ORDER Arijit Pasayat, CJ.,
1. This writ petition stated to have been filed in public interest, in essence challenges the tenders floated by the Govt. of India, Ministry of Information and Broadcasting. The tender, covered by tender document No. 212/2/99-B(d) relates to contract for FM broadcasting through private agencies.
2. Some of the eligibility conditions of applicants are as follows:
1. Eligibility for Applicants:
Companies registered in India under Indian Companies Act, 1956 unless disqualified vide Clause-2 below are eligible to apply. Further, all the share holding in the company should be by Indiana except for limited share holding by Foreign Institutional Investors, Non-resident Indiana, Persons of Indian Origin and Overseas Corporate Bodies subject to such ceiling as decided by Ministry of Finance from time to time.
2. Disqualification of holding of licence:
2.1 General Disqualification:
(a) Companies not incorporated in India;
(b) Any company controlled by a person convicted of an offence involving moral turpitude or declared as insolvent or applied for being declared insolvent;
(c) Subsidiary company of any applicant in the same centre;
(d) Companies with the same management within a centre;
(e) More than one Inter-Connected Undertaking at the same centre.
Note. If the applicant and his subsidiary company/holding company/company with the same management/inter-connected Undertaking submit more than one application for the same centre, all such applications will be disqualified.
2.2 Disqualification of religious bodies:
(a) A body whose objectives are wholly or mainly of a religious nature;
(b) A body which is controlled by a religious body or an associate of religious body.
2.3 Disqualification of political bodies:
(a) A body whose objects are wholly or mainly of a political nature;
(b) A body affiliated to a political body.
(c) A body corporate which is an associate of a body corporate controlled, held by, operating in association or controlling a body of political nature as referred above.
2.4 Disqualification of advertising agencies:
(a) An advertising agency;
(b) An associate of an advertising agency;
(c) Any body which is controlled by or a person associated with the above.
Note For the purpose of above:
The term "Same Management", `Subsidiary Company' and `Holding Company' shall have the same meaning as assigned under Section 4 of the Companies Act, 1956 "Inter connected Undertakings" shall have the same meaning as assigned in the Monopolies and Restrictive Trade Practices Act, 1969.
"Advertising Agency" means an individual or a body corporate who carries on business as an advertising agent (whether alone or in partnership) or has control over any body corporate which carries on business as an advertising agent and any reference to an advertising agency includes a reference to an individual who
(a) is a Director or Officer of any body corporate which carries on such a business, or
(b) is employed by any person who carries on such a business."
3. Petitioner No.1 states that he read a news item in Financial Express, Delhi Edition dated 1st August, 2000 about a proposal to issue letters of intent to various companies registered in India for broadcasting services at 40 centres in respect of FM broadcasting for which licenses are issued by the respondent. With reference to a decision of the Apex Court in , it is submitted that broadcasting media is intended to be under the control of the public as distinct from the Government and such a concept is implicit under Art 19(1)(a) of the Constitution of India, 1950.
4. It is highlighted that a bill called Broadcasting Bill 1997 is on the anvil pursuant to the directions given by the Apex Court, more particularly those contained in para 122 in the aforesaid case. Further grievance is that issuance of the licence to the successful tenderers would create a monopoly which may affect the right of cultural and religious organisations participating in the process and rendering broadcasting services. Main prayer has been made in the following terms.
b) Issue a writ of certiorari or any other order or direction quashing the tender of allotment of license to 40 centres and consequently issue a writ of mandamus or any other order or direction restraining the said respondents from issuing any such license and or letters of intent and further direct the respondent to place all the airwaves at the disposal of the independent public body to be constituted viz. the Broadcasting Corporation of India and in any event not to issue the letters of intent until a clear transparent and unequivocal scheme/policy is issued by the respondent placing the said airwaves also at the disposal of a non-commercial class before permitting the commercial class to exploit any airwave."
5. Opposing the petition, it has been stated by learned Additional Solicitor General that there is no element of public interest involved in the petition. On the contrary, the acceptance of such a petition as a public interest litigation would be a anti-thesis to the concept of public interest litigation. There is no element of monopoly created because 80 participants have come in response to the tender which was floated in November, 1999. The bids were opened at different venues in respect of groups 1,2 and 3 centres on 19.11.99, 24.11.99 and 29.11.1999 respectively and the final acceptance was done in March, 2000. Successful bidders have been asked to deposit the bid amounts within a specified period. On instructions, it is stated that letters of intent have been issued on 2nd and 3rd August, 2000 and about two-and-a-half months' time has been granted for deposit of amounts. It is pointed out that revenue of Rs. 430 crores is expected from these sources. It is further submitted that scope of judicial review is extremely limited and this is not a case where such exercise is called for.
6. The scope of judicial review in matters of administrative decision has been highlighted by the Court in many cases. In recent times the distinction between administrative orders and judicial or quasi judicial orders have practically ceased to exist in view of primacy of the rule of law. Administrative action is stated to be referable to broad area of Government activities in which the repositories of power may exercise every class of statutory function of executive quasi legislative and quasi judicial nature. It is trite law that exercise of power, whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. [See State of U.P. Vs. Renusagar Power Co., ]. At one time, the traditional view in England was that the executive was snot answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work 'Judicial review of Administrative Action (4th Edition at pages 285-287) states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it, it must not act under the dictates of another body or disable itself from exercising a discretion in such individual cases. Ins the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what has been authorised to do so. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can be conveniently grouped in two main categories: (i) failure to exercise a discretion; and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account and where an authority hands over its discretion to another body insets ultra vires.
The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinise the factual bases upon which discretionary power have been exercised. Judicial, review has developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify. The first ground is illegality the second irrationality and the third 'procedural impropriety'. Those principles were highlighted by Lord Diplock in Council of Civil Service Union Vs. Minister for the Civil Services (1984) 3 All ER 935. If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous such exercise of power will stand vitiated. (See: Commissioner of Income-tax Vs. Mahindra and Mahindra Ltd., AIR 1984 SC 1132: 1983: (1983 Tax LR 1286). The effect of several decisions on the question of jurisdiction has been summed up by Grahme Aledous and John Alder in their book 'Applications for Judicial Review, Law and Practice' thus:
"There is a general presumption against outstanding the jurisdiction of the Courts. So that statutory provisions which purport to exclude judicial review are constructed restrictively. There are, however, certain areas of Govt activity, national security being the paradise, which they regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government's claim is bonafide. In this kind of non-justiciable area judicial review is not entirely excluded but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Services Union v. Minister for the Civil Service this is doubtful. Lords Diplock, Scorman and Roskill appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject-matter of a particular power. In that case national security. Many prerogative powers are in fact concerned with sensitive, non-justiciable areas for example foreign affairs, but some are reviewable in principle, including the prerogative relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney-General's prerogative to decide whether to institute legal proceedings on behalf of the public interest."
Also see Pedfield Vs. Minister of Agriculture, Fisheries and Food; L.A. (1968) AC 997; and Council of Civil Service Vs. Minister for the Civil Service, (1984) 3 All ER 935(ML). 12. The Court must while adjudicating validity of an executive decision grant a certain measure of freedom of play in the joints to the executive. The problems of Government are practical ones and may justify, if they do not require, rough accommodations; illegal, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not discernible, the wisdom of any choice may be disputed or commented upon. Mere errors of Government are not subject to judicial review. It is only palpably arbitrary exercise which can be declared void. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the court intervene. While fair play is an essential ingredient of such action, similarly, fair play in the joints is also a necessary concomitant for administrative body functioning in an administrative sphere or quasi-administrative sphere.
"Discretion" Lord Mansfield stated in classic terms in John Wilke's case, (197) 4 Hurr 2528, must be a sound one governed by law and guided by rule, not by humour. Lord Denning put it eloquently in Breen Vs. Amalgamated Engineering Union, (1971) 1 All ER 1148, that in a Government of Laws" there is nothing like unfettered discretion immune from judicial reviewability." Courts stand between the executive and the subject alert, to see that discretionary power is not exceeded or misused. Discretion is a science of understanding to discern between right or wrong, between shadow and substance, between equity and colourable glosses and pretence and not to do according to one's wills and private effections. Lord Brightman elegantly observed in the case of Chief Constable of North Wales Police Vs. Evans (1982) 3 All ER 141 that:
"Judicial review, as the words imply is not an appeal from a decision, but a review of the matter in which the decision was made."
In Tata Cellular Vs. Union of India, , the apex Court classified the grounds challenge as under:
"Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilllment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality : This means the decision maker must (ii) understand correctly the law that regulates his decision (iii) making power and must give effect to it. (iv) Irrationality, namely, Wednesbury unreasonableness. (v) Procedural impropriety."
The action of the State, the instrumentality, any public authority or person whose actions bear insignia of public law element or public character are amenable to judicial review and the validity of such action would be tested on the anvil of Article 144 of the Constitution of India, 1950 (in short Constitution). The classic passage from the judgment of Lord Greens M.R. in Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation, (1948) 1 KB 223 illuminatingly states the position in law. The same reads as follows:
"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. I has frequently been used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself property in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said to be acting 'unreasonably'. Similarly there could overdream that it lay within the powers of the authority."
7. Though great emphasis was laid on the Broadcasting Bill 1997 by the petitioner, it was later on fairly accepted that the bill has lapsed and submission to keep the whole process in abeyance till the bill takes the shape of Act was given up. We may notice another challenge which has been made, i.e. stipulation of reserve license fees. It is stated that the amount fixed is excessive and beyond financial capacity of a commoner. It could not be shown how petitioners are affected admittedly when they did not intend to be bidders. In contractual matters, like the present one, no public interest litigation would lie. Licence fees being charged for the first year in respect of 40 centres for different categories of channels have been prescribed. There is a condition of 15% increase for every succeeding year. In view of the aforesaid factual position, we are of the view that no element of public interest is involved and therefore the petition is not entertained.
8. It is stated that there should be a clear-cut policy spelt out by the Government in terms of directions of the Apex Court. This is an aspect about which we do not think it necessary to give any directions is necessary to be given by this Court.
Dismissed.