Karnataka High Court
Zee Telefilms Limited And Ors. vs State Of Karnataka And Ors. on 10 January, 1997
Equivalent citations: ILR1997KAR1071
ORDER V.P. Mohan Kumar, J.
1. The petitioners herein challenge Annexure-H order issued by the 1st respondent permitting the 5th Respondent to use the electrical poles of the 4th respondent Board for the purpose of laying their Cable TV Network. 'Shorn of detailed argumentative pleadings, the brief facts of the case are as follows:
2. The petitioners are established Cable TV Network operators in the cities of Bangalore and Mysore since about one year. The 1st petitioner applied for permission to the 1st respondent for the use of electricity poles for the purpose of laying cable wires. In response to the said application, the 2nd respondent sent Annexure-B communication intimating that the 1st respondent has constituted a Committee to examine the request for the use of the electricity poles of the 4th respondent and that the said Committee would examine the representation of the petitioner and others. It called upon the petitioners to furnish the information noted therein. On 21-9-1995, the petitioner submitted its comprehensive bid, Annexure-C. By another communication, Annexure-D dated 23-9-1995, the petitioner offered Rs. 252/- per year per pole for exclusive user and Rs. 108/-per year per pole for non-exclusive user. Again a letter Annexure-E dated 23-9-1995 from the 2nd respondent was received on 5-10-1995 by the petitioner calling upon them to indicate the rate in the event of non-exclusive user of the poles. This conduct of the 2nd respondent is clearly mala fide, as the said letter requested the petitioner to submit the reply by 27-9-1995, whereas the said letter itself was posted on 28-9-1995. As the required information had already been furnished by them, the petitioner did not submit any further reply. Thereafter, the petitioner was expecting an intimation intimating the date of opening the tender and hoped that the State would follow a fair procedure for consideration of different competitive bids. While so, they were shocked to learn from a newspapers that the 5th respondent has been selected to set up Cable TV Network for Karnataka. On coming to know of the same, the petitioner faxed a representation to the Chief Minister of Karnataka on 7-12-1995 reproducing their offer and sought to review the decision to confer the largesse to the 5th respondent. Subsequently, the petitioner received the order dated 6-12-1995 which is Annexure-H whereby the 2nd respondent has in an arbitrary and mala fide manner selected the 5th respondent for the grant of exclusive permission for the use of electricity poles for its cable network. The arbitrary and mala fide nature of the order is evinced from the circumstances that the order states that the 5th respondent shall provide two satellite channels to the Government and the K.E.B. free of cost. This cannot be done without prior permission of the Central Government and besides, the 5th respondent has no facility to provide the same as well. The 5th respondent has no ability, reputation or standing for establishing a cable network. Besides, the State Government had not floated any tender for establishing an 'Information Superhighway' in the State. The grant of licence in this behalf is the exclusive privilege of the Central Government under the Telegraph Act. The petitioner was never asked to give its offer to establish 'Information Superhighway'. All that was sought for was the use of poles for laying the cable network. Therefore, the establishment of 'Information Superhighway' is absolutely unconnected and irrelevant for the request of the grant of permission to establish the Superhighway and no tender had been floated in this behalf. The petitioner has offered Rs. 252/- and Rs. 108/ - respectively for exclusive and non-exclusive user of the poles. The State Government has granted the permission to the 5th respondent for far lower rate. Besides, the Government while granting permission has abridged the petitioner's right relating to exercise of freedom of speech in the guise of power under Article 19(2) of the Constitution. The State is bound to provide all infrastructure to all to enable them to exercise a meaningful exercise of the right of freedom. The only right of respondent Nos. 1 to 4 in this behalf is to evaluate and assess different competitive tenders received. No notice was given to the petitioner inviting tenders for establishing 'Information Superhighway' nor were they called for any negotiation in this behalf before granting the largesse to the 5th respondent. The 5th respondent is an influential industrial house able to obtain various favours from the bureaucratic and political circles. The 1st respondent had not followed fair and legal procedures and there is no need for respondents Nos. 1 and 4 to consider any secret offer by the 5th respondent. Had the offer for 'Information Superhighway' been made known to the petitioner, they would have also submitted their offer. In any event, the State Government cannot grant permission for such sophisticated system arbitrarily. By their conduct, respondents Nos. 1 and 4 have created a monopoly in favour of the 5th respondent which is prejudicial to the fundamental right of freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India. The entire process of administrative decision is vitiated by mala fides; it has taken into account irrelevant consideration while excluding relevant consideration. Annexure-H is, therefore, liable to be quashed.
3. All the respondents have filed separate and detailed statement of objections. The 1st respondent contended as hereunder:
4. That the permission granted to the 5th respondent has not affected the petitioner in any way. The action taken by the 1st respondent is with intent to provide communication facility to the people and in general to improve efficiency of communication arrangements in so far as the Government is concerned, that the action is not violative of the constitutional guarantee under Article 19(1)(a), that the said right is neither violated nor infringed, that the State has very liberally and without reservation promoted the Cable TV operators operating within the State and has taken prompt action to implement the statutory provisions, that there was no attempt to discriminate between the petitioner and others, that the Cable TV operators in the State have so far been operating without K.E.B. poles, that it is only now that the permission is granted for the first time to use the K.E.B. poles, that by such permission the petitioner's right for dissemination of information will not in any manner be affected, that the allegation regarding mala fide made on the basis of delay in forwarding the letter dated 23.9.1995 is denied, that the contents of the letter dated 23.9.1995 querying about the rate offered by the petitioner for the use of the poles exclusive and non-exclusive user was in fact telefaxed on 25.9.1995, this shows the bona fide of the respondent, that the petitioner had been given sufficient opportunity by the respondents and the petitioner were informed well in advance the criteria adopted by the respondents, that the 1st respondent had constituted a Committee to consider the grant of the permission which Committee submitted Annexure-R1 report, that it shows that the Committee considered the request submitted by all including the petitioner and the 5th respondent objectively, that the State Government took a decision after analysing and evaluating the competitive offer, that Annexure-H is a public document, the allegation of arbitrariness and mala fide made by the petitioner are denied, that the 1st respondent believes that the grant of permission to use the poles to more than one would not be in public interest, and on the contrary, such grant would affect adversely the transmission of electricity, that the overriding consideration of the Government in this behalf had been the safety of the people, that the impugned order had been made for the benefit of the people, that the power of disposal of the K.E.B. poles by the Government is well within the competence and jurisdiction of the 1st respondent, that if any licence or permission under the Telegraph Act is needed for establishing the Information Superhighway, it will be secured, that the criteria adopted for considering the offer is on the basis of technology, that the 5th respondent had offered to establish Information Superhighway by use of more modern and sophisticated equipments etc, that, therefore, it was considered that the proposal of the 5th respondent was superior compared to the petitioner and, therefore, it was accepted, that the petitioner was very well aware of the criteria adopted by the committee while making the selection, that it is not correct to say that the decision should be taken on the basis of rate offered, that the decision was taken taking into account only relevant considerations as explained above and eschewing irrelevant considerations, that Information Superhighway is only incidental to the establishment of Cable TV Network, and is only a technological improvisation, that the impugned action of the respondent is just and proper, that by the impugned order the petitioner's right to operate Cable TV is in no way affected, that the impugned action will only augment the facilities of the common man and that the present proceeding is intended to hamper the progressive action of the State.
5. The 4th respondent has filed objection statement containing averments almost similar to that is contained in the statement of objections of the 1st respondent. In addition, they stated as under:
That the contract has been granted to the 5th respondent after considering the claim of the petitioner as well, that all the poles for carrying electrical energy placed throughout Karnataka belonged to the 4th respondent, that the 1st respondent initiated the proceedings in order to regulate its use properly, that the use of the poles by the 5th respondent will not in any way affect others functioning as Cable operators in Karnataka, that by permitting the 5th respondent to use the poles, the right of the petitioner is not affected, that the petitioner had adequate opportunity to present their case, that the Committee had submitted its report after studying the claims of all offerees at length, that the allegation that the 1st respondent cannot deal with the K.E.B. poles is denied, that one of the criteria adopted by the Committee while examining the claims of the respective offerees is the superior technology adopted, that the petitioner was well aware of the said criteria, that it is not correct to contend that the decision should have been made only on the basis of the charges, that the decision to grant permission to only one purely based on safety that the Government decision to use a channel for its own use is in tune with the present policy of liberalisation, that Information Superhighway is only incidental to the establishment of Cable T.V. Network and is a technological improvisation, that irrelevant materials have not influenced the decision of the respondents to choose, the 5th respondent and that the Committee has taken into account only relevant considerations.
6. The 5th respondent, the grantee of the privilege, has filed a detailed statement of objections which deals in extenso all contentions of the petitioner and also highlights its superiority over the petitioner for the claim. Excluding the averments already covered by respondents Nos. 1 and 4, the 5th respondent in addition states as follows:
That the petitioner had made the application even without an invitation to tender or auction by the Government and thus having participated in the presentation to the Committee, they are estopped from now challenging Annexure-H order. It is averred that the 5th respondent is proposing to set up Cable TV Network as an "Interactive Fibre Optic Information Superhighway" on all the poles in such a manner that every house in the Bangalore City will be entitled to be connected to it. It is further stated that this network will enable transmitting of video, audio and data signals to the households, that the proposed investment would be around Rs. 100 crores for Bangalore and over Rs. 500 crores for the entire State, and as against this, the offer of the petitioner was only for laying coaxial video cable of a vintage variety involving an investment not exceeding Rs. 20-25 crores, that the petitioners have been clandestinely using the K.E.B. poles for over one year, that the petitioners are merely interested in delaying the implementation of the project of the respondents, that the 5th respondent intends to use optical fibre technology, that the 5th respondent intended to establish Information Superhighway for the objects detailed by them, that the Government will have access to reach each household, that it will boost industrial sector, that it will aid enhanced investment, that electricity poles will be put to more beneficial use by the 5th respondent than the petitioner, that the petitioner's network cannot achieve the same result as that of the 5th respondent, that the petitioner is not a cable operator within the meaning of the Cable Television Network (Regulation) Act, 1995, that this is dear from Annexure-R6 agreement executed by the petitioner, that the 5th respondent is developing sophisticated hardware to lay a network for carrying on cable television services, telephonic services, data communication, etc, and that the selection of the 5th respondent is hence just and proper. It is further alleged that the petitioners belong to the International Media.
Conglomeration headed by Mr. Rupert Murdoch, that they have the ambition to see that the Indian households are looked on to the programmes beamed by them. It is further averred that the 2nd petitioner is interested in beaming the signals from the Star TV platform which is owned by Mr. Rupert Murdoch and thus monopolise the field. It is stated further that the Indian Television Sets can tune at present only 13/14 channels, that the petitioner as part of Star TV platform would monopolise the 13/14 channels, that by establishing large number of ground control room the petitioner is intending to practice an unhealthy monopolistic control, that the 5th respondent's Information Superhighway will provide all householder with necessary hardwares and that the entry of the 5th - respondent will not affect the several operators who could also involve with this respondent.
7. The statement of objections further deny all the averments made by the petitioner in the Writ Petition, making parawise denial. By and large, the averments are similar to that made by respondents Nos. 1 and 4. In particular it is stated that the petitioner being a company, it cannot allege infringing of Article 19 of the Constitution, that establishing a low quality, inferior quality and antiquated Cable TV will be denial of the right to receive superior facilities, that it would be only appropriate to lay a sophisticated system which would also enable the people to enjoy all sophisticated advantages, that for laying Cable TV Network, one need not depend on electricity poles alone and the petitioner and others have already laid the network and the present attempt of the petitioner is to monopoloise the Cable TV Network, that this is borne out by their own showing, that the impugned order does not in any way infringe freedom of speech or press and no monopoly or exclusive right is created thereunder in favour of the 5th respondent, that the petitioner's right to dissemination of information is in no way curtailed by the impugned order, that only few Electricity Boards in India have permitted the petitioner to use the electricity poles and in large number of places, they are using it clandestinely, that the petitioner intend to create a monopoly in the matter of Cable TV, that since the petitioner cannot claim any fundamental right enshrined under Article 19(1) of the Constitution, there is no question of their waiving the same, the allegation that the petitioner came to know of the order only from the newspaper is also incorrect, that the allegation of arbitrariness and mala fide are not supported by any materials and is baseless, that the 5th respondent who is tied up with M/s. United International Holdings Inc. has ability, reputation and standing for establishing cable network in the present situation, that it is not necessary to invite open tender, that there is no need for obtaining any licence under the Telegraph Act from the Central Government and it is further submitted that if such permission is needed, it will be secured by the 5th respondent, that the petitioner was also intending to upgrade its system to Information Superhighway, that while this offer of the petitioner was to take place in future, the 5th respondent's offer was to take effect at present and immediately, that the petitioner had participated fully in the selection process, that having regard to safety factors exclusive permission alone can be granted for the user of K.E.B. poles, that the 5th respondent has superior state of art network, that the 1st respondent compared the same with the facility offered by the petitioner and made the choice, that there is no prohibition in the State Government in seeking any benefit while permitting to use the electricity poles, that the petitioner had also offered similar benefits, that by accepting the offer of the 5th respondent, the State Government can interact with the people, that the Government has power to make the appropriate choice, that it is the prerogative of the State Government to consider every issues while parting with the right that will benefit the citizen and any such consideration cannot be described as improper, that the petitioner had participated in the negotiation with full notice of the requirements of the 1st respondent, that the allegation that the respondent is close to bureaucracy and party in power are all incorrect and false, the allegation that the State Government cannot grant permission to start Information Superhighway is also incorrect, that mere granting of permission to this respondent to lay optic fibre along the K.E.B. poles does not take away the right of the other cable operators to operate, that establishing of Information Superhighway is not connected with the laying of the Cable along the K.E.B. poles, that the allegation that the petitioner has immense knowledge and expertise in laying cable television cables is not correct and even if true, does not mean that the petitioner should be given the permission especially when they are linked with media baron Mr. Rupert Murdoch who has already 7/8 satellite beaming into the country, that the allegation that the respondents have taken into account irrelevant consideration is wholly incorrect, that this respondent had not made any secret offer to the 1st respondent as alleged, and that there has not been any arbitrary or unconstitutional exercise of power by the repository of powers.
8. All these averments have been denied by the petitioner by filing a detailed rejoinder reiterating the illegality of the granting of the largesse, the alleged secret deal, the infringement of the fundamental right guaranteed under Article 19(1) of the Constitution, the Government claiming the benefit of two free channels in barter to the right to use the K.E.B. poles and the low tariff offered by the 5th respondent. Mr. Jaitley made his submissions on behalf of the petitioner and the Advocate General Mr. Vijayshankar, Mr. Sundaraswamy and Mr.Udaya Holla appeared for the respondents.
9. Elaborating the grounds of attack several contentions have been urged. It is contended that the 5th respondent has been conferred with a larger largesse than bargained for; that there was no transparency in the negotiation; that irrelevant consideration prevailed with while making the selection of 5th respondent and that relevant considerations have been ignored; that the decision making process itself is vitiated; that there is illegal curtailment of freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India than by a process permissible under Article 19(2) thereof and that there is no fairness in the grant made to the 5th respondent.
10. At the outset, we may keep in mind the scope of judicial review in these areas. Christopher F. Edley, JR. in his book Administrative Law-Rethinking Judicial Control of Bureaucracy, has picturesquely described the origin of an administrative order in the following manner:
"...The result, however, is that teams of specialists may work to produce pieces of a complex agency decision, and middle-level supervisors may stitch the pieces together into a broad rule or order, and the administrator may look over the product to make sure that it is the proper size and shape. But it may be that no one in the agency has the time, competence, and responsibility to ensure that the result is more like Michelangelo's David than Frankenstein's brute. Indeed, one respected commentator has observed that judicial review may provide the first integrated hard look at the agency's analysis and conclusions."
Though the Courts are endowed with this power to take a hard look at the decision of the administrator to ascertain whether it is Michelangelo's David or Frankenstein's brute, in this exercise of power of judicial review the Courts have declared certain conditions to be satisfied before it interferes with the impugned action, namely:
i) it is arbitrary or capricious;
ii) it amounts to abuse of discretion;
iii) it is substantively ultra vires;
iv) it is procedurally ultra vires;
v) or that it is jurisdictionally ultra vires.
In this behalf the Supreme Court of India had occasion to examine the various facets of power of judicial review and in regard to contractual dealings of the State and the decision taken in that behalf, the Supreme Court has in TATA CELLULAR v. UNION OF INDIA, stated as follows:
"85. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down."
11. We would examine whether the infringing action is illegal applying the above parameter and ascertain whether this Court need review the same on any of the above grounds or for all of the above grounds.
12. Before examining the question as to whether the awarding of the largesse to the 5th respondent is arbitrary or capricious, we have to advert to the factual backdrop in this case. It may be noted that the whole issue originated with the petitioners also offering to take the largesse without any tenders being floated in this behalf. To begin with, they approached the first respondent along with others seeking permission to use the K.E.B. poles for extending the Cable T.V. Network in the State. This is seen from their letter dated 19-8-1994. In that letter of theirs addressed to the Chief Minister, they offered inter alia as follows:
"We, therefore, wish to establish an organized Cable Network based on State of Art, Technology in all important cities and towns of your State. Such network would be capable of providing the quality signals to the cable operators and the whole city\town and they will be able to further distribute the quality signals to their subscribers. Our network will be able to cover all channels available in the sky having capacity to show around 50 channels as well as to cover important events being held in the city live and show it to subscribers. Our network will work in close association with local administration of each city and town. The local administration can enjoy the following benefits from our network free of cost,
1. Messages of national and social importance will be shown for the benefit of general public.
2. The local Administrator/Deputy Commissioner/Commissioner of Police/Municipal Commissioner or any other Senior Administration Officer of the town will be able to directly communicate the message through Cable TV Network to the general public. At present, they are dependent upon Print Media/ Radio/TV and for which local administration has to spend lot of money.
3. All local problems/information regarding demonstration/road closed/road diversion, any important information regarding public exigencies can be communicated very fast and without cost by the local administration.
4. Government policies/information for the public can be communicated through this media for the benefit of all.
For establishing such a network we have to import equipments from advanced countries like USA, Canada etc using high quality professional co-axial cable. The total investment will be to the tune of approximately 20-25 crores within a period of 2-3 years.
We have to use either State Electricity Board's Poles or install our own poles to lay our cable. We are willing to pay local administration charges for using their poles or charges for installing our poles on their land."
Along with them there were other intending offerees as well like Asianet, Times TV, Hindujas and U.B. Group. The respective applicants had their own offer to make. These facts would disclose that the 1st respondent had not proclaimed that it intended to farm out the right for the use of the K.E.B. poles for the purpose of extending Cable T.V, and it had not invited tenders from intending bidders. Therefore, one cannot obviously deal with the disposal of the right to use the K.E.B. poles made by respondents Nos. 1 to 4 in the same manner as they would have disposed of the same by virtue of tenders. All that is to be demonstrated is whether the decision making process is rational and bona fide. In order to bring home the obligation of the State while disposing of the largesse, the Learned Counsel for the petitioner relied on the following passage from :
"...It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
Besides the above, the Learned Counsel also cited and invited my attention to the following observation made by the Supreme Court after review of various authorities:
"In the instant case, the instrumentalities of the State invited tenders for the supply of fresh buffaloes and cows milk and, therefore, this case has to be decided on the basis of bid by the tenderers. There was no question of any policy in this case. It is open to the State to adopt a policy different from the one in question. But if the authority or the State Government chooses to invite tenders then it must abide by the result of the tender and cannot arbitrarily and capriciously accept the bid of respondent No. 4 although it was much higher and to the detriment of the State..."
But at the same time, we should also advert to the observation of the Supreme Court regarding the power of the Executive in the matter of commercial dealings by the State as made in :
"At times it is said that public authorities must have the same liberty as they have in framing the policies, even while entering into contracts because many contracts amount to implementation or projection of policies of the Government. But it cannot be overlooked that unlike policies, contracts are legally binding commitments and they commit the authority which may be held to be a State within the meaning of Article 12 of the Constitution in many cases for years. That is why the Courts have impressed that even in contractual matters the public authority should not have unfettered discretion. In contracts having commercial element, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons, keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognised by Courts while dealing with public property. It is not possible for Courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasi judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of "play in the joints" to the executive."
This envisages that it has to be conceded some measure of freedom of "play in the joints" while the State enters into a commercial venture, provided, of course, the decision has been taken bona fide.
In this case, after all intending offerees submitted their offer, it is seen that the Government constituted a Committee to go into the offers made by the respective offerees. It being a technical aspect, respondents Nos. 1 and 4 delegated the function of ascertaining the factual details to an expert committee. That committee held repeated discussions with the intending offerees including the petitioner and the 5th respondent.
13. The electricity poles no doubt belong to the 4th respondent. The same has been erected for the use of transmitting the electrical energy generated by it. But, now the same is being put to an additional use which is not part of the function for which the 4th respondent has been constituted. The making use of the electricity poles for the use of the Cable TV can also be a prelude to various other potentialities. The cable itself can be made use of or deep transformation in information with ability to gain access to data, information and ultimately to gain knowledge in which process, it can help us to discover, invent, teach and learn. The potentialities of such development is immeasurable. This expansion has been described as "The Death of Geography, and the Rise of Anonymity" In an article published in the American Enterprise March/April 1996, its potentialities are epitomised thus:
"...On the internet, distance has no bearing on cost (unlike the telephone). The Internet (unlike broadcasting) not only delivers the world to us, but also delivers us to the world-we can talk back. And the Internet (in contrast to something like short-wave radio) provides us with the ability to transmit visual images, text, and decent audio.
The significance of place is being undercut by the new information technologies. We can now learn, almost instantly, the thoughts of someone on the other side of the globe. His whereabouts become an immaterial as his shoe size. This is causing what might be called the death of geography."
Further the article concludes thus:
Sometimes, electronic pioneer John Gilmore suggests, cyberspace is nothing more than "a telephone network with pretensions." But where it has been shorn of geographic identity and personal responsibility, it can become something more complex. It can produce what science fiction writer William Gibson calls "consensual hallucination." As a New Yorker canine cartoon puts it: "On the internet, nobody knows you're a dog."
14. When the 4th respondent was making available a means which can be put no such varied use, as referred to above, which in turn could trench upon the rights and duties of the 1st respondent, it is essential that it involves the 1st respondent as well in such decision making process. And when 1st respondent ventures on such technical and specialised aspect, it is proper it entrusts the primary function of investigation to a competent body, a Committee, to study various aspects involved and then advise the 1st respondent. These are all matters which require certain specialised knowledge. It also needs that exclusive attention is paid to examine all the related issues. In such circumstances, the decision making body should constitute an expert body to aid at forming the correct decision. The specialised knowledge on the subject should be provided by the Committee using the paradigm of science. The Committee should furnish the report on which the decision making body can act. In several areas it is not possible for the decision making body to come to a correct conclusion unaided by the required investigation, in such a situation, the decision making body could constitute a Committee which can investigate utilising its specialised knowledge like a "Scientist bent over the laboratory bench, an accountant dissecting a balance-sheet or a mechanic servicing a helicopter". Hence, the constitution of the Committee to examine the offers is the correct and proper procedure. The said Committee discussed, the issues with all the offerees including the petitioner and the 5th respondent.
15. The following minutes of their proceedings disclose the deliberation of the Committee:
"The Minister directed that since there are 4 competing claims, it would be necessary to prepare a comparative statement of the offers made by these parties. After discussions, it was decided that a Committee consisting of Principal Secretary to Government, I.T.Ys Department, Principal Secretary to Government, Energy Department, Chairman, K.E.B, Law Secretary and Director, Information and Publicity be constituted for the purpose of comparative evaluation of these offers."
This shows that because the petitioner and others came forward, the question of granting the largesse was first evaluated by a Committee.
16. Now, the electrical poles of the K.E.B. has found a use in the manner as indicated in the impugned order. It is a commodity in the exclusive ownership and control of respondents Nos. 1 and 4. When respondents Nos. 1 and 4 had in their possession and control a material which possesses certain commercial potentialities, the said respondents can certainly put it to the best marketable use. If so, can it be faulted if the said respondents scouted in the market to ascertain the best market that it can fetch or it puts certain conditions for permitting the user of these K.E.B. poles in order to exploit its maximum commercial potentialities? We have to approach this question keeping in mind that various persons solicited the use of the same for their commercial gains and utility. None of them sought its use, to aid the State to discharge any of its sovereign functions. Besides, respondents Nos. 1 and 4 did not solicit any of the offerees to use the K.E.B. poles so that the said respondents can make any material gain in that process. As long as respondents Nos. 1 and 4 did not invite offers for farming out the largesse for the user of the K.E.B. poles and thus augur a revenue, the said respondents are well within their rights to impose reasonable conditions for grant of the right to use the K.E.B. poles.
17. The tariff difference has been highlighted as one of the circumstances which indicates an act of arbitrariness or unfair favouritism. But, in the backdrop of various factors, it cannot be treated at all as a consideration to find showing of any undue consideration in favour of the beneficiary. The primary object of taking the K.E.B. poles by all prospective grantees was to extend the Cable TV. Network that they are operating. The Cable T.V. is an area with enormous and immense growing potentialities. The core intention is that it should function as medium to disseminate information to as extensive areas as possible. It is repeatedly discussed all over that, in the course of time these innovations would be precluding to revolution in communication system itself with its ability to gain access to data and information and ultimately knowledge. In that process it would have profound effect in every field including higher education. Days are not far off, of Information Superhighways, i.e., merger of television, telecommunication and the computers. Such merger is in the card of scientific advancement and any facility being made available using State aegis cannot be ignoring these developments. These potentialities should be kept in mind by respondents Nos. 1 to 4 before it parts with the right of the user of the K.E.B. poles. Respondents Nos. 1 and 4 should also have the farsightedness while bartering the right in favour of a commercial exploiter. As a discriminating and prudent owner, respondents 1 and 4 have to be alive to all these potentialities.
18. Now, as stated earlier, one of the complaints voiced by the petitioner is that the right for the use of K.E.B. poles has been conferred in favour of the 5th respondent for a tariff far lower than what is offered by the petitioner. This has necessarily to be so in view of the use to which it is being put to. The ultimate beneficiary of the user of the poles by either the petitioner or the 5th respondent is the common man. The service by using the poles for dissemination of Cable T.V. Channel is for commercial use by the person who is conferred the benefit. In quantifying and levying the service charges from the common man for the service of the Cable T.V., the tariff being paid to respondents Nos. 1 and 4 by the distributor is an important item. If higher tariff is levied by respondents 1 and 4, necessarily the tariff payable by the common man will proportionally be higher. If so, a lower fixation of tariff will be in the interest of the common man who should be the ultimate beneficiary of the dissemination of the information intended to be circulated. The State cannot always look at the revenue it would yield in certain areas. As for instance, when arrangements for supply of essential commodities are made it should keep the revenue earning as the last consideration for preferring tenders; likewise in several areas where the State undertakes the activity with the object of benefiting the common man, the object of revenue earning cannot be a relevant consideration at all. When it comes to imparting of information technology which precedes upgrading of educational standard of the common man, the over-heads must be kept as low as possible. The State is committed in this behalf by virtue of Directive Principles of State Policies. If this aspect is borne in mind, then the fact that the State has preferred the 5th respondent who has offered the lowest tariff cannot be considered as a circumstance casting any doubt on the choice. It would enable the 5th respondent lower its overheads as and when it comes into commercial market.
19. The gravamen of the attack by Mr. Jetley was directed also against the manner in which the 5th respondent was selected. As stated earlier, the right that is being transferred by respondents No. 1 and 4 has wide potentials. The Cable T.V., coupled with Telecommunication and Computers, can let open a flood-gate of developments. This is something which can be utilised in future or can reach electronically every house and office over a huge network made up of link to wide variety of information Superhighway. Therefore, when respondents Nos. 1 and 4 are dealing with this 'in thing' needed for establishing the Information Superhighway, necessarily they have to take stock of all aspects of the matters. Besides, this is the twilight of the twentieth century and we are stepping into the twentyfirst century; in such a situation, it is essential that these respondents keep in mind all the assessable potentialities while it barters away with the right. The respondents are also entitled to examine how best can they strike the bargain. With this in mind, we shall examine the manner adopted by these respondents when it chose to confer the privilege on the 5th respondent.
20. Respondents 1 and 4 owned the property being transferred. The petitioner initially approached them with a commercial proposition for transfer of the privilege. The process adopted by respondents Nos. 1 and 4 is not the usual dealing by inviting of the tenders and transferring the same. The process adopted was negotiation with prospective offeree and settlement of the largesse in favour of the best offeree. As stated earlier, respondents Nos. 1 and 4 were not attempting to secure maximum revenue; the attempt on their part was establishing a best means for dissemination of information etc., to the consumers at large at a minimal cost. It is seen that these respondents wanted to make best of the bargain. It is not as if that by means of the transfer all individuals or persons carrying on similar commercial activities are being eliminated from the field. It is admitted that the petitioners are even now carrying on similar avocation even without the use of the K.E.B. poles. Therefore, the grant of permission to use the K.E.B. poles will not in any way affect the business activities that is being carried on by the petitioners. Such facility will only facilitate their commercial venture. We should at this stage stress that the State need lend extend its helping arm to increase the commercial coffers of a private entrepreneur by enabling him to use the State's adages.
21. Hence, when we examine the process of awarding the right to use the electricity poles by anybody for their commercial activity, that cannot be dealt with in the same manner as one would farm out on exclusive privilege. The attempt of the petitioners is to gain a commercial advantage over all others engaged in similar activities, and perhaps at the cost of substantial disadvantage to the State whose property it is using. For this need they seek to use a property belonging to respondents Nos. 1 to 4. In such circumstances, respondents Nos. 1 and 4 need not act in the same manner as if it was farming out a largesse by tender. But at the same time it has to be stated that it is not as if respondents Nos. 1 and 4 can act arbitrarily and deal with its properties in any manner it likes. It has still a duty cast to deal fairly. Keeping this in mind we will examine whether the action of respondents Nos. 1 and 4 in choosing the 5th respondent to be the beneficiary for the use of the K.E.B. poles in any manner smacks with arbitrariness and shows undue favouritism.
22. Can it be argued that the selection of the 5th respondent is arbitrary? Was the selection of the said respondent a capricious act on the part of the Executive? Now, we have already seen that fetching of the revenue cannot be treated as a sole test to decide the question whether the action was arbitrary or capricious. In this case, Mr. Jaitley pointed out that the offer of two channels to respondents Nos. 1 and 4 by the 5th respondent was one of the considerations that prevailed with them in selecting the 5th respondent. But I do not think the petitioner can sustain on this plank to make the challenge. In fact it is seen from the file that the petitioner had also made an offer for similar facility to respondents in the event they were to be granted the privilege. We discern from the file that the committee constituted to go into the question of selection of the candidate, issued a notice to all offerees on 26-7-1995 to appear on 2-8-1995 before them with the details noticed in the letter. The letter stated as hereunder:
"...You are requested to appear before this committee on 2-8-1995 at 3-00 P.M. in the Committee Room No. 253, II Floor, Multi-storeyed Building, Karnataka Government Secretariat-2, Dr. Ambedkar Road, Bangalore - 560 001. You are also requested to bring the following information for the Committees consideration viz.,
i) Maximum tariff that you are prepared to pay for utilising the poles of the KEB.
ii) The maximum channels that can be offered to the State Government in return for the permission sanctioned for utilisation of the KEB poles, and
iii) The places in the State which would be covered under the proposed Cable TV. Network.
iv) Technical details of the project proposal."
This letter was admittedly addressed to the petitioner as well. Item No. (ii) referred to above related to making available the channel to the Government. This was in addition to the revenue payable for the use. This stand indicates that, one of the parameters contemplated by respondents Nos. 1 and 4 for selection is this facility as well. It is not as if that the petitioners were not apprised of the same. The petitioners did not participate at the meeting. The deliberations were hence postponed. But in the reply submitted by the petitioners to that notice there was no offer in respect to the query as indicated in Clause (ii) above. Instead they stated thus:
"...We will be working very dose with the local administration and all the local problems and information will be communicated to the public through this media which will have no time constraint & for which no cost will be charged.
As a part of our commitment to social & national cause we will be happy to play KEB's promotional material on this channel. We should shoot, edit and process KEB commercial information -free of cost. Promotional films could be on topics such as overloading of circuits, electrical energy conservation and KEB image building. This would help in a great way in morale boosting of KEB staff.
In addition to above, announcements in respect of power cut, load shedding, maintenance hours & payment schedules etc would also be screened on our local channel without any charge."
As regards Asia Industrial Technologies Pvt. Ltd., a rival offerer is concerned (who is not made a party to the proceedings), they offered as follows:
"3. We would provide you with one dedicated channel in return for the permission granted for using poles for laying cables."
With respect to the 5th respondent is concerned, they had already offered in their letter dated 1-3-1995 as follows:
"The infrastructure can also be utilised by the Government for its communication needs to households and public institutions. For example, the venture proposes to provide separate channels to the Government free of cost both at the state level and the local level for communicating matters of public importance, broadcasting educational programmes, law and order monitoring by the Police, remote operation of traffic systems, monitoring of security for Government buildings, remote operation of public utitlities like street lighting systems, fire hydrants, pumps etc., This channel can also be used for intra Government communication and for exchanging information with other public institutions."
The 5th respondent reiterated the offer as follows:
"(7) Our consortium will offer separate channels and studio facilities to the Government free of cost. In addition the consortium will provide for wide bandwidth on the fibre system for public use. The Companies plan includes the provision of a fully equipped studio for Governmental/Public use. Such a facility would only be useful if all of the public could be provided the programming developed in the studio. This facility would only be provided if the Company has an exclusive licence."
As all the intending offerees were not present, the meeting scheduled to 2-8-1995 was postponed. The reply was received from the petitioner on 2-9-1995. Hence the Committee in fairness sent a communication once again to the petitioner on 12-9-1995 requesting them to appear with their proposal on 23-9-1995. This communication stated as under:
"Sir, Subject : Request for permission to use the KEB poles for extending the Cable T.V. network in the State.
___________ With reference to your application on the above mentioned subject, I am directed to inform you that the. Government has constituted a Committee to examine your and other applications and make suitable recommendations to the Government. You are requested to appear before the said Committee on 23-9-1995 at 11.00 a.m. in the Committee Room. 253, II Floor, Multistoreyed Building, Karnataka Government Secretariat-2, II Floor, Bangalore - 560 001. You are also requested to bring the following information for the consideration of the Committee.
i) Maximum tariff that you are prepared to pay for utilising the poles of the KEB
ii) The maximum channels that can be offered to the State Government in return for the permission sanctioned for utilisation of the KEB poles,
iii) The places in the State which would be covered under the proposed Cable T.V. Network and
iv) Technical details of the project proposal.
Yours faithful, (S.S. SHIVANNA) Under Secretary to Government, Information, Tourism and Youth Services Department."
The Committee then contrasted the offers between the petitioners and the 5th respondent and other offerees. As regards the petitioners and the 5th respondent, it stated as follows:
Statement U.B. Group Zee T.V.
(Petitioner) (SITI Cable) Rent quoted for use of KEB poles Areas proposed to be covered Bangalore, Mangalore & Mysore Bangalore City & Suburbs, Mysore, Hubli & Belgaum Facilities to State Government One channel to State Government and one channel to KEB One dedicated channel to State Government, facility to relay messages.
Whether the company has studio in Bangalore Proposed Proposed (Camera unit functions) Whether any tie up with the Satelites United Satelite Network _____ Technology Optic fibre system Signed MOU with ATN Comoscope communications Cables The file further discloses that the committee evaluated at length the merits of the respective claims. It adverted to the following circumstances as well to hold that more than one company cannot be granted permission to use the poles:
"1. It would be physically very difficult to install the cables and equipment of more than one company on the electricity poles, considering the clearance required, the weight of the fixture bracket, etc.
2. The operations and maintenance of the cable would cause confusion as many agencies will be involved. This would also obviously damage the poles.
3. From the safety angle, this would be rather risky as the cables may overlap each other and may sometimes be even close to the power lines.
4. There may not be uniformity in the standards of installing cables and in the present day context of adherence to international norms of installation, it would not be prudent to grant permission to companies which may not have adequate resources to comply with such requirements of norms.
5. The multiplicity of networks would be a national waste; would result in cost cutting by the competing operators and as a consequence the consumers will have substandard levels of service.
6. The situation will be further aggravated when the cables will have to go underground since it will involve road cuttings at various levels which will be a hindrance to traffic and pedestrian movement.
7. Multiple cable network will mar the city skyline and aesthetics will be completely lost.
8. K.E.B. with the inadequate staff and resources will not be able to monitor the use of these poles by more than one agency."
After considering these aspects the Committee on 5.10.1995 recommended the selection of the 5th respondent for the following reasons:
"(a) The Group proposes to install a Optic Fibre Cable System for which it has already entered into a collaboration with United International Holdings.
(b) The proposal is to establish a "Information Super Highway" as against an ordinary Cable TV Network proposed by the other parties.
(c) The Group plans to invest more than Rs. 100 crores on the Network. (d) The Network will have two way communication possibility. (e) The Group offers separate channels and studio facility to the State Govt. and K.E.B. free of cost. (f) The Consortium will also have a fully equipped studio for both Government use as well as for use by the public.
(g) Though the UB Group has offered to pay Rs. 100/- per pole as against Rs. 250/- offered by the Zee TV, it is seen that UB's proposal is technologically more superior, that it has offered two free channels & studio facilities & that it can be asked to enhance the fee to a reasonable level of Rs. 200/-per pole."
It is seen that the Committee had earlier met thrice before finalising the selection. In fact it is seen that after the Committee met on 2.8.1995 it sent notice to the petitioner, 5th respondent and others on 23.9.1995 in the following manner:
"NO:ITY 222 PIF 94 Karnataka Government
Secretariat, M.S.Building,
Bangalore, Dated 23.9.1995
FROM:
The Principal Secretary to
Government, Information,
Tourism and Youth Services
Department, BANGALORE-1
TO: 1) Zee Telefilms Ltd.,
B-10 Lawrence Road,
Industrial Area,
NEW-DELHI - 110035
2) Shri Ashok P. Hinduja,
President, Hinduja Group,
Dr. Anne Besant Road,
Worli, BOMBAY-400 018
3) Sri V. Subramanyam,
Executive Assistant to the
Group Chairman,
U.B. House,
No. 1, Vittal Malya Road,
BANGALORE - 560 001
Sir,
Sub : Request for permission to use the K.E.B.
Poles for extending the Cable TV network
in the State.
In continuation of the discussion the Committee had on the
subject, I am directed to request you to intimate the maximum
tariff that your cable T.V. Network is prepared to pay in case
Government decides to permit the use of KEB Poles by more
than one network. Information on this issue should reach the
Government on or before 27th of this month."
This indicates that the Committee has been keeping all issues open and had been making earnest attempt to ascertain the best interest of respondents Nos. 1 and 4. The recommendation dated 5.10.1995 was made after the response to the above letter was also received.
23. From the narration of the formalities undertaken and stated above, it cannot be alleged that there has not been transparency in the matter of selection of 5th respondent for conferring the largesse. The petitioner had also been given equal opportunity to participate in the negotiation. All details of the requirements have been made known to them as well.
24. When the notice dated 26.7.1995 was issued to the petitioner as well to participate at the meeting being held on 2.8.1995 the said notice called upon the offerees to bring with them the details mentioned in the notice. Though the notice of the said meeting had been served on the petitioners, they were absent on 2.8.1995. Hence, the Committee, in fairness, had adjourned the meeting to 23.9.1995. The meeting was held on that day and all proposals were in fact considered with notice to the rival claimants. In such circumstances, the petitioners cannot complain that there has been any secrecy in the dealings as alleged.
25. The contention advanced is that the Committee was in fact persuaded to accept the offer of the 5th respondent, because they had offered to establish "Information Superhighway". According to the Learned Counsel, this was not something with respect to which the parties were negotiating and this requirement was not made known to the petitioner. He submits that had this been made known to the petitioner, then certainly they would have also offered this facility. I do not think that this argument merits any serious consideration. In the first place, the 1st respondent did not invite any tender for bartering the right to use the K.E.B. poles. Several persons sought permission for the use of the same, as stated, to exploit for their own commercial use. Each offeree offered their terms they felt that that they can offer for acquiring the said right. One of the offers made by the 5th respondent was that they would establish an Information Superhighway as well. The 1st respondent found that this was an added advantage if the 5th respondent was choosen to be awarded the largesse. It is not as if this offer of the 5th respondent was not known to the petitioner. At the meeting held on 23.9.1995, the offers of all offerees were examined with notice to each other. It was then clearly open to the petitioner to have offered better facilities to the 1st respondent if the largesse was to be granted to them. It is not necessary for the intending vendor to disclose to all prospective vendees the price offered by each of the vendees and stimulate better offers. He has the discretion to choose the best and part with the properties. Hence, the argument that the 5th respondent was preferred because he offered Information Superhighway at a secret parley etc., is not sustainable.
26. Mr. Jaitley, Learned Counsel urged that by the selection of the 5th respondent, an exclusive privilege has been conferred on the said respondent. In the first place, since the petitioner was also vying for an exclusive privilege like the 5th respondent, it is not open for them now to contend that conferment of an exclusive privilege is illegal. Besides, the Committee which has gone into this aspect, has reported as to why more than one agency cannot be granted this privilege. These reasonings cannot be attacked as mala fide or irrelevant, because the expert body had gone into these aspects and opined in that behalf. As long as the Court does not have superior technical power to examine the correctness or otherwise of the said conclusion and it is not demonstrated that the same is vitiated in any manner due to irrelevant considerations and oblique motives, the opinion expressed by the expert body has to be accepted.
27. While attacking the impugned order, the Learned Counsel further submitted that irrelevant considerations have prevailed with the Expert Body while making the selection in preferring the 5th respondent. For various reasons set out above, I do not think the contention is sustainable. The Committee has kept in mind the task entrusted to it and adopting the "trial and error" method, recommended the selection of the 5th respondent. One further submission made in this behalf is that the offer of making available two channels free to respondents Nos. 1 and 4 had prevailed and influenced the Committee in choosing the 5th respondent. The contention is that a Television Channel is covered by the Telegraph Act and comes exclusively within the purview of the Central Government and without securing a licence under Section 4 of the Telegraph Act, it is not possible to operate a channel. From the reading of Section 4, it is clear that there is no ban totally in any one operating a Television Channel; all that is required is acquiring of a licence under the Telegraph Act. A licence would enable the State Government to operate the channel. It is not averred or asserted that the Central Government will not grant the licence as contemplated under Section 4 of the Telegraph Act. As long as it is so and securing licence is plausible, the objection is not very serious enough to affect the decision taken by the Committee and respondents Nos. 1 and 4 relying on that circumstance as well. Besides, the petitioner had also an equal opportunity to offer such facility and become eligible. The petitioner having omitted to avail that facility, cannot now complain on that count.
28. The next submission of the Learned Counsel was that when the decision making process suffers from fairness, the decision so taken would be vitiated and would suffer from arbitrariness and favouritism. In this behalf, the Learned Counsel cited several decisions including R.C. SHETTY v. INTERNATIONAL AIRPORT AUTHORITY, HARMINDER SINGH v. UNION OF INDIA, , STAR ENTERPRISES v. CITY AND INDUSTRIAL DEV. CORPORATION OF MAHARASHTRA LTD, . STERLING COMPUTERS LTD. v. M & N PUBLICATIONS LTD. AND ORS., UNION OF INDIA v. HINDUSTAN DEVELOPMENT CORPORATION I do not think that the petitioner can utilise the principles laid down in any of those decisions to sustain the allegation of arbitrariness or favouritism In the first place this is not a case of disposal of a property by inviting a tender. This is a case, where several persons including the petitioner wanted the commodity held by respondents Nos. 1 and 4 to exploit for their commercial advantage. In that process, keeping in mind the commercial mileage the offerees, would gain these respondents intended to make appropriate gain which would also help them to safeguard their own interests. Besides, they were not dealing with the offerees, solely to make any commercial gains. Secondly, respondents Nos. 1 and 4 had constituted an expert panel having sufficient technical know-how to negotiate and ascertain the best choice of the offeree. The requirements of the offeror had been disclosed to ail offerees and open discussions were held with all offerees. There were no secret parleys pr negotiations with any of the offerees. As demonstrated supra, the Committee has eschewed all irrelevant considerations and has taken into account only relevant consideration while recommending the offer best suited for selection As held by various decisions, an administrative act is amenable to judicial review only if the following circumstance can be demonstrated, namely:
(1) Illegality, where the decision-making authority has been guilty of an error of law, e.g., by purporting to exercise a power it does not possess; (2) irrationality, where the decision making authority has acted so unreasonably that no reasonable authority would have made the decision; (3) procedural impropriety, where the decision-making authority has failed in its duty to act fairly.
The impugned action does not demonstrate the existence of any of these grounds and as such is not amenable for, judicial review.
29. The next contention urged was that the grant of the privilege to use the electricity poles interfere with the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. I do not think that respondents Nos. 1 and 4 by granting the use of the electricity poles to the 5th respondent has in any way abridged the fundamental right, guaranteed to the petitioner under Article 19(1)(a) of the Constitution. A larger contention has been urged by Mr. Advocate General at this stage as to whether the petitioner who is not a natural person can urge infringement of fundamental right under Article 19(1)(a) to (f). But, in view of the later decisions of the Supreme Court, I do not think that the objections need serious examination. I will proceed as if the said complaint is sustainable. In this behalf, the Learned Counsel for the petitioner mainly laid stress on the decision of the Supreme Court in SECRETARY, MINISTRY OF INFORMATION & BROADCASTING v. CRICKET ASSN. OF BENGAL, That was a case where the Court examined in detail the content of the right guaranteed under Article 19(1)(a) of the Constitution of India. There, after examining various decision, His Lordship Justice Sawant (with whom Justice Mohan concurred) summarised the law in regard to freedom of speech and expression as follows:
"43. We may now summarise the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2). The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self-fulfilment. It enables people to contribute to debates on social and moral issues. It is the best way to find a truest mode of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, include right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. The freedom includes the freedom to communicate or circulate one's opinion without interference to as large a population in the country, as well as abroad, as is possible to reach.
44. This fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2) of the Constitution.
45. The burden is on the authority to justify the restrictions. Public order is not the same thing as public safety and hence no restrictions can be placed on the right to freedom of speech and expression on the ground that public safety is endangered. Unlike in the American Constitution, limitations on fundamental rights are specifically spelt out under Article 19(2) of our Constitution. Hence no restrictions can be placed on the right to freedom of speech and expression on grounds other than those specified under Article 19(2)."
It next considered the question of operating of monopoly in the field of broadcasting/telecasting. In the course of discussion, their Lordship stated as hereunder:
"There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies. What is further, the electronic media is the most powerful media both because of its audio-visual impact and its widest reach covering the section of the society where the print media does not reach. The right to use the airwaves and the content of the programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters..."
After bestowing their attention to all matters and reviewing all aspects of the question, their Lordships held as follows:
"122. We, therefore, hold as follows:
(i) The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since the electronic media involves the use of the airwaves, this factor creates an inbuilt restriction on its use as in the case of any other public property.
(ii) The right to impart and receive information is a species of the right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property, viz., the airwaves, involved in the exercise of the right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved in the use of the electronic media is in addition to the restrictions imposed on the right to freedom of speech and expression under Article 19(2) of the Constitution."
In the separate concurring judgment, His Lordship Justice Jeevan Reddy stated thus regarding the content of the right under Article 19(1)(a):
"(b) Airwaves constitute public property and much be utilised for advancing public good. No individual has a right to utilise them at his choice and pleasure and for purposes of his choice including profit. The right of free speech guaranteed by Article 19(1)(a) does not include the right to use airwaves, which are public property, the airwaves can be used by a citizen for the purpose of broadcasting only when allowed to do so by a statute and in accordance with such statute. Airwaves being public property, it is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens which is served by ensuring plurality and diversity of views, opinions and ideas. This is imperative in every democracy where freedom of speech is assured. The free speech right guaranteed to every citizen of this country does not encompass the right to use these airwaves at his choosing. Conceding such a right would be detrimental to the free speech rights of the body of citizens inasmuch as only the privileged few powerful economic, commercial and political interests - would come to dominate the media. By manipulating the news, views and information, by indulging in misinformation and disinformation, to suit their commercial or other interests, they would be harming - and not serving - the principle of plurality and diversity of views, news, ideas and opinions. This has been the experience of Italy where a limited right, i.e., at the local level but not at the national level was recognised. It is also not possible to imply or infer a right from the guarantee of free speech which only a few can enjoy.
(c) Broadcasting media is inherently different from press or other means, of communication/information. The analogy of press is misleading and inappropriate. This is also the view expressed by several constitutional courts including that of the United States of America."
Keeping these principles in mind, we will now examine the case on hand.
30. To begin with, can it be said in this case that there has been a violation of the guarantee of freedom of speech and expression guaranteed to the petitioners under Article 19(1)(a) of the Constitution of India by respondents Nos. 1 to 4 by choosing the 5th respondent to use the K.E.B. Poles? I think not. It ought to be remembered that the K.E.B. pole is not the sole means of laying cables for the use of Cable Television. It is admitted that even without the use of K.E.B. poles, the petitioners are in the trade of Cable T.V. As on today, the petitioners are not using the K.E.B. poles for their Cable Television. Neither the 5th respondent is using the K.E.B. poles. Admittedly, the petitioners are not complaining that their freedom of speech and expression saved under Article 19(1)(a) of the Constitution is in any manner restricted or interfered with by respondents Nos. 1 and 4. If the 5th respondent is allowed to use the K.E.B. poles, the same state of affairs will continue and will not be further deteriorated. One fails to understand how then can the petitioners complain that the issuance of the impugned order abridges their right enjoyed by them under Article 19(1)(a) of the Constitution. The impugned order does not declare that on and after conferment of the right on the 5th respondent, no other Cable Operators other than the 5th respondent shall operate in Karnataka and engage himself in the Cable T.V. business. The petitioners can also co-exist with the 5th respondent. The effect of granting the right to use the K.E.B. poles does not in, any way take away or abridge the freedom of speech and expression guaranteed under the Constitution of India that the petitioners are enjoying.
31. Further, while considering the contention, we have to keep in mind that the State is not in any way curtailing or interfering with the freedom of speech and expression enjoyed by the petitioners by the impugned action. It has only permitted the 5th respondent to use the K.E.B. poles for the purpose of laying cable for the Cable T.V. If the petitioner had been the offeree to whom the privilege had been granted, he would have also exercised similar right. The petitioner then would have paid higher rental to respondents Nos. 1 to 4 to enjoy the privilege whereby the rental that the common man consumer would have had to pay would have been higher. In other words, by attempting to protect the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution, what is sought to be achieved by the petitioners is to ensure and safeguard an increased commercial profit of the petitioners, at the cost of increased financial commitment on the beneficiaries. This is not permissible under the protection claimed under Article 19(1)(a). We may in this behalf advert to the following passage in :
"...While, the freedom guaranteed by Article 19(1)(a) does include the right to receive and impart information, no one can claim the fundamental right to do so by using or employing public property. Only where the statute permits him to use the public property, then only - and subject to such conditions and restrictions as the law may impose - he can use the public property, viz., airwaves. In other words, Article 19(1)(a) does not enable to citizen to impart his information, views and opinions by using the airwaves. He can do so without using the airwaves. It need not be emphasised that while broadcasting cannot be effected without using airwaves, receiving the broadcast does not involve any such use. Airwaves, being public property must be utilised to advance public good.
Public good lies in ensuring plurality of opinions, views and ideas and that would scarcely be served by private broadcasters, who would be and who are bound to be actuated by profit motive. There is a far greater likelihood of these private broadcasters indulging in misinformation, disinformation and manipulation of news and views than the government-controlled media, which is at least subject to public and parliamentary scrutiny..."
It is dear thus that the challenge on the ground of violation of the fundamental right guaranteed under Article 19(1)(a) of the Constitution is actuated by the profit motive of the petitioner rather than a desire to advance public good.
32. There is also yet another contention urged in that a monopoly is being created in favour of the 5th respondent also by virtue of the impugned order and such a monopoly cannot be created in favour of a citizen. As demonstrated earlier, this contention is also misplaced. By means of the order under challenge, the other Cable T.V. operators are in no way affected. For this reason, the contention that by the impugned grant, a monopoly is created in favour of the 5th respondent is totally misplaced. A monopoly is said to exist only if an exclusive privilege is conferred on a person to do something and which all others are restrained from doing. It is usually conferred to prevent competition. Again a monopoly is said to exist when one person alone buys up the whole of one kind of commodity, fixing a price at his own pleasure. By the grant, if that grantee controls the trade or controls or dominates the exclusive privilege to carry on the trade for his private gains at the price dictated by him, then it can be said that a monopoly has been created in his favour. !n fact, it is not the mere grant of permission to use the K.E.B, poles that really hurts the competitor; it is the end product achieved by him by that grant that matters. One can appreciate the grievance if by the grant of the user of K.E.B. poles, the grantee is able to exclude all others from Cable TV operation. Concededly, this is not the position. It is not a case that Cable TV Network can be operated in Karnataka only by means of K.E.B. poles. That trade can be carried on and is admittedly being carried on even without the use of the K.E.B. poles. A business will not be monopolised by a person it that person is permitted to use exclusively one of the methods or vehicles to carry on the said business. It would have been a different story if that method or vehicle is the sole means to carry on the business. The stress while examining such contention should be, whether the result of such exclusive conferment of right banishes others altogether from the trade itself. As long as such a result does not emanate, it cannot be said that a monopoly is created in favour of the grantee. The argument on the basis of monopoly is also a farcry devoid of any merits.
33. The petitioner has also imputed that the action of the respondents is vitiated and mala fide, but the pleading in this behalf in this case is hardly sufficient to establish mala fide. The allegation of mala fide Is contained at para-19, 27, 34 and 35 of the Writ Petition. They read as hereunder:
"The petitioner was requested to intimate the maximum rate that its Cable TV network is prepared to pay in case the Government decides to permit the use of KEB poles by more than one network, by 27th September, 1995. The mala fides on the part of the respondents is absolutely dear by the fact that by the above mentioned letter dated 23.9.1995 the petitioners were required to give their offer by 27.9,95. This letter was received by the petitioners on 5.10.95 and the envelope shows that the letter was put in the course of transmission only on 28.9.95 i.e., after the last date for receiving the offer. Obviously, no reply could have been sent to that letter...."
xxx xxx xxx "That the petitioners have now got a copy of the order being Government Order No. ITY222FlF/94, Bangalore dated 6.12.1995 whereby the respondent No. 2, in a most arbitrary and mala fide manner, has decided to grant exclusive permission to the respondent No. 5 for exclusive user of the electricity poles for its cable network, on absolutely extraneous and irrelevant considerations. A copy of the order dated 6.12.1995 is annexed here to and marked as Annexure-H. The petitioner respectfully submit that it is not within their knowledge whether the respondent No. 4 has entered into or executed any agreement with respondent No. 5 as per the above mentioned order dated 6.12.1995. The arbitrariness and mala fide on the part of the respondents is clear from the fact that the above mentioned order records that M/s. U.B. Group shall provide two satellite channels, one to the State Government and the other to the Electricity Board free of cost and make all necessary arrangements for use of those channels by the Governments. It is submitted that no person can offer any satellite channel without the prior permission of the Central Government and in any case M/s. U.B. Group has no facility for providing the satellite channels as recorded in the above mentioned order of the Government. The respondent No. 5, in so far as establishing cable network system is concerned, is not having the ability, reputation or standing for doing so. It is impossible for such a person to even make an offer of providing two satellite channels within three months of the award of the contract. The recording of the minutes of the meeting and the -stipulations in the letter of award dated 6.12.1995 is nothing but an attempt on the part of the respondents to design, engineer and fabricate the documents in such a manner so as to create a camouflage for attempting to establish a bona fide exercise of administrative and executive power."
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"...The belief of the petitioner that the respondents 1 to 4 acted with bias in favour of respondent No. 5 and they have acted in an arbitrary, mala fide and unlawful manner is strengthened by the fact that the respondent Nos. 1 to 4 have created a monopoly in favour of respondent No. 5 which is clearly violative of the pronouncements of the Hon'ble Supreme Court of India. The respondent Nos. 1 to 4 pursuant to their unlawful actions have killed the competition by creating a monopoly in favour of respondent No. 5"
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"That the entire process of administrative decision in this matter on the part of respondent Nos. 1 to 4 smacks of mala fide, arbitrariness and favoritism in favour of respondent No. 5...."
These allegations are totally insufficient and too vague to establish a plea of mala fide. As held by the Supreme Court in , E.P. Royappa v. State of Tamil Nadu , allegation of mala fide is easily made than prove. Mere suspicion cannot take the place of proof. In this case the authorities have acted bona fide in negotiating to select the best offer. There is nothing to show that they have been actuated by improper motives, ulterior purposes or that they have improperly exercised their discretion to achieve any ulterior purpose. In the absence of proof of personal bias or oblique motives or allegations and materials to show that the action of the authority is contrary to the object, requirements and condition of exercise of the power vested in them, the charge on the ground of mala fide should fail.
The above averment in the Writ Petition is also sought to be made use to urge that the action of respondents Nos. 1 to 4 is fraud on their power. To sustain this plea, the Learned Counsel has cited , Express Newspaper Pvt. Ltd. v. Union of India and Ors. to explain as to what is meant by fraud on power. In particular, para-118 is relied on. The relevant part reads as hereunder:
"118. Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab, . A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an alien purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown, 1904 AC 515, "that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred.'."
Again, there is no pleading in the first place nor factual materials to sustain or attract the dictum in the above said decision. In the instant case, the authority has not misused its power in breach of any law has not taken into account any extraneous matters nor has it ignored any relevant consideration. The power has also not been exercised with any improper motives. There are no allegations much less proof to sustain these contentions. The plea of fraud on power founded on the averments in the Writ Petition referred to above has also to be rejected.
34. We have seen that the decision taken to confer the largesse on the 5th respondent is neither arbitrary nor capricious; it does not amount to abuse of discretion and is substantiatively intra vires. It is neither procedurally ultra vires nor is it jurisdictiorially ultra vires. The decision of the respondents has then only to be upheld.
35. In the result, the Writ Petition fails. It is dismissed. No costs.