators who have not won the licenses/ spectrum and still provide 3G services in arrangement with the operators who have won the spectrum, nothing prevented DOT to specifically answer the query raised in para 12 in the

positive. This means the DOT could have straight way said that those who do not win the spectrum will be permitted to provide 3G services with by those entering who into have intra-circle won the

arrangement

licences/spectrum. This is not the case as revealed from the facts as stated above and hence the Intra-circle roaming for providing 3G services is illegal, invalid and deserves to be declared void on this ground alone. 69. It is also important to note that even DOT cannot claim that by the said order dated 12.6.2008 and by the said

response to queries in the NIA in respect of intra-circle roaming, the DOT permitted those who were not successful for 3G spectrum to tie up with those who have won 3G spectrum and provide the 3G services without having 3G spectrum, without having their licences amended, without having paid the 3G spectrum fee and without being

subjected to the rollout obligations laid down for 3G licensees. It was clear to the DOT that if such intra-circle roaming is permitted, then the fee paid by one or two successful operators to the Government would be shared secretly among the Respondent No. 5 to 7 putting the national exchequer to a huge financial loss. 70. The services being provided by the Respondent No. 5 to 7 as brought out in the paras hereinabove clearly show how the operators bypassed the rules and regulations and cheated the Government by entering into arrangements among themselves and providing the services even in those areas where they have not got the licence and 3G spectrum. The violation is both by the operators who have permitted such intra-circle arrangements and allowing

the non-successful operators to use the 3G spectrum which was not permitted and also by the operators who were not successful and have violated their UAS licence conditions to provide 3G services when their licence does not permit 3G services. Sharing of infrastructure: 71. In addition to the above, it is important to note that the provision of 3G services by the operators whose licences have not been amended and who have not been allocated spectrum through bidding process by sharing 3G

spectrum of the successful bidders, is also a violation of the guidelines issued by the DOT on 1.4.2008 in respect of the sharing of infrastructure by various service providers, which do not permit sharing of spectrum. 72. There are two types of infrastructures in the telecom sector– passive and active. The passive infrastructure includes telecom towers, shelters, dark fiber, buildings etc. The active infrastructure, on the other hand, includes antenna, feeder cable, Radio Access Network (RAN),

transmission systems and spectrum. As per clause 33 of the UAS licence sharing of infrastructure between Unified Access Service providers (UASL) and any other telecom service providers in their area of operation is permitted. Clause 33 of the UAS licence is reproduced below: “33. Sharing of infrastructure between UASPs and any other Telecom Service Provider in their area of operations: The sharing of infrastructure by the LICENSEE is permitted as below:

1. Sharing of “passive” infrastructure viz., building, tower, dark fiber etc. is permitted. 2. Provision of point to point bandwidth from their own infrastructure within their Service Area to other licensed telecom service providers for their own use (resale not to be permitted) is also permitted. 3. Sharing of switch by the LICENSEE for providing other licensed services is permitted.”

73.

The respondent No.2 in its Recommendations dated 11.4.2007 on the subject of Infrastructure Sharing, recommended that active infrastructure may also be permitted for sharing. However, even respondent No.2 specifically held that spectrum sharing is not to be permitted. The relevant extracts of the Recommendation is reproduced below: “3.2.5 Recommendations: The Authority recommends: (i) The licence conditions of UASL/CMSP should be suitably amended to allow active infrastructure sharing limited to antenna, feeder cable, Node B, Radio Access network (RAN) and transmission system only. Sharing of the allocated spectrum is not permitted.” (Emphasis added)

A

copy

of

the

relevant

extracts

of

the

TRAI

recommendations dated 11.4.2007 is attached herewith and marked as AnnexureP-16. 74. Based on respondent No.2/ TRAI Recommendations the DOT/ respondent No.1, on 1.4.2008, issued guidelines for sharing of active infrastructure also. However, it was

specifically

provided

that

the

sharing

of

allocated

spectrum will not be permitted. A copy of the Press Release dated 1.4.2008 is attached herewith and marked as Annexure P–17. The relevant portion of the said guidelines is reproduced below: “The Department of Telecom has formulated guidelines for Infrastructure sharing among service providers. Under the Guidelines, sharing the active infrastructure amongst Service Providers based on mutual agreements entered among them is permitted. Active infrastructure sharing will be limited to antenna, feeder cable, Node B, Radio Access Network (RAN) and transmission system only. Sharing of the allocated spectrum will not be permitted. The licensing conditions of UASL/CMSP will be suitably amended wherever necessary to permit such sharing.” (Emphasis added) 75. It is clear from the above that the service providers are permitted to share their infrastructure, both passive and active, in the area of their operations but sharing of spectrum is specifically prohibited. 76. Petitioner submits that the provision of 3G services by the 2G operators, whose licences have not been amended and who have not been allocated spectrum for 3G, is a violation of the said guidelines dated 1.4.2008 which do not permit spectrum sharing. Admittedly spectrum has been allocated to the successful bidders for 3G services and, as already brought out hereinabove, their licences have been suitably amended to the permit the use of 3G spectrum. The amendment in the 2G licence, however, does not envisage sharing of 3G spectrum with any other operator. The provision of 3G services by the nonlicenced operators by sharing 3G spectrum with the

successful operators is therefore, violation of the licence agreement and also violation of the DOT guidelines dated 1.4.2008. This is illegal, invalid and deserves to be declared void since, the licensed operators are permitting the use of 3G spectrum by the non-licensed operators which is nothing but sharing of 3G spectrum with the non-licensed operators, which is specifically prohibited. This amounts to criminal conspiracy between respondent No. 5 to 7 Loss of revenue of more than Rs 20,000 crores to National exchequer. Petitioner submits that the provision of 3G services by non-licenced operators, apart from being violation of 2G and 3G licences and violation of the DOT guidelines, has also caused a huge financial loss of more than Rs. 20,000 crores to the national exchequer which could not have been done without the connivance of the concerned officials of the DOT. The loss to the national exchequer is caused due to the 2G operators not having paid for the 3G spectrum fee but still using 3G spectrum and earning revenue from the 3G services. 78. The Petitioner submits that after the successful auction of 3G spectrum, the DOT issued the results of the auction on 21.05.2010. A copy of the DOT letter dated 21.05.2010 is attached herewith and marked as Annexure P- 18. Perusal of the said letter brings out that in five (5) telecom circles namely Punjab, West Bengal, Himachal Pradesh, Bihar and J&K, there were (4) operators and in rest of the circles there were (3) operators. A few samples of the successful bidders in some service areas and the amount of spectrum fee paid by them is indicated below. The table

77

below also shows area wise loss to the exchequer due to non-licenced service provider providing 3G services without paying spectrum fee.
Delhi Circle Winning Price (Rs. Cr) 3316 3316 3316 Successful Bidders Service provided without paying Spectrum fee Idea Cellular Ltd. Bharti Airtel Ltd. Reliance Ltd. Telecom Loss to the exchequer (Rs. Crs) 3316

Vodafone Essar Ltd.

Mumbai Circle Winning Price (Rs. Cr) 3247.07 3247.07 3247.07 Successful Bidders Service provided without paying spectrum fee Loss to the exchequer (Rs. Crs)

Vodafone Essar Ltd. Bharti Airtel Ltd. Reliance Telecom Ltd. Idea Ltd. Cellular 3247.07

A.P. Circle Winning Price (Rs. Cr) 1373.14 1373.14 Successful Bidders Service provided without paying spectrum fee Loss to the exchequer (Rs. Crs) 1373.14

Bharti Airtel Ltd. Vodafone Essar Ltd. Idea Ltd. Cellular

1373.14

Aircel Ltd.

Kerala Circle

Winning Price (Rs. Cr) 312.48 312.48 312.48

Successful Bidders

Service provided without paying spectrum fee

Loss to the exchequer (Rs. Crs) 312.48

Idea Cellular Ltd. Tata Teleservices Ltd. Aircel Ltd. Vodafone Essar Ltd.

Karnataka Circle Winning Price (Rs. Cr) 1579.91 1579.91 1579.91 Successful Bidders Service provided without paying spectrum fee Loss to the exchequer (Rs. Crs) 312.48

Bharti Airtel Ltd.. Tata Teleservices Ltd. Aircel Ltd. Haryana Circle Vodafone Essar Ltd.

Winning Price (Rs. Cr) 222.58 222.58 222.58

Successful Bidders

Service provided without paying spectrum fee

Loss to the exchequer (Rs. Crs) 222.58

Idea Cellular Ltd. Bharti Airtel Ltd. Tata Teleservices Ltd. Vodafone Essar Ltd.

Gujarat Circle Winning Price (Rs. Cr) Successful Bidders Service provided without paying spectrum fee Loss to the exchequer (Rs. Crs) 1076.06

1076.06 Tata Teleservices Ltd. Bharti Airtel Ltd. 1076.06 Vodafone Essar Ltd. 1076.06 Idea Cellular Ltd.

Maharashtra Circle Winning Price Successful Bidders Service provided without paying Loss to the

(Rs. Cr) 1257.82 1257.82 1257.82 Tata Teleservices Ltd. Vodafone Essar Ltd. Idea Cellular Ltd.

spectrum fee

exchequer (Rs. Crs) 1257.82

Bharti Airtel Ltd.

From the tables given above, it is clear that the nonlicensed operators in various telecom circles are providing 3G services without having paid 3G spectrum charges thus leading to huge financial loss to the National Exchequer. If the total of the circles is arrived at by

adding the loss for each circle the total comes to Rs 20.570 crores. 79. The Petitioner submits that the loss to the national exchequer on all India basis can also be observed from the data given in the table of the successful bidders and the amount paid by each, annexed herein above. Briefly the loss is estimated as follows:  BSNL/MTNL paid Rs.16750 crores for all India 3G spectrum/ licence.  Bharti Airtel paid Rs.12295 crores for 13 circles but will provide 3G service in all India.  Idea cellular paid Rs.5768 crores for 11 circles but will provide 3G service in all India.  Vodafone paid Rs. 11617 crores for 9 circles but will provide 3G service in all India If all three above named operators had paid the entire spectrum fee for all India 3G spectrum and licence:
Actual amount which the three operators would have paid Rs.16750 X 3 = Rs 50,250 crs.

Actual amount paid by three operators (Rs.12295/-+ Rs.5768/-+Rs.11617/-) Loss caused to the National exchequer

=Rs.29681 crs.

= Rs. 20,569 crs. Approx. Rs 20,570 crs.

80. From the details stated hereinabove it is clear that three operators namely Bharti Airtel, Vodafone and Idea Cellular won 3G spectrum and paid the 3G spectrum fee only in few circles but are also providing 3G services in those circles where they had not obtained 3G spectrum and did not pay the spectrum fees. The petitioner submits that in actual, the above said three operators are providing 3G services in all circles in India. The said operators have therefore avoided payment of spectrum fee in most of the circles in all India and causing huge financial loss to the national exchequer.

81. The petitioner submits that the Respondent No. 2 failed to check this practice of providing 3G services by the non-licensed operators without paying the spectrum fee. This inaction on the part of the

respondent No. 2 has resulted in huge financial loss to the national exchequer. 82. The Petitioner submits that one of the important issues in the ongoing trial in the Special CBI Court in respect of 2G scam is the huge loss caused to the national exchequer. The present case of 3G scam is also causing huge financial loss to the national exchequer and the case needs to be investigated by the CBI as well by Central

Vigilance Commission [CVC] under the supervision of this Hon’ble Court and it is prayed accordingly. No security clearance for 3G services: 83. The petitioner submits that the provision of telecom services in the country is now subject to clearance of the equipment by the security agencies due to monitoring facility required by them. and The they BSNL/MTNL allocated are 3G

government

operators

were

spectrum earlier

When these government operators

desired to start the 3G services in 2009 without getting their equipment for 3G cleared by the security agencies, the Respondent No. 1 issued a directive to BSNL/MTNL to stop their 3G services till call monitoring services are made available to the Intelligence agencies. A press report dated 09.03.2009 is attached herewith and marked as Annexure: P-19.

84.

The petitioner submits that the directive of the respondent No. 1 to its own units BSNL/MTNL clearly shows that the provision of 3G services without security clearance is not permitted. The Provision of 3G service by the non-licenced operators not only is a violation of Licence conditions, DOT guidelines, and causing huge financial loss to the Government but is also a risk to the national security in the absence of clearance of monitoring facility in the equipment. Due to various terrorist activities in the country using different techniques the Government has been taking various actions. One of the series of acts is the clearance of the telecom equipment by the DOT. The provision of 3G services or any telecom service is subject

to the prior approval of the equipment by the DOT which in turn gets the approval from the security agencies.

85.

The DOT issued a letter to all the operators on 8.11.2010 directing that all the operators should get their equipment tested to ensure that the monitoring facility is available in the equipment /network before using the equipment in their network for providing the telecom services. No service is to be started without prior approval of the Licensor. A copy of the said DOT letter dated 8.11.2010 as available on the DOT website is attached herewith and marked as Annexure: P-20.

86

The Petitioner submits that as per the order of the DOT dated 08.11.2010, no service can be started without putting in place the required monitoring facility. The 2G operators might have informed the DOT about 2G services and got their equipment security cleared for 2G services. However, it is not clear whether these non-licensed operators informed the Respondent No. 1/ DOT about the start of 3G services without having 3G spectrum and 3G licenses. It is also not clear as to whether the DOT has taken any action. In any event, the Petitioner submits

that the action of the non-licensed operators and any action on the part of the DOT would be violation of the license conditions as well as the DOT Guidelines. In case the DOT has given clearance to the 2G operators for providing 3G services without 3G license, it is a violation of the license conditions by the DOT by giving approval to a non-licensed operator to provide 3G services. In case

the DOT has not given any such clearance, then also it is a violation by the non-licensed 2G operators to provided

3G services without getting their equipment / services approved from the DOT from the security angle. Apart

from the violations of the licence or DOT guidelines such activity by the non-licenced service providers causes a huge risk to the national security since unapproved equipment is used by the non-licenced operators to provide 3G services.

87. The petitioner submits that the respondent No. 3 failed to check that 3G services are being provided by the nonlicensed operators without getting their equipment cleared for 3G. It is important to note that terrorism has assumed alarming proportions and any inaction in security matters is a serious lapse. The inaction on the part of

Respondent No. 3 has enabled the non-licensed operators to provide 3G services without DOT approval for

monitoring facility which is the requirement as indicated vide its letter dated 08.11.2010. No roll out obligations for the non-licenced operators:

88.

The Petitioner submits that for each telecom license for provision of various services, the DOT imposes certain rollout obligations in terms of providing the services in urban and rural areas to ensure that the operators do not concentrate only on lucrative urban or Metro areas for provision of services. The importance of the rollout

obligations in telecom service licenses can be seen from the recent media reports bringing out TRAI

recommendations to DOT to cancel the licenses of those operators who have not fulfilled the rollout obligations for their 2G licenses.

89.

The petitioner respectfully submits that the provision of 3G services by the non-licenced operators is also invalid and in violation of the Licence conditions because these non-licenced operators are not subjected to any roll out obligations which are attached with the 3G licencees. As already brought out in the paras

hereinabove, the DOT amended the licence conditions of the successful bidders of 3G and incorporated an

additional clause in the UASL licence as condition No.23.7. This condition inter alia, provides for the roll out obligations to be met by the licencees. The relevant portion of the said amendment and clause 23.7 is reproduced herein below: “ ……Roll out obligations for 3G Spectrum:. The Licencee shall ensure compliance of following network roll- out obligations for 3G spectrum for respective category of the licenced service area(s): 90. Petitioner submits that these non-licenced operators have neither paid the 3G spectrum fee, nor have the 3G spectrum, nor their licences have been amended but they are providing 3G services and they are not subjected to any roll out obligations, to which the licenced operators are subjected. These non-licenced operators do not have to make any expenditure for the fulfillment of roll out obligations which the licenced operators have to incur to meet the roll out obligations. The rollout obligations are provided in clause 3.4 of the NIA and are also included in clause 23.7 of the amended UAS licence for 3G operators. The relevant extracts of the provision relating to roll out obligations have been brought out in the paras

hereinabove. For the Metro areas the service has to be

provided in 90% of the service area within 5 years of the effective date of the licence. And in case of telecom circles at least 50% of the District Head Quarters (DHQs) are to be covered within 5 years of the effective date and out of which at least of 15% of DHQs have to be rural. 91. Petitioner submits that the non-licenced operators will concentrate only on the lucrative urban markets and earn more revenue than the licenced operators who have to meet the roll out obligations in the rural areas also. Thus these non-licenced operators do not pay for the spectrum and do not have to meet any roll out obligations and will be in a more advantageous position than the licenced operators creating non-level playing field for the licenced operators apart from causing loss to the national exchequer and creating security risk for the country. Fate of future auctions. 91. The Petitioner respectfully submits that in case such a fraudulent practice is not checked at the initial stage itself and unless strict criminal action is taken against the defaulters including action as per the licence conditions, such practices would make a mockery of any future auction which the DOT may hold for giving spectrum.

92. The petitioner submits that at present only 3 / 4 slots have been auctioned for 3G spectrum in each telecom circle. More spectrum is likely to be available in future. Whenever this spectrum is made available and the DOT plans to auction spectrum in 3G in future, there is every likelihood that such operators will again connive with the

DOT officers and make a cartel and bid for spectrum only in few areas and share the spectrum in the rest of the telecom circles thus causing future huge loss to the national exchequer. It is possible that such operators may form a cartel and assign telecom circles among themselves for bidding for 3G or any other spectrum in future. Such action would jeopardize any future auction of spectrum and may cause loss to the national exchequer. 93. The Petitioner sent a detailed letter to the Respondent No.1/DOT on 12.08.2011 bringing to their notice the irregularities and the fraudulent practices adopted by these operators causing not only loss to the national exchequer but also creating security risk for the country. However, no action seems to have been taken and no response has been received from the Respondent No.1. The Petitioner also sent a copy of the same letter to Respondent No.2, TRAI and there is no response even from the Respondent No.2. A copy each of the letters sent to DOT and TRAI on 12.08.2011is attached herewith and marked as Annexure P- 21 (Colly). 94. The Petitioner respectfully submits that a complaint on the same issue was also sent to CVC on 23.08.2011 enclosing therewith the letters sent to DOT and TRAI. The Petitioner even offered to make a presentation to the CVC to explain the issue involved in this 3G scam. However, no response has been received from the CVC. A copy of the letter dated 23.08.2011 sent to CVC is also enclosed herewith and marked as Annexure – 22.

95. The petitioner respectfully submits that as per the media report, the government operator MTNL also desired to enter into intra circle sharing arrangement for 3G services with private operators. However, the respondent No. 1 has directed MTNL to put its arrangements with private operators on hold till the government decides whether such deals are permitted under the license condition . The report quotes a senior official of DOT as “Operators have got into a roaming arrangement in circles where they do not have 3G spectrum. They are also selling connections in such circles by using other operator’s network and spectrum. We are examining if this is legal”. A copy of the media report dated 15.09.2011 is attached herewith and marked as Annexure: P-23. 96. The Petitioner respectfully submits that the Petitioner has raised the issues in the present petition in larger public interest and after having informed and requested the concerned authorities for taking necessary action and the authorities not having taken any action, the petitioner is approaching this Hon’ble court to seek directions to the Respondents to start investigations by CBI and/or CVC in the matter under the supervision of this Hon’ble court to examine the role of the concerned operators and the concerned officers of the DOT/TRI in the present 3G scam. The petitioner also seeks directions to the Respondent No.1 and Respondent No.2 to take necessary action for violation of the license conditions as well as various directions of the DOT. 97. The petitioner herein submits that the actions and inactions on the part of the respondents in failing to check

the violations and misuse of 3G license and 3G spectrum by some of the telecom operators is illegal, unlawful, erroneous and against public interest and therefore liable to be challenged on following amongst other GROUNDS

A.

Because the respondents herein failed to check

the

irregularities which have crept in the functioning of the 3G services by misuse of 3G license and spectrum by some of the telecom operators. The inaction on the part of the respondents to check the misuse of the 3G license has caused to the loss over Rs. 20,000 crores to the National Exchequer. This action of the respondents is liable to be enquired into.

B

Because the provision of 3G services is not permitted without having 3G licence and 3G spectrum and some of the operators are providing 3G services without having 3G licence and 3G spectrum.

C. Because sharing of spectrum among the service providers is not permitted and the non-licenced operators are providing 3G services by sharing the spectrum with the licenced operators. D. Because 2G licencees can not provide 3G services without having their licences amended for provision of 3G services and some of the operators are providing 3G services without having their 2G licences amended. E. Because 2G and 3G are different services as defined by the telecom regulator TRAI and 3G is not an automatic

extension of 2G and some of the telecom operators are providing 3G services under their 2G licences.

F. Because provision of 3G services by the non-licenced service providers is a huge loss the National exchequer to the tune of more than Rs 20,000 crs. G. Because the 2G licencees are providing 3G services without getting their equipment cleared from security angle causing a huge risk to the national security. H. Because DOT could not give clearance for the equipment of non-licenced operators from security angle to provide 3G services. I. Because the non-licenced 2G operators are not subjected to any roll out obligations causing a non-level playing field for those to have won 3G spectrum in auction , paid the huge amount of spectrum fee, got their licences amended for 3G and are subjected to strict roll out obligations to provide services in rural areas also. The non-licenced operators can concentrate in lucrative urban markets for 3G services. J Because the intra-circle No.1 for 2G roaming services permitted vide by the

Respondent

order

dated

12.6.2008 cannot be applied automatically to 3G services since in the case of 2G intra-circle roaming both the operators entering into such arrangements are licencees in the same service area where in the case of 3G services such arrangements are being made between one licencee and one non-licencee.

K. Because TRAI, the telecom regulator never recommended that 3G services can be provided by the 2G licencees without getting 3G licence/ 3G spectrum and without paying the 3G spectrum fee and by only making an arrangement with the selected 3G operators and sharing their spectrum.

L.

Because the DOT neither intended nor could it do so, to allow the non-licenced operators to provide the 3G services without paying for 3G spectrum fee and without getting their licences amended for provision of 3G services.

M

Because the provision of 3G services by the non-licenced 2G operators is a violation of their 2G licence which allows them to provide service in the area for which licence is issued and which specifically prohibits the provision of any service for which a separate licence is required. 2G licencees are violating both the provisions of their 2G licence by providing service outside their area of operation and also providing service for which a separate licence is required.

N. Because

such

cartelization

would

lead

to

non-tariff

competition among the 3G operators leading to increase in tariffs and loss to the consumers.

O. Because such cartelization would jeopardize any future auction of scarce spectrum leading to a huge loss to the national exchequer and gain to the private operators.

P.

Because the response given by the DOT to the queries raised by the prospective bidders is not a part of the 3G licence and it was specifically stated in the response itself that such responses are for information purpose only and have no binding force. It is further stated that these responses do not constitute the basis of any contract which may be concluded in relation to the Auctions or in respect of any allocation of spectrum.

Q. Because the Respondent No. 2 failed to check the huge loss to the national exchequer in the non-licenced operators providing 3G services without paying 3G spectrum fee.

R

Because the respondent No. 3 failed to check that the provision of 3G services by the non-licensed operators causes a huge security risk for the country because, their equipment is not cleared for 3G services.

S.

Because the respondents failed to appreciate that the very purpose of auction was to realize the true value of spectrum and give it to those bidders who bid the highest amount. It

was not, and it could not have been, the intention of the Government to allocate spectrum through auction for 3G services in all telecom service areas to 2 / 3 operators and let other operators ride on the network of the winning operators and enter 3G services through a back door thereby causing a huge financial loss to the national exchequer and gain to the private operators to provide 3G services even in those areas where the spectrum has not been won by such operators.

T.

Because the provision of 3G services through Intra Circle Roaming Arrangement in respect of 3G services is a violation of 3G license, condition No. 23.7 which has been added in the 3G license, because the said license condition does not permit the licensees to share their 3G spectrum with non-licensed operators.

U. The above grounds are in the alternative and without prejudice to one another and the petitioner crave leave of this Hon’ble Court to add further grounds at the time of hearing with the permission of this Hon’ble Court. 98. The Petitioner has not filed any other appeal, petition or other proceedings in this Hon’ble Court or in the Hon’ble Supreme Court of India or in any other court with respect to the subject matter of the present Writ Petition.

PRAYERS

In view of the above background the Petitioner prays for the following relieves: a) issue a writ of mandamus or any other writ order or directions directing the Respondent No. 1 to 4 to take steps for stopping the use of 3G services and spectrum by the Respondent No. 5 to 7

being non-licensed operators; b) issue a writ of mandamus or any other writ order or directions directing the Central Vigilance Commission Investigation and/or Central Bureau of

to investigate the whole issue of

provision of 3G services by the respondent No. 5 to 7 being non-licensed operators and

connivance/actions and inactions on the part of some officials of the Respondent No. 1 to 4 and take appropriate action. c) issue a writ of mandamus or any other writ order or directions directing the Central Vigilance Commission to investigate the actions and

inactions of the respondent No. 1 to 4 for having violated license conditions and various policy guidelines of the DOT as referred in the Petition and inturn causing huge financial loss to the

national exchequer and corresponding gains to the Respondent NO. 5 to 7 d) issue a writ of mandamus or any other writ order or directions directing that the investigations by the Central Vigilance Commission and/or

Central Bureau of Investigation

should be

conducted and monitored under the supervision of this Hon’ble Court. e) issue a writ of mandamus or any other writ order or directions directing the Respondent No.1 to 4 to take necessary action against the Respondent No. 5 to 7 who have violated license conditions and various policy guidelines of the DOT as referred in the Petition; f) award cost of the proceedings in favour of the petitioner and against the respondents. g) pass any other order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

PETITIONER THROUGH

[MURARI KUMAR & NIMIT MATHUR] ADVOCATES ANAND & ASSOCIATES 466, LAWYERS CHAMBERS DELHI HIGH COURT NEW DELHI NEW DELHI DATED: .09.2011

IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRA ORDINARY ORIGINAL JURISDICTION) WRIT PETITION [C] NO.____________/2011 In the matter of A Public Interest Litigation AND IN THE MATTER OF: Yakesh Anand Versus Union of India & Ors AFFIDAVIT I, Yakesh Anand aged 55 years, S/o S/o Late Dr. K.L. Anand R/o S-471, Greater Kailash, Part-II, New Delhi do hereby solemnly affirm and declare as under : 1. That I am the petitioner in the above mentioned writ petition and as such am fully conversant with the facts and circumstances of the case and able to depose to the same. 2. I am a practicing advocate before the Hon’ble Supreme Court and this Hon’ble Court for last over 30 years. That I alongwith my associates have filed and pursued various writ petitions concerning public interest issues, before this Hon’ble Court, Hon’ble Punjab and Haryana High Court and before the Hon’ble Supreme Court. That I alongwith my associates have been taking up various issues of public and general interest with the concerned authorities as the public spirited citizen. .. Respondents … Petitioner

3.

I have filed the present petition as a Public Interest Litigation.

4.

I have gone through the Delhi High Court (Public Interest Litigation) Rules, 2010 and do hereby affirm that the present Public Interest Litigation is in conformity thereof.

5.

I have no personal interest in the litigation and neither myself nor any of my associates are interested would in any manner benefit from the relief sought in the present litigation save as a member of the General Public and the person interested in pursuing issues concerning public interest. This petition is not guided by self-gain or gain of any person, institution, body and there is no motive other than of public interest in filing this petition.

6.

I have done whatsoever inquiry/ investigation which were in my power to do, to collect all data /material which was available and which was relevant for this court to entertain the present petition. I further confirm that I have not concealed in the present petition any data / material / information which may have enabled this court to form an option whether to entertain this petition or not and /or whether to grant any relief or not.

7.

The annexures filed alongwith writ petition are all in public domain and are available in the official websites of the respondent No. 1 & 4.

8.

The contents of this affidavit are true and correct.

DEPONENT

VERIFICATION I, the deponent above named do hereby verify the contents of this affidavit are true to my knowledge and belief; no part of it is false and nothing material has been concealed therefrom. Verified at New Delhi on __ day of September, 2011.

DEPONENT

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