Madras High Court
Television Producers Chambers Of ... vs Union Of India And Others on 27 January, 1993
Equivalent citations: AIR1993MAD300, AIR 1993 MADRAS 300
ORDER
1. The prayer in W.P. No. 1251 of 1993 is as follows :
"..... to issue a writ of certiorified mandamus calling for the records pertaining to the scheme of licensing the time slot for Metro (II) Channel as announced in the press dated 17-1-1993 in 'The Hindu' and the application form along with these guidelines and quash the same and forbear the respondents herein from proceeding with the above scheme ....."
2. The prayer in W.P. No. 1317 of 1993 is as follows :
".... to issue a writ of certiorarified mandamus calling for the records relating to the second respondent's scheme for telecast of programme provided by outside private parties on Doordarshan Metro Channel as notified in 'The Hindu' dated 17th January, 1993 and quash the scheme and consequently direct the respondents to frame a fresh scheme in accordance with law ...."
3. The petitioner in W.P. No. 1251 of 1993 claims that he is the General Secretary of the Association whose members are producers of various Television programmes and telecasting their programmes through Doordarshan Kendras. It is alleged in the affidavit filed in support of the writ petition that after the advent of Doordarshan in India, no Statute has come into force governing the functioning of the entire Electronic media including AH India Radio. A reference to Central Act, 25 of 1990 viz. Prasar Bharati (Broadcasting Corporation of India) Act, 1950 is made in the affidavit which received the assent of President on 12-9-1990 and it is alleged in the affidavit that the said Act has not yet been notified by the Government. It is also alleged in the affidavit than on 17-1-1993, an advertisement appeared in 'The Hindu' inviting applications from interested parties for allotment of time slot of half-an hour each between 8.00 p.m. and 9.00 p.m. on the Metro (II) Channel of Doordarshan at Delhi, Bombay, Calcutta and Madras with effect from 26-1-1993. It is also stated in the affidavit that the said notification mentioned that the forms would be available till 4.00 p.m. on 18-1-1993 in all the Kendras, and that duly filled forms in all respects should be submitted in the concerned Kendras on 21st and 22nd January, 1993 between 11.00 a.m. and 4.00 p.m. It seems the said notification further stated that computerised printed receipt will be given by the concerned Kendras indicating the date and time of submission of each application. It is also alleged in the affidavit that the members of the association are aggrieved by the notification which appeared in "The Hindu" on 17-1-1993 as the same is arbitrary and without any authority of law. The petitioner also alleges in the affidavit that the Scheme announced by the respondents 1 to 3 is highly arbitrary and violative of Article 14 of the Constitution and that the respondents have no legal authority to announce the scheme as the same has not been permitted by any legislation and as such it is ultra vires of the provisions of the Constitution. It is also alleged in the affidavit that the proposed scheme is amounting to the grant of a largesse by an executive action to few selected individuals cannot be sustained and the same is totally arbitrary and violative of Article 14 of the Constitution of India. It is also alleged in the affidavit that since the Central Act 25 of 1990 has not yet been notified, there is no power for the respondents to come forward with the present Scheme. It is also alleged in the affidavit that as per notification, the basis of selection is 'First Come First Serve' basis, and that the programme in Doordarshan being a creative work cannot be assigned on a mere 'first come first service' basis. A reference to earlier writ petition filed before this Court in W.P. No. 13808 of 1991 is made in the affidavit stating that the guidelines framed by respondents 1 and 2 in pursuance of the directions of this Court in W.P. No. 13808 of 1991, do not contain such a Scheme. It is also stated in the affidavit that in the absence of any authority, the announcement of such scheme is arbitrary. It is also alleged in the affidavit that the Scheme is opened for only days viz. 16th and 18th January, 1993, that the applications should be collected by the interested persons individually only at four Metro Kendras at Delhi, Bombay, Calcutta and Madras and they should be submitted on 21st and 22nd of January, 1993 between 11.00 a.m. and 4.00 p.m. Referring to this, it is alleged in the affidavit that it is highly impossible for any interested persons all over the country to reach all the four Kendras in just two days and that the public notice is given only on 17-1-1993. It is also stated that since no interested person might be having a programme which is already produced and in the absence of such produced programme being ready the commencement of the programme on 26-1-1993 under this Scheme is an impossibility. It is also pointed out in the affidavit that such an impossibility is ought to be implemented, it clearly points out that few vested interest are already ready with some programmes and only such persons will be given the time slot which itself is an arbitrary action. It is also stated that the object of the Scheme cannot be making the Metro II Channels again a Film based one in the absence of the prepared programmes because of the inadequacy of time to produce the serial in a matter of one or two days. It is further alleged that by keeping the distribution of applications only for two days viz. 16th and 18th of January, 1993, the respondents herein have sealed the opportunity of many people from applying for the same as they will not be able to reach the destination in the shortest possible time. It is also stated in the affidavit that there is no criteria for grant of licence under the Scheme and that the eligibility criteria does not give any emphasis for the creative work or to their experience in a particular line and is open to every individual who have no prior experience in the particular field. It is also stated that if without any quality control, if the programme is allowed to be telecast by the licensees, it would only result in the destruction of our cultural values and religious understanding. It is also stated that the Scheme does not have any system of censor about the programmes likely to be telecast and as such the proposed Scheme is arbitrary in view of the judgment of the Supreme Court in Satwant Singh v. A.P.O., New Delhi, , and also in Meenakshi Mills v. Visuanatha Sastri, . It is also stated that under the present Scheme, there is no method of screening prior to the telecast of the programmes and that the right to stop the programme or give directions to change the contents of programme, if exercised, would resuit in multifarious litigations including seeking damages against Doordarshan. With these allegations, the petitioner is before this Court with the aforesaid prayer.
4. Writ Petition No. 1317 of 1993 is filed by the members of the Television Producers' Association of South India (TEPASI) by Secretary, for the same relief as has been asked in Writ Petition No. 1251 of 1993. The petitioner alleged in the affidavit that the Scheme of the second respondent is totally arbitrary and violative of Article 14 of the Constitution of India, as it is opposed to the purpose for which Doordarshan was created. It is further stated that Doordarshan is a "STATE" within the meaning of Article 12 of the Constitution, and that it is duty bound to follow rational policies in awarding contracts and distributing largesse. It is also stated that the Scheme does not have any rational behind it and that its purpose shows to help certain vested interests. It is also stated that experience in producing or directing programmes is not a relevant factor for participation in the Scheme, that there is no selection involved in the grant of licence and as such the grant of licence based on first come first served basis is totally arbitrary. It is also alleged that the speed with which the Scheme is being rushed through shows that the respondents have already picked the persons to whom it will be granted. It is also stated that the second respondent could have advertised the Scheme earlier and that the Scheme lacks bona fides. It is also stated that to allow television programmes from outside the State or abroad without any emphasis on quality, would not only deprive the local producers of their livelihood but would also lead to destruction of moral and social values. It is also stated that the proposed Scheme is opposed to public interest and as such it is illegal. It is further alleged that every citizen in the country has a right to see good programmes on Doordarshan, that the proposed Scheme lacks in following guidelines and that is only on commercial interest. It is also alleged that such a scheme is totally opposed to public interest and is violative of fundamental right of every citizen to view good programmes. It is also stated that the apex Court of the land has held that every citizen has a reasonably expectation from the State and the public sector undertakings and that no action can be unreasonable and unjust. With these allegations the petitioner is before this Court with the prayer stated supra.
5. I have heard Mr. K. E. Baskaran, for M/s. Naidu and Bhat learned Counsel appearing for the petitioner in W.P. 1251 of 1993 and of Mr. K. Chandru, learned Counsel, appearing for the petitioner in W.P. 1317 of 1993 in extenso. Learned Counsel Mr. K. E. Baskaran contends that the proposed Scheme is arbitrary and violative of Article 14 of the Constitution of India, that by paying licence fee of Rs. 80,000/- per half-an hour time slot, no person will be able to give any good programme and that in the result, the public at large will not have good programmes at all. It is also argued by the learned Counsel for the petitioner in W.P. No. 1251 of 1993, that applications in all Metro Kendras are issued simultaneously and as such the policy 'first come first served' has no meaning at all. The learned Counsel also argued that when a person gets an application at Madras at 11.00 a.m. and if another person may make another application at Calcutta at the same time i.e. 11.00 a.m. and as such it is not possible to decide to whom the licence has to be given. The learned Counsel argued that the proposed Scheme is passed without any authority of law. It is also argued by the learned Counsel that the proposed Scheme does not satisfy the test of reasonableness, which is a must, when the Government proposes to frame a Scheme for granting licence in this matter.
6. Mr. K. Chandru, the learned Counsel appearing for the petitioner in W.P. No. 1317 of 1993 contends that it is true that nobody can have arty objection for privatisation, but the scheme is projected all of a sudden and that from the point of view of the public, it is not a healthy practice. According to the learned Counsel the viewers a section of public, will not have any good programme if creativity is completely spoiled by granting of such licences under the guidelines framed and impugned in this writ petition. According to the learned Counsel, allotment alone is made under the Scheme and the Association represents a section of the public and also the producers who have legitimate expectation that the doordarshan will publish a Scheme without unreasonableness. Tn other words, according to the learned Counsel, every citizen, from a Government, should not get an unjust treatment and as such the petitioner association expects reasonable procedure to be proposed Scheme which is notified by the Doordarshan is highly arbitrary and violative of Article 14 of the Constitution.
7. Having given my careful consideration to the arguments of the learned Counsel for both petitioners and having gone through the materials placed before this Court. I do not see any merit at all in these writ petitions. Director General, Doordarshan has notified in the daily "The Hindu' dated 17-1-1993 about the new scheme, calling for applications from interested persons for allotment of time slots of half-an hour each between 8.00p.m. and 9.00p.m. on the Metro (II) Channel of Doordarshan at Delhi, Bombay, Madras and Calcutta with effect from 26-1-1993. It seems Doordarshan has decided to set aside one hour time in the Second Channel of ail the four Metros of Doordarshan for allotment of time slots to private parties to offer their programmes of entertainment nature and it may be of own production of sourced programme for telecast. The time set apart for the said Scheme is 8.00 to 9.00 p.m. daily in two half-an hour slots. The Scheme would be operative from 26-1-1993 to 31-7-1993 commencing from 26-1-1993, a person who is interested, has to obtain a licence under the said Scheme for which guidelines are framed and certain terms and conditions are also provided along with the application form. A licence fee of Rs. 80,000/ - per half-an hqur time slot per Metro Channel would be charged and applications can only be for either a single Metro or network on all the four Metros. If the applicant applies for network of all the four Metros, the total licence fee would be Rs. 80,000/- x 4 = Rs. 3,20,000/- would be charged. The selected person is expected to enter into a contract with Doordarshan before the commencement of the telecast. With regard to allotment of time slots, interested parties can apply for a half-an hour time slot per week for a minimum duration of 13 weeks or a maximum duration of 26 weeks and no time slots will be allotted for periods ranging between 13 and 26 weeks. The licence fee for a half-an hour time slot will be Rs. 80,000/- and as such the licence fee for the 13 half-an hour slots would be 10,40,000/- for a single Metro or Rs. 41,60,000/- for the Metro network. It seems 25% of the said amount has to be paid by way of bank draft at the time of agreement and for the remaining 75% a bank guarantee would be furnished by the party. As and when the initial amount of 25% gets exhausted, the parties are expected to pay another instalment of 25% payment and correspondingly the amount of bank guarantee will also be reduced. As such, the entire bank guarantee will be revolved till the allotted time slots have been telecast by Doordarshan. It is also seen that no party will be allotted more than two half-an hour time slots in a week, and it is open to the party to choose either to combine two half-an hour time slots into one hour on the same day of the week or can be split into two separate half-an hour time slots for different days of the same week. It is also seen that preference would be given to parties applying for twenty-six time slots in comparison to those who apply for thirteen time slots. It seems that time slots will be allotted on first come first served basis and the basis of determination would be determined by the computer printed receipt, indicating time and date of submission of the applications. With regard to the nature of the programme, the guidelines say that the programme would be either own productions or sourced pro-
grammes from within the country or abroad and they should be primarily programmes of entertainment nature and should conform to one broad theme in the programme for the entire duration of the time slots applied for. All copy-rights and other legal matters pertaining to the programmes are the responsibility of the applicant and it is the responsibility of the applicant to conform to and abide by Doordarshan guidelines, advertisement Code and provisions of the Indian Cinematographic Act. A declaration also has to be made in a stamped paper. With the abovesaid guidelines, applications are furnished to persons at all the four Kendras, viz. at Delhi, Bombay, Madras and Calcutta till 18-1-1993 4.00p.m. and duly filed applications in all respects have to be submitted to Doordarshan at concerned Kendras on 21-1-1993 and 22-1-1993 between 11.00a.m. and 4.00p.m. It is also made clear that all licences are expected to generate revenue through sponsorship and advertisement on their own. Eligibility criteria for licensees is also shown in the terms and conditions to be observed by outside private telecast of programmes on Doordarshan is also given in the notification. It is also stated, with regard to quality rating, that a power of review is kept with the Government. Clause 4 of the terms and conditions to be observed by outside private parties and clause 6 provides for suspension/revocation of licence.
8. A reading of the terms and conditions to be observed by outside private parties for telecast of programmes on Doordarshan and the detailed outlines of the Scheme, which have been produced before this Court, clearly shows that this is a Scheme of giving a licence to telecast for a particular time slot to private parties. The Doordarshan gets licensing fee of Rs. 80,000/ - per half-an hour and all licences are expected to generate revenue through sponsorship and advertisement on their own. Virtually, it is a scheme of licensing one hour per day between 8.00 and 9.00 p.m. to private parties to telecast their programmes of entertainment nature, after receiving a licence fee of Rs. 80,000/ - per half-an hour. In my view, the Scheme itself cannot be said to be arbitrary or illegal, as the Exchequer gets a sum of Rs. 80,000/- per half-an hour. That apart, as seen from the records, the scheme is only for a short period, commencing from 26-1-1993 to 31-7-1993. In such circumstances, I do not see any reason to hold that the petitioners in both writ petitions, are affected or aggrieved in any way. If the members of the Associations are interested in taking out a time slot, it is open to them to pay the necessary licence fee io the Doordarshan and take it. If they are not interested, the matter ends. I do not think that any producer or any member of the petitioner Association has got a fundamental right to submit a serial to the Doordarshan or to make money out of any serial which they submit to Doordarshan, thinking that this is a source of livelihood for them. The Doordarshan is not meant to lieu for charity to the members of the petitioners Associations. If Government of India wants to augment its resources by allotting one hour time in the Second Channel of all the four Metros, as mentioned above, after receiving licence fee of Rs. 80,000/- per half-an hour, I do not think the petitioner Associations can attack the said decision, i.e. the proposed scheme in this case. The Scheme may be a new method. But that does not mean that it can be said that it has no legal basis. The All India Radio and Doordarshan are run only on guidelines and no separate enactment governs them. Even the present programmes which are given in Doordarshan by the petitioners are done only under guidelines and instructions. If the argument of the petitioner Association in W.P. No. 1251 of 1993 is to be accepted, in my view, it means that if the petitioner Association has produced any material for the Doordarshan and if the Doordarshan has used it, then it has to be said that Doordarshan is acting without authority of law. So the argument of the learned Counsel for the petitioner that since the Act has not come into force, the Government of India has no power to frame the real scheme has no meaning at all. Whether to notify the Act, as not is entirely the lookout of the Government and it is not for this Court to ask the Government to notify a particular Act of Legislature. When Parliament has passed an Act, empowering the executive to notify this Court cannot interdict and direct the Government to notify a particular Act on a particular date. It is completely within the realm of Legislature and Executive and I do not think the absence of notifying the Act will vitiate the present Scheme, which is impugned in this writ petition, which has been announced by the Central Government and the Doordarshan.
9. I am not able to accept the arguments of Mr. K. Chandru, based on the principle of 'legitimate expectation'. The Supreme Court in Food Corporation of India v. M/s. Kam-dhenu Cattle Feed Industries, has held that the mere reasonable or legitimate expectation of a citizen is not a distinct enforceable right. The only question that arises for consideration in these cases is whether the decision taken by Doordarshan is arbitrary. It has been held by the Supreme Court, in the. abovementioned case, as follows :--
"..... Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent...."
On the facts and circumstances of the cases on hand, I am of the view that the decision taken by the respondents is a bona fide one and that there is no arbitrariness in the same. By adopting the scheme, public exchequer gets the revenue at the rate of Rs. 80,000/- per half-an hour. In my view, it cannot be said that the scheme is a method of commercialisation. It is only a scheme of giving licence for telecast of programmes by outside private parties on Doordarshan, of entertainment nature. I am not able to understand why the petitioners Association should feel aggrieved by the Scheme. The mere fact that anybody can take part in getting licences by this Scheme cannot be a reason for striking down this Scheme, itself. As I have already stated Doordarshan is not meant for making money by the members of the petitioner Associations, done. If the public interest is looked at in my view, the Courts should see only whether the Revenue gets the maximum. From the arguments made before this Court, it is seen the licence fee is too high as arty producer cannot make much profit out of it. That itself shows that the Government gets maximum from the persons who apply for licences for half-an hour time slots. No person is excluded by this Scheme. Each and every citizen of this country can apply for licence. No person is allowed to take away more number of shows arbitrarily. It is limited to maximum duration of 26 weeks. It is also argued that the basis of 'first come first served' , is arbitrary. I do not think that it can be said to be an arbitrary condition on the facts and circumstances of the cases on hand. In Erusian 'Equipment and Chemicals Ltd. v. State of West Bengal, , the Supreme Court has held as follows :
"... The Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largess and it cannot, without adequate reason, exclude any person from dealing with it or take away largess arbitrarily...."
It has further observed as follows :--
"..... 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 largess, 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 norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant or largess including award or jobs, contracts, quotas, licences etc. must be confined and structured, by rational relevant and non-discriminatory standard or norms and if the Government departs from such form, such standard or norm in any particular case or cases, tthe 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....."
In the cases before me, it cannot be said that any person can be picked up and chooses.
Every citizen has been given an opportunity subject to certain conditions that he should satisfy the authorities concerned and by ful filling the conditions and regulations of the new Scheme. A Division Bench of this Court in Krishnaswamy Associate (P.) Ltd. v.
Television Producers Chambers' of Com merce, 1992 Writ LR 664, has considered elaborately the effect of Article 14 of the Constitution of India and the administrative quasi-judicial actions of Government and the distinction from administrative actions gene rally operating in private law field. The Division Bench has considered the judgment of the apex Court in Union of India v.
Cynamide India Ltd., , wherein it has been held as follows :
".... Legislative action, plenary or subordinate, is not subject to rules of natural justice. In the case of Parliamentary legislation, the proposition is self-evident. In the case of subordinate legislation, it may happen that Parliament may itself provide for a notice and for a hearing, in which case the substantial non-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. But where the legislature has not chosen to provide for any notice of hearing, no one can insist upon it and it will not be permissible to read natural justice into such legislative activity. It is true that, with the proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish an illusion. Administrative quasi-judicial decisions tend to merge in legislative activity and, conversely, legislative activity tends to fade into and present an appearance of an administrative or quasi-judicial activity...."
In M/s. Kasturi Lal v. State of Jammu and Kashmir, , the Supreme Court has pointed out thus (at pp. 1999 and 1201 of AIR) :
"There are two limitations imposed by law which structure and control the discretion of the Government in this behalf. The first is in regard to the terms on which largess may be granted and the other, in regard to the persons who may be recipients of such largess.
So far as the first limitation is concerned, it flows directly from the thesis that, unlike a private individual, the State cannot act as it pleases in the matter of giving largess. Though ordinarily a private individual would be guided by economic consideration.... of self-again in any action taken by him, it is always open to him under the law to act contrary to his self-interest or to oblige another in entering into a contract or dealing with his property. But the Government is not free to act as it likes in granting largess such as awarding a contract or selling or leasing out its property. Whatever be its activity, the Government is still the Government and is, subject to restraints inherent in its position in a democratic society. The constitutional power conferred on the Government cannot be exercised by it arbitrarily or capriciously or in an unprincipled manner, it has to be exercised for the public good. Every activity of the Government has a public element in it and it must, therefore, be informed with reason and guided by public interest. Every action taken by the Government must be in public interest; the Government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated. If the Government awards a.... contract or looses out or otherwise deals with its property or grants any other largess, h would be liable to be tested for its validity on the touchstone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid ..... ..... ..... ..... .....
..... ..... ..... ..... ..... .....
The second limitation on the discretion of the Government in grant of largess is in regard to the persons to whom such largess may be granted. It is now well settled as a result of the decision of this Court in Ramana D. Shetty v. International Airport Authority of India, , that the Government is not free, like an ordinary individual in selecting the recipients for its largess and it cannot choose to deal with any person it pleases in its absolute and unfettered discretion. The law is now well established that the Government need not deal with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure, where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or granting other forms of largess, 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 some standard or norm which is not arbitrary, irrational or irrelevant. The governmental action must not be arbitrary or capricious, but must be based on some principle which meets the test of reason and relevance. This rule was enunciated by the Court as a rule of administrative law and it was also validated by the Court as an emanation flowing directly from the doctrine of equality embodied in Art. 14. The Court referred to the activist magnitude of Art. 14 as evolved in E. P. Royappa v. State of Tamilnadu, and Maneka Gandhi v. Union of India, and observed that it must follow as a necessary corrollary from the principle of equality enshrined in Art. 14 that though the State is entitled to refuse to enter into relationship with anyone, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstance, but it must act in conformity with some standard of principle which meets the test of reasonableness and non-discrimination and any departure from such standard or principle would be invalid unless it can be supported or justified on some rational and non-discriminatory ground. This decision has reaffirmed the principle of reasonableness and non-arbitrariness in governmental action which lies at the core of our entire constitutional scheme and structure."
Laying down, however, the test of reason-
ableness, the Supreme Court has in this judgment observed .
"Now what is the test of reasonableness which has to be applied in order to determine the validity of governmental action. It is undoubtedly true, as pointed out by Patanjali Sastry, U. in State of Madras v. V, G. Row, , that in forming his own conception of what is reasonable in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judge participating in the decision, would play an important part, but even so, the test of reasonableness is not a wholly subjective test and its contours are fairly indicated by Constitution. The concept of reasonableness in fact pervades the entire constitutional scheme. The interaction of Arts. 14, 19 and 21 analysed by this Court in Meneka Gandhi v. Union of India, clearly demonstrates that the requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights and, as several decisions of this Court show, this concept of reasonableness finds its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animatex the Directive Principles. It has been laid down by this Court in E. P. Royappa v. State of Tamilnadu, and Meneka Gandhi's case (supra) that Article 14 strikes at arbitrariness in State action and since the principle of reasonableness and rationality which is legally as well as philosophically and essential element of equality or non-arbitrariness, is projected by this Article, it must characterise every governmental action whether it be under the authority of law or in exercise of executive power without making of law. So also the concept of reasonableness runs through the totality of Article 19 and requires that restrictions on the freedoms of the citizen, in order to be permissible, must at the best be reasonable. Similarly Art. 21 in the full plenitude of its activist magnitude as discovered by Mcnka Gandhi's case, insists that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law and such procedure must be reasonably fair and just. The Directive Principles concretist and give shape to the concept of reasonableness envisaged in Articles 14, 19 and 21 and other Articles enumerating the fundamental rights. By defining the national aims and the constitutional goals, they set forth standards or norms of reasonableness which must guide and animate governmenlal action. Any action taken by the Government with a view to giving effect to any one or more of the Directive Principles would ordinarily, subject to any constitutional or legal inhibitions or other overriding considerations, qualify for being regarded as reasonable, while an action which is inconsistent with or runs counter to a Directive Principle would prima facie incurred the reproach of being unreasonable.
So also the concept of public interest must as far as possible receive its Orientation from the Directive Principles. What according to the founding fathers constitutes the plaines requirement of public interest is set out in the Directive Principles and they embody per excellence the constitutional concept of public interest. If, therefore, a governmental action is calculated to implement or give effect to a Directive Principle, it would ordinarily, subject to any other overriding considerations, be informed with public interest.
Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid."
Having said as above, the Supreme Court indicated the Corollary in these words (at Pp. 2000 and 2001 of AIR):
"It must follow as necessary corrollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. The Government, therefore, cannot for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so. Such considerations may be that some Directive Principle is sought to be advanced or implemented or that the contract or the property is given not with a view to earning revenue but for the purpose of carrying out a welfare scheme for the benefit of a particular group or section of people it or that the person who has offered a higher consideration is not otherwise fit to be given the contract or the property. We have referred to these considerations on!y illustratively, for there may be an infinite variety of considerations which may have to be taken into account by the Government in formulating its policies and it is on a total valuation of various considerations which have weighed with the Government in taking a particular action, that the Court would have to decide whether the action of the Government is reasonable and in public interest. But one basis principle which must guide the Court in arriving at its determination on this question is that there is always a presumption that the governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest because as we have said above, there are a large number of policy considerations which must necessarily weigh with the Government in taking action and therefore the Court would not strike governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied it would be the plainest duty of the Court under the Constitution to invalidate the governmental action. This is one of the most important functions of the Court and also one of the most essential for preservation of the rule of law. It is imperative in a democracy governed by the rule of law that governmental action must be kept within the limits of the law and if there is any transgression, the Court must be ready to condemn it. It is a matter of historical experience that there is a tendency in every Government to assume more and more powers and since it is not an uncommon phenomenon in some countries, that the legislative check ". . . . is getting diluted, it is left to the Court as the only reviewing authority under the constitution to be increasingly vigilant to ensure observance with the rule of law and in this task, the Court must not flinch or falter. It may be pointed out that this ground of invalidity, namely, that the governmental action is unreasonable or lacking in the quality of public interest, is different from that of mala fides though it may, in a given case, furnish evidence of mala fides....."
(Underlining is mine).
So if the Scheme, which is impugned in these writ petitions, is tested at the touchstone of Article 14 of the Constitution of India, it cannot be said that it is violative of Article 14 of the Constitution of India. It cannot be said that the activity of the Government of India is not guided by public interest. I am not satisfied with the bald allegations stating that certain persons are already chosen and as such this scheme itself is to be held as bad. It is well settled that mere bald allegations are not sufficient to hold that the Scheme itself is bad in law.
10. In a case where fresh tenders were called for, a Division Bench of this Court in Chokhant International Ltd. v. Board of Trustees of The Port of Madras, 1987 Writ LR 529 has held as follows (at p. 557);
".....We must, therefore, bear in mind the fact that unless we are satisfied that the Board of Trustees had not acted like a body are reasonable men or that the decision which they have taken was not such that a reasonable person in the circusmtances of the case would not have taken, or that they had taken into account any extraneous considerations which affect their decision, the decision to call for fresh tenders will not be open to challenge.
In view of trie undoubted legal position that if one of the tenderers must also be given an opportunity to give higher bids, the Board of Trustees, in our view, were quite justified in closing all the tenders and calling for fresh tenders....."
11. In Sachidanand Pandey v. State of West Bengal, when considering the question whether without inviting tenders or without holding a public auction, the Government can negotiate straightway with Taj Group of Hotels, the Supreme Court has held as follows (at p. 1133);
"..... On a consideration of the relevant cases cited at the bar of the following propositions may be taken as well established: State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is a important so as doing justice. Nothing should be done which gives an appearance of bias, jobbery and nepotism."
But the facts of the cases before me are stronger than the case in the abovementioned decision, infavour of the Government. Here it is only a case of licensing. As I have always stated it is of public interest, and in the interest of the Revenue.
12. In the very same way, if the Scheme and the guidelines are looked at, I do not think it can be said to be unreasonable or arbitrary. As and when the Scheme starts functioning, if it is found that the respondents have acted arbitrarily, it may open to licensees to object to it and if the licensee contravenes the conditions, the Doordarshan can enforce the conditions of the licence. That is why the power to revoke licence is kept with Door-darshan. This itself shows that it is a scheme of licensing and not a question of lease or contract or a tender. The licence fee is fixed for half an hour and if any citizen wants to get it, he has to get the same after paying the amount according to the terms and conditions.
13. That apart, no principle of selection arises in the scheme announced. No question of appointing an expert committee also arises. If a person applies for licence, after paying the necessary fees, it should be given on the basis of "first come first served". The principle of "first come first served" is an accepted principle in an unreported decision of this Court in S. Meenakshisundaram v. The State of Madras Rep. by the Secretary to Government, Food Department, Madras (Writ Petition No. 272 of 1967 dated 23-4-1969) even in the grant of permit to establish rice mills in the State. In that case, the grant of permit is made on the basis of "first come first served" and also on the basis of the quantity of paddy available within a radious of three miles of the place where the new mill is to be situated. The learned Judge, Alagiriswami, J.) (as he then was) has taken the very same view in unreported decision in W.P. Nos. 2029 of 2030 of 1969. As such, the clause made in the Scheme in the cases on hand, that the "first come first served" cannot be said to be arbitrary. It cannot be presumed or assumed that any licence granted to any person will vitiate the terms and conditions and the norms prescribed for particular hours. It cannot also be presumed that the programmes so produced will be of no use and against the public interest. A reading of the Scheme itself shows that it is put on a trial basis. How far the Scheme is going to be workable is a thing to be seen only in future. Time alone can show how the Scheme works. At this stage, no decision can be arrived at, assuming that useless programmes will be given by licensees to the views and as such the viewers are going to be affected. The petitioner Associations in both cases cannot claim th.at they are only the guardians of viewers as if they are givinggood programmes to the viewers to suit their tastes.
14. That apart, I do not think the petitioners herein can be said to be 'aggrieved persons' to invoke the extraordinary jurisdiction of this Court. This Court has taken a consistent view, with regard to grant of permits under the Rice Milling Industry (Regulation) Act, (Central Act 21 of 1958) 1958, that the existing mill owner is not a "person aggrieved", when permit or licence under the Act is granted to another person for entitling him to file a writ petition. Applying the principle on the facts of the cases on hand, I am of the view the petitioners before me have no locus standi to question the grant of licence to others if they satisfy the conditions of the new scheme introduced by Doordar-shan. It is an accepted principle that rivalry in the same trade is permissible in law and no person can complain that this commercial interest is prejudicially affected: This is the view taken by a Full Bench of this Court in M, L. Krishnamurthi v. The District Revenue Officer, after considering the earlier judgments of this Court. If looked at that angle, I do not see how the petitioners Associations can be said to be "aggrieved persons" to come up before this Court and challenge the Scheme introduced by Doordarshan for licensing for certain time-slots, after certain conditions are complied with. As I have already stated, nobody is prevented from applying for licences. Nobody can say that equals are treated unequally. The members of the Associations could have very well availed of the opportunity if they mean real business. It is true that the meaning of the word "person aggrieved" may vary, according to the context of the Statute. But, on the facts and circumstances of the cases on hand, the petitioner Associations cannot at all be said to be "persons aggrieved". On this ground also, the writ petitions are bound to fail.
15. That apart, I am of the view that no mandamus can issue on the facts and circumstances of the cases on hand. I do not think any duty is cast upon the respondents by Charter, Common Law, Custom or even contract which can be enforceable by the issue of writ under Article 226 of the Constitution of India. (See Professor De Smith -- Judicial Review of Administrative Action -- IV Edition, page 540).
16. The decisions relied on by the learned Counsel for the petitioner in Satwant Singh v. A.P.O. New Delhi, and also in Meenakshi Mills v. Viswanatha Sastri, have no application to the facts and circumstances of the case on hand. In my view, the Doordarshan, which is a State, has not prevented anybody from applying under the Scheme for screening his programmes provided he is prepared to pay the required licence fees and follow the guidelines and conditions of the new scheme. For the reasons stated above, I see no merit in the contentions of the learned counsel for ,the petitioners in both cases. Accordingly, these writ petitions shall stand dismissed.
17. Petitions dismissed.