The telecom companies, under scrutiny for having benefited in the alleged 2G spectrum scam, on Tuesday told the Supreme Court that allocation of the air waves since 2003 should be scrapped if the first-come-first serve policy adopted during the tenure of former Telecom Minister A. Raja is held illegal.

In a clear reflection of the war among telecom players, senior advocate Harish Salve, appearing for Etisalat DB Telecom Pvt Ltd, submitted that the government never followed the policy of auction for 2G spectrum allocation and many companies benefitted by getting additional radio waves without any charge since 2003.

“If this (lack of auction) can be a ground for cancellation of allotment, then all such additional allocation to other telecom companies since 2003 should be scrapped,” Mr. Salve contended before a Bench comprising justices G. S. Singhvi and A. K. Ganguly.

Contending that additional spectrum was given to established companies by the government without charging them since 2003, Mr. Salve said the Department of Telecom did not follow the recommendations of the Telecom Regulatory Authority of India (TRAI), charging the companies for additional spectrum at that time.

“CAG report says that it caused a loss of Rs. 36,993 crore by neglecting TRAI recommendation which had asked the government to charge the comapny for granting additional spectrum,” he said.

“Either cancel all spectrum allocation which was done without auction and then put it on auction. There cannot be discrimination among the service provider,” Mr. Salve said, adding the “decision-making process on the part of the government has been horrible, to say the least. This is a mess created by the government and it must come out with solution.”

Etisalat DB Telecom Ltd, earlier known as Swan Telecom, is a joint venture between Etisalat and Dynamix Balwas Group. Etisalat DB and its subsidiary has the Unified Services Access License in 15 circles.

Shahid Usman Balwa, promotor of Swan telecom, has been arrested by the CBI in connection with the 2G scam.

The court was hearing the PILs filed by an NGO Centre for Public Interest Litigation (CPIL), and Janata Party president Subramaniam Swamy seeking cancellation of licenses to companies which were granted during the tenure of former Telecom Minister A. Raja.

They alleged the allocation made by the DoT when Mr. Raja was the minister, was marred by “multiple illegalities, corruption and favouritism”.

They further submitted that TRAI had recommended cancellation of 69 out of the 122 licences as the licencees had failed to roll out their services as stipulated by the condition on which they were given the licences.

“The allotment of spectrum in 2008 at the price prevailing in 2001 on first-come-first-serve policy followed by the government was arbitrary, illegal and was meant to benefit few telecom companies,” CPIL counsel Prashant Bhushan had earlier submitted.