Aaa Film Motion Picture Producers ... vs Union Of India & Ors.
1998 Latest Caselaw 759 Del

ORDER

Anil Dev Singh, J.

1. These two petitions raise common questions. Therefore, both the writ petitions are being disposed of together.

The first petitioner, AAA Film Motion Picture Producers, is a sole proprietary firm of the second petitioner, Mr. Sanjay Khan. The petitioners are engaged in the business of production and direction of motion pictures and T.V. Serials. The Deputy Controller of Programmes, Directorate General Doordarshan, by means of communication dated May 13, 1996 informed the petitioners that their proposed sponsored programme titled 'JAI HANUMAN' had been slotted for telecast on the Metro Channel on Sundays from 10.30 A.M. to 11.30 A.M. w.e.f. June 2, 1996 for a total of thirty-nine episodes. The letter also set out the terms and conditions under which the serial was approved for telecast. It was further, inter alia, provided that no extension would be considered beyond the stipulated number of episodes. It appears that the petitioners requested for extension would be considered beyond the stipulated number of episodes. It appears that the petitioners requested for extension of the serial on DD-2. Pursuant to the request, on March 21, 1997 the serial was extended for fifty-two episodes. On April 2, 1997 the Controller of Programmes, Doordarshan, rescheduled the serial for telecast on the National Network of the Doordarshan (DD-1) w.e.f. May 6, 1997 between 2130 and 2230 hours for the same number of episodes, namely, fifty-two episodes on the terms and conditions specified therein. The relevant and material terms having a bearing on the controversy raised in the petition need to be noticed :

1. No request for further extension of number of episodes will be entertained.

2. Doordarshan reserves the right to alter time, date and duration of its telecast, if necessary, due to any programme exigen cies, etc. If the on-going serial got extension because of the popularity in terms of the Viewer ship rating and commercial earning etc. The serial will automatically be shifted and reslotted to a subsequent date.

2. It is pertinent to point out that when the serial was rescheduled episode No. 49 had already been telecast on DD-2. By means of letter dated January 19, 1998 the petitioners requested the Chief Executive Officer, Prasar Bharati, Doordarshan, to grant extension to the serial by raising the number of episodes from fifty-two to one hundred fifty-six. By another letter dated January 23, 1998 the petitioner pointed out that they had committed their finances for producing 156 episodes, and the first 52 episodes depicted one-third of the story. It was emphasised that discontinuation of the serial would create resentment in the viewers. It was also pointed out that the serial was paying Rs. 46 lakhs per week to Doordarshan. The request of the petitioners, however, was not accepted by the Prasar Bharti. The decision was communicated to the first petitioner by letter of the respondents dated February 11, 1998. By this letter the petitioners were asked to wrap up the story. The petitioners by their letter dated February 18, 1998 pointed out to the respondents that the petitioners had already shot additional 29 episodes. Besides, it was also pointed out that Doordarshan was earning Rs. 56 lakhs as minimum guarantee per week from the telecast of the serial. Again by letter dated April 7, 1998 the petitioners stated that they had completed additional 32 episodes, each costing Rs. 16 lakhs approximately. The letter also claimed that 122 technicians and artists were working in the making of the serial. The petitioners requested the C.E.O. to reconsider their request. On March 25, 1998 the Controller of Programmes, Directorate General Doordarshan, Prasar Bharti, informed the petitioners that they should conclude the story of the serial within the sanctioned number of episodes as it is not possible to give further extension to the serial. The petitioners again on April 7, 1998 wrote to the Controller of Programmes that it was not possible for them to abruptly end the serial as it had merely covered one-third of the story. It was emphasised that the serial was popular among the audience and the termination thereof will create a public furore. Besides, it would inflict a heavy financial loss to the petitioners, and in the process will affect 122 technicians and artists. The same stand was reiterated by the petitioners by their letter dated May 11, 1998 to the Deputy Director General, Doordarshan. The petitioners by means of a representation dated April 6, 1998 to the Minister of Information and Broadcasting requested for grant of extension to the serial. A further request for extension was sent by the petitioners on June 1, 1998 to the C.E.O., Prasar Bharti, Doordarshan. On June 3, 1998 the Controller of Programmes, Directorate General Doordarshan, Prasar Bharti, rejected the request of the petitioners for extension of the serial. The communication pointed out that as a matter of policy no extensions were granted to any serial being telecast on prime time and any exception to this rule would be violative of the new approach. The communication also brought out the fact that when the petitioners made the proposal they had planned to finish the serial within 52 episodes and the subsequent request for extension was wholly unreasonable. It was pointed out that the story of Lord Hanuman could be completed in one episode as also in one thousand episode. It was made clear that no extension to the serial would be granted under any circumstances and the petitioners should end the serial on June 6, 1998 by completing the entire story within 52 episodes. The petitioners not being satisfied with the communication of the Controller of Programmes dated June 3, 1998 again wrote to the Chief Executive Officer on June 4, 1998 citing instances, inter alia, of serials which had been given extensions from time to time. The C.E.O. by letter dated June 4, 1998 to the petitioners, referred to the fact that none of the serials had been given extensions after the coming into the existence of the Prasar Bharti Broadcasting Corporation of India Act, 1990 (for short 'the Act'). He further referred to the fact that he had taken a policy decision that no prime time serial would be given extension under any circumstances as the grant thereof leads to all sorts of malpractices. The petitioner, on June 17, 1998, has filed the instant petition challenging the decisions of respondents 3 to 5 dated March 25, 1998, June 3, 1998 and June 4, 1998 refusing to extend the telecast of the serial 'Jai Hanuman' and seeking a direction to the respondents to grant extension to the serial till 152 episodes.

3. The main contention of Mr. Arun Jaitley, learned senior counsel appearing for the petitioners, is that respondents 2 to 5 have failed to consider the request of the petitioners for extension of the serial 'Jai Hanuman' according to the policy of the Doordarshan christened as "Revised Scheme For Allotment of Time Slot on Satellite Channels of Doordarshan" (for short 'the Revised Policy'). It was pointed out that this court by its order dated September 21, 1993 had set aside the first come first served scheme of the Doordarshan for satellite channels and had directed the Doordarshan to introduce an appropriate scheme for allotment of time slots on its satellite channels. Pursuant to the direction, the Doordarshan formulated the 'Revised Schemes. The learned counsel submitted that it was this 'Revised Scheme' which is applicable and respondents 2 to 5 should have considered their request in the light of the provisions of the scheme.

4. It was further urged that according to the 'Revised Scheme' programmes which are of high quality and have large Viewer ship and revenue generation potential can be run for more than fifty-two weeks with periodic reviews with increase in commercial commitments by the producer by way of additional spot buys during the running of the serial. Mr. Jaitley invited my attention to the rating of the serial as determined by Doordarshan Audience Research Television (DART) and submitted that the serial 'Jai Hanuman' has consistently maintained high rating. For the period from April 6, 1997 to May 2, 1997 it attained a rating upto 54.5 and for the period May 17 to 23, 1998 it attained a rating of 48.7. Besides it ranked third in position out of ten top serials. He also pointed out that in terms of revenue generation the serial pays Doordarshan a minimum sum of Rs. 56 lakhs per week. Learned counsel submitted that 'Jai Hanuman' is the highest revenue earning serial as compared to all other serials of Doordarshan channels. According to him the serial qualifies for extension in terms of the 'Revised Policy'. It was also canvassed that the Prasar Bharti has not considered the question of the extension of the serial in the light of the 'Revised Policy'. The Prasar Bharati was bound to consider the request of the petitioner for extension of the serial in accordance with the 'Revised Policy' especially when the policy had been formulated by the Government in pursuance of the order of the Court and disregard of the same cannot be countenanced in law. The action of the respondents is unreasonable, unfair and arbitrary. Referring to the letter of the C.E.O. dated June 3, 1998 Mr. Jaitley submitted that the C.E.O. was not competent to frame a policy on his own contrary to the 'Revised Policy'. Learned counsel invoking the principle of promissory estoppel submitted that on the basis of the 'Revised Policy' the petitioners altered their position to their detriment by completing production of 85 episodes at the cost of Rs. 24.95 crores. It was also asserted that the petitioner had employed a large number of persons for completing the serial. This was done on the basis of legitimate expectation that the serial will get the requisite extension in view of the 'Revised Policy'. The refusal to grant extension has not nexus with the object sought to be achieved by the 'Revised Policy'. According to the 'Revised Policy' the best programme in terms of high quality Viewer ship and revenue generating potential merits extension. According to the learned counsel, the Revised Policy has not been superseded and the refusal of the Prasar Bharati to grant extension to the serial stems from the whim and caprice of its C.E.O. He further submitted that a written policy framed by the Government could be changed by the C.E.O. Since the Board of the Prasar Bharati had neither taken a decision to change the policy, nor has it promulgated a fresh policy, the 'Revised Policy' remains in force. Even if it is assumed that the 'Revised Policy' has undergone a change, the new policy cannot wipe out the existing rights of a party who has been producing the serial for telecast under the old policy ('Revised Policy').

5. On the 10 other hand, learned counsel for the respondents submitted that the 'Revised Policy' is applicable only to the programmes telecast on DD-2 and not on DD-1. He further submitted that after the coming into force of the Act, none of the serials have been granted extension. In the past practice of granting extensions was being misused inasmuch as more often than not the producers were not taking adequate care about the quality of production of the serials and the storyline was being dragged unnecessarily. It was also submitted that the business of seeking extensions led to all sorts of malpractices and, therefore, a policy decision was taken that no serial would be given extension under any circumstances. Learned counsel pointed out that Prasar Bharati Board passed a resolution whereby all the financial powers under the Act were delegated to the Chief Executive Officer. Pursuant to the delegation of powers, the C.E.O. took a conscious decision to do away with the system of extensions to the serials. He highlighted the fact that there was no reason for the application of the doctrine of legitimate expectation as the terms and conditions under which the petitioners were allowed to telecast the serial clearly stated that no extension shall be given beyond fifty-two episodes.

6. At the threshold it would be advantageous to refer to the letter of the Prasar Bharati dated April 2, 1997 whereby the serial was rescheduled for telecast on national Network of Doordarshan on certain terms and conditions including the one that the serial was approved for telecast for fifty-two episodes and no request for further extension of number of episodes would be entertained. The rights and obligations inter-se the petitioners and respondents spring from the above said letter dated April 2, 1997 and the petitioners cannot compel the respondents to alter the terms thereof after both the parties acted upon it. The letter serves as an agreement between the parties. It would not be permissible to say that though the agreement between the parties did not permit further extension of the serial, there was a secretly devised condition or term agreed upon by and between them which is not found in the letter dated April 2, 1997. As the Prasar Bharati cannot force the petitioners to do something which is not found in the agreement, in the same manner the respondents cannot be compelled to consider the case of the petitioner for extension de hors the agreement, on the basis of the 'Revised Policy'. It is significant that despite the 'Revised Policy' the parties had agreed that no request for further extension shall be entertained by the respondents. Learned counsel for the petitioners submitted that grant of extension was envisaged in the agreed terms for telecast of the serial. In this regard he referred to clause (c) thereof. This clause reads as follows :

"(c) Doordarshan reserves the right to alter time, date and duration of its telecast, if necessary due to any programme exigencies etc. If the on-going serial gets at extension because of the popularity in terms of the Viewer ship rating and commercial earning etc. Your serial will automatically be shifted and reslotted to a subsequent date."

7. The above clause did not confer right on the petitioners to seek extension of the serial. It simply made a provision to shift the instant serial to another date in the event of the then on going serial securing an extension. When the parties enter into an agreement with each other, it is the agreement alone which determines their rights and obligations quo each other. The petitioner is not justified in invoking the principle of legitimate expectation as it cannot be invoked to modify or vary the express terms of the agreement between the parties. When the agreement specifically postulates that no extension shall be granted to the serial, the petitioners cannot be allowed to seek the protection of a policy decision of the Government. neither the rule of promissory estoppel not the doctrine of legitimate expectation can be applied to amend, alter or vary express terms of the contract between the parties.

8. In Assistant Excise Commissioner and Others Vs. Issac Peter and Other, , the Supreme Court refused to apply the principle of legitimate expectation and promissory estoppel as the parties were governed by the terms and conditions of a contract between them. In this regard it observed as follows:

"Learned counsel for the respondents sought to invoke the rule of promissory estoppel and estoppel by conduct. The attempt is a weak one for the said rules cannot be invoked to alter or amend specific terms of contract nor can they avail against statutory provisions. Here, all the terms and conditions of the contract, being contained in the statutory rules, prevailed.

Learned counsel for the respondents also sought to rely upon the rule of legitimate expectation which the licensees entertained in view of the practice during previous years. Firstly, the rule cannot be invoked to modify or vary the express terms of contract, more so when they are statutory in nature..."

9. Thus, the position which clearly emerged from the above said decision of the Supreme Court is that the doctrine of promissory estoppel and legitimate expectation will have no play where the parties are governed by a contractual relationship as the rights and obligations of the parties flow from the contract itself and not from any extraneous material. Learned counsel for the petitioner is not right in his submission that the principle of promissory estoppel in a situation of this nature would apply. It is well established that the principle of promissory estoppel can apply only if the following conditions are satisfied :

1. That there was definite representation by the State or its functionary, and

2. That the persons to whom the representation or promise was made altered their position by acting upon such representation.

10. In Bakul Cashew Co. and Others Vs. Sales Tax Officer, Quilon and Another, , the Supreme Court, while laying down the requirements for the applicability of the promissory estoppel, observed as follows :-

"The allegations made in the petition do not establish (i) that there was a definite representation by the government to the effect that the government will not levy the tax; (ii) that the appellants in fact altered their position by acting upon such representation; and (iii) that they had suffered some produce sufficient to constitute an estoppel. Hence the whole case of promissory estoppel lacks the necessary factual foundation. It is, therefore, unnecessary to consider the question of law whether the plea of promissory estoppel can be raised against a legislation which levies tax and whether an assessee can claim exemption from a tax levied by the legislature merely on the basis of a representation of a minister."

11. In the instant case the agreement expressly declares that no further extension shall be given to the serial. Thus, there was a definite representation by the respondents that the serial shall not be given further extension. The respondents in their various letters time and again declined to grant further extension to the petitioner. Despite this position, if the petitioner committed its finances for production of the episodes beyond 52 numbers the respondents cannot be blamed for the same. In case the petitioner expended money for production of 152 episodes it has acted on its own and not on the representation or promise made by the respondents. The situation in which the petitioners find themselves is of their own making and the respondents cannot be blamed for it.

12. My attention has not been drawn to any representation of the respondents which could have given an impression to the petitioner that the respondents had agreed to give extension to the serial. The petitioners overlook the fact that the agreement was entered into after the formulation of the 'Revised Policy' on which they rely, and in case it was the intention of the parties to be governed by that policy one would have expected a clause in the agreement to that effect. In such a situation it would not be permissible to imply a term between the parties which is not found in the agreement. The clause in the agreement that no further extension shall be given to the serial shows that the 'Revised Policy' will have no play in governing the inter-se relations between the parties on such a matter. The refusal of the respondents to grant extension to the serial in consonance with the agreement cannot be found fault with. In any event a policy can not bind the authority for all times to come. It must be allowed to change or revise the policy in order to bring it in tune with demands of time. If the authority finds that the policy has a pernicious effect, it can scrap the same to root out the mischief. In such matters the executive must be allowed free play to formulate a fresh policy for the benefit of the public at large. It is the case of the respondents that the practice of granting extensions to the serials gave rise to malpractices. It also encouraged the tendency on the part of the producers to drag the story-line unnecessarily and not give adequate attention to the quality of the production. The decision of the respondents not to give extensions to the serials must be viewed from the perspective of the respondents who are in a better position to appreciate the maladies resulting from the 'Revised Policy'. They are the experts in their own field and solutions must be left to their judgment. If it was necessary in public interest to bring about change in the policy, the respondents were entitled to revise the same. The respondents have produced copies of their letters dated January 22, 1998 addressed to the producers whereby they were informed that extensions to the serials shall not be given. The relevant portion of the letters read as under :-

"It has been observed in case of many of the sponsored that generally when the pilot is produced and submitted to Doordarshan, the production of the same is done with care. The proper pace of the episode is also maintained. But once the serial is approved and the telecast begins, thereafter there is a tendency on the part of many of the producers of the serials not to take adequate care about the quality of the production. They also drag the storyline unnecessarily. As a result, the interest of viewers in the serial is reduced driving them to resort to channel surfing.

Presently, your serial entitled is on the air and we request you to take note of the observations made above. You may also kindly note that there is not possibility of our sanctioning more number of episodes to your serial other than the already approved number of episodes. When we are convinced that your serial is not upto the mark or is dragging unnecessarily we will reduce the number of episodes too. You are therefore requested to pay special attention to the quality of your programme which is being constantly monitored by us now."

13. In State of Tamil Nadu and Others Vs. L. Krishnan and Others, , the Supreme Court held that where the guidelines are misused and misapplied, the Government has the plenary power to withdraw the same.

14. Coming to the case in hand, the C.E.O., Doordarshan, due to felt necessities altered the policy of granting extensions to the serials. It is well settled that formulation of policy, its change, alterations, amendment or withdrawal are matters best left to the executive authority. The Court would be slow to interfere with such matters. I am supported in this view by the decision of the Supreme Court in Sher Singh and Others Vs. Union of India and Others, , where it was held as under :-

".. There will be no justification for the Court to interfere with the policy of the Government merely on the ground of change in the policy. If earlier the Government took a policy decision to grant parity to the library staff with the teaching staff it was the policy of the then Government and if for certain reasons the Government took a different policy decision to withdrew the parity and to enforce it again with effect from a certain date it will again be a matter of policy of the Government and it is not for the Court to interfere with such policy decision of the Government. Normally the Courts will not dictate the decision of the statutory authority in exercise of its discretion and formulation of its policies."

15. Learned counsel for the petitioners contended that the respondent cannot take a general decision that no extension shall be given to the existing serials. He further submitted that it is not a proper exercise of discretion to pass such an order. The inflexibility and the rigidity of the respondent in refusing to consider the request of the petitioner leads to arbitrariness. In support of his submission he relied upon a decision of the King's Bench Division in The King Vs. London County Council, (1918) 1 K.B. 68. This was a case where the prosecutrix, who was the Secretary of the West London Branch of the National League of the Blind, wanted to sell pamphlets of the society in Finsbury Park and on Parliament Hill. For this purpose she made an application in writing to the London County Council. The officer of the Parks Department declined to permit the sale of the said pamphlets in accordance with the resolution of the London County Council to the effect that the existing permits to sell literature at meetings, at certain parks and open spaces under the control of the Council be determined and that no new permits be issued. It was held by the King's Bench that the discretion of the County Council in giving or withholding their consent is like that of justices at licensing sessions in granting or refusing a certificate for a license to sell intoxicating liquors and they cannot pass a general resolution to refuse a license. In this regard it was observed as follows :-

"They must consider each application on its merits. So in this case the County Council do not properly exercise their discretion by passing a resolution that they will not consent to the sale of literature in the parks under their control. They must hear the application of the prosecutrix and decide it on its merits."

In this case the Council was exercising statutory powers under the London Council (General Powers) Act, 1890. It was the statutory function of the Council to consider the application seeking grant of a license. This function could not be allowed to be controlled by a general resolution to refuse a license to every applicant on the ground that no one shall be allowed to sell books in the park. A statutory function has to be discharged in accordance with the statute without being fettered by an executive fiat. However, in the instant case the parties are governed by the terms and conditions under which the serial is being telecast. It is a contractual matter and it is one of the terms that no further extension to the serial shall be granted. The petitioners cannot therefore draw any sustenance for their contention from the decision in the above case.

16. Learned counsel for the petitioners also cited the decision in R. Vs. Rotherham Licensing JJ, (1939) Vol. 2 All E.R. Annotated 710. This decision also does not have any application to the instant case.

17. Mr. Arun Jaitley, learned senior counsel for the petitioners, referring to the 'Revised Policy' submitted that the respondents in making a decision whether or not the petitioners should have been granted extension were required to consider the merits of their claim for extension, that is to say, the respondents were required to consider the revenue generating potential of the serial and the rating of the same. Since both the relevant considerations were ignored by the respondents and the denial of extension was on grounds extraneous thereto, the action of the respondents needs to be struck down. In support of his submission learned counsel relied upon a decision of the Queen's Bench in Regina Vs. Inner London Education Authority, Ex parte Westminster City Council, (1986) 1 W.L.R. (Q.B.D) 28. This decision is also of no avail to the petitioners as the respondents have not taken into account any irrelevant consideration in not granting extension to the serial. When the third respondent, C.E.O., found that the policy to grant extensions was being abused and misused, it was open to him to discard the same and act according to the terms of the agreement which are binding on the parties. As already stated, an existing policy cannot have the effect of changing the terms of, or overriding a subsequent, intentional, deliberate and conscious agreement arrived at between the parties. When the parties with their eyes open enter into an express contract they cannot be later heard to say that a certain term was implied in the agreement.

18. Learned counsel for the petitioners also submitted that the respondents have not filed any written policy revoking the earlier Revised policy. Therefore, it cannot depart from the latter. In support of his submission learned counsel relied upon the decision of the Supreme Court in Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and Others, , and Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, . In Dr. Amarjit Singh Ahluwalia (supra) the Supreme Court held that the Government cannot depart from the administrative instructions at its sweet will without rational justification and fix an artificial date for reckoning the length of continuous service for the purpose of fixing the seniority of officers. The Supreme Court further held that such an action would be clearly violative of Articles 14 and 16 of the Constitution. It must be clearly understood that in this case the executive had given an artificial date from which the continuous service of officers was deemed to have commenced. This was in clear violation of clause (2)(ii) of the executive instructions. In the celebrated case of Ramana Dayaram Shetty (supra) the Supreme Court reiterated the settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of the action in violation of the same. It further held that every action of the executive Government must be informed by reason, and must be based on standards that are not arbitrary or unauthorised. The Supreme Court also clarified that the discretion of the Government is not unlimited in that it cannot give or withhold largesse in its arbitrary discretion or at its sweet will. The situation in Amarjit Singh Ahluwalia and Ramana Dayaram Shetty's cases (supra) were different than the one which prevails in the case in hand. In the instant case it cannot be said that the respondents without any rational justification refused to extend the serial. The refusal to grant extension is clearly justified in view of the agreement between the parties. The decision of the respondents, therefore, does not suffer from any irrationality or unreasonableness. When a party acts according to the agreement it cannot be said to have acted irrationally or arbitrarily. Therefore, these two decisions have no application to the facts of the instant case.

19. It needs to be clarified that it is not necessary that the change in policy must be brought about in the manner in which its formulation took place. 'Revised Policy' was formulated as previously the Doordarshan was allocating the slots in respect of satellite channels under the "first come first served scheme". This policy was found to be arbitrary, unreasonable, unjust and unethical by this Court. Accordingly, the policy was set aside by an order of the Court dated September 21, 1993. The court also directed the Doordarshan to introduce an appropriate scheme for allotment of time slots on satellite channels of Doordarshan. In compliance with the orders of this Court, the scheme of allotting time slots on satellite channels of Doordarshan was revised. The 'first come first served shceme' was scrapped. In the revised scheme power was given to the Doordarshan to allow a programme to run for more than fifty-two weeks subject to periodic reviews with increase in commercial commitments by the producer by way of additional spot-buys during the running of the serials. Though the High Court directed the respondent to frame a new scheme it does not imply that the scheme formulated pursuant to the directions has been rendered immutable and unalterable. On finding deficiencies in the 'Revised Scheme', which was framed pursuant to the directions of the Court, the third respondent was competent to alter, change or vary the same. The scheme could be altered by informing the concerned, by means of letters or by any other mode, that the same would not apply. In the instant case not only the respondents informed the producers that no extensions would be given to the serials in terms of the agreements governing the parties, but they also gave reasons for not granting extensions to them. The producers were told that extensions give rise to unhealthy practices, namely, the proper pace of the episode is not maintained and there is a tendency not to take adequate care about the quality of the production. The above communications of the respondents to the producers clearly exhibits and records the change in the policy of the respondents. It seems to me that the change in the 'Policy' is informed by reason and is duly documented in the communications to the producers. It is not necessary for the respondents to have issued its policy in a particular form. It is enough if the change in the policy is discernible from their acts and deeds. The petitioners have not been able to dislodge the claim of the respondents that after the coming into force of the Act not even a single extension has been granted to any of the serials being shown at the prime time.

20. A Division Bench of this Court in M/s. Bennett Coleman & Co. Ltd. and Another Vs. Prasar Bharati and Others (Civil Writ Petition No. 1066 of 1988, decided on May 29, 1998), answered similar questions as have been raised in the instant petition. This was a case where the petitioners had been running the FM Channel of All India Radio all over the country since 1993. Since the licenses of the petitioners were not renewed, On February 21, 1998 the respondents invited fresh tenders from intending FM broadcasters. It was urged on behalf of the petitioners that in view of their performance and as per the existing guidelines they were entitled to renewal of their licenses. It was also pointed out that in view of the legitimate expectation engendered by the policy they had made substantial investments for setting up the requisite infrastructure for running the FM Channel. The petitioners claimed relief, inter alia, in terms of guidelines especially clauses 7.2 and 7.3 thereof (hereinafter referred to as 'relevant clauses').It will be convenient to set out the clauses as it will facilitate reference thereto :-

"7.2 All India Radio may renew such license for a further period for which each license may apply as follows :-

(i) A licencee of all 365 days of the year may apply for renewal at least six months prior to the expiry of the existing license.

(ii) A licensee of all the 180 days of the six months may apply for renewal at least four months prior to the date of expiry of the existing license.

(iii) A licencee of all the 90 days of the three months may apply for renewal at least two months prior to the date of expiry of the existing license.

Decision to renew or to terminate the license will be communicated to the licensee/producer at least three months prior to the date of expiry of the earlier license in respect of (i) and (ii) above, and at least one month prior to the date of expiry of the earlier license in respect of (iii) above.

7.3 Management will base its decision about the license renewal primarily on the basis of the following criteria :-

(a) Overall performance of the programmer during the period of existing license.

(b) The quality rating of the programmer broadcast by the licencee."

Construing clause 7.3 of the guidelines the Division Bench held that there was no obligation on the part of the authorities to renew the licenses. The renewal clauses of the policy decision were relevant if and when there was a renewal and not otherwise. It was further held that the performance and the quality rating would be material factors in determining renewal but they were not the determinative factors. The Division Bench also held that guidelines can be departed from in public interest. The Division Bench also noticed clause 24 of the contract between the parties. This clause provided for renewal of the likens. Commenting upon the import of the said clause the Court opined that it did not confer any absolute right of renewal on the licencee. Dealing with the question of renewal of the license and legitimate expectation and change of policy the court observed as follows :-

"26. There is no direct provision for renewal of the license in the contract entered portion in this context is clause 24 of the Contract, which reads as follows :-

"The track record of licensees in terms of the quality of their programme would form an essential criteria at the time of considering renewal of their license."

27. A perusal of the aforesaid term of the contract clearly establishes that there is no absolute right of renewal available to the licensee but in case there is a renewal granted, the quality of the programme broadcast by the licensee would form an essential criteria for grant of renewal.

xx xx xx

32. The law relating to legitimate expectation has been laid down in more detail in Hindustan Development Corporation's case (supra), . While discussing the principle of legitimate expectation the Hon'ble Supreme Court held that in case where a legitimate expectation is not fulfillled then the decision maker should justify the denial of such expectation by showing some overriding public interest. It was also held that this right operates in the field of public law. The court held that if it is a question of policy, even by way of change of old policy, the courts cannot interfere with the decision. The court further held that only if the denial of the legitimate expectation in a given case amounts to denial of rights guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power of violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14. The petitioners have been unable to establish that the impugned action fails in any of the aforesaid categories."

At another place the Division Bench held as under :-

"38. Here the 'basis' of the claim based on legitimate expectation having disappeared after the change of policy the aforesaid decision does not help the petitioner in sustaining their pleas."

21. Thus it is obvious that despite the existence of clause 7.3 of the guidelines, it was held that renewal clause was relevant if and when there was a renewal. Therefore, it clearly means that when there is no renewal, clause 7.3 of the guidelines would not apply. Similarly, taking a cue from the above decision, clause (c) of the terms and conditions of the agreement under which the serial was put on the air, if stretched to accommodate the meaning given to it by the petitioners, will apply only when the serial is granted extension. If the respondents agree to grant extension to the serial in that event the number of episodes for which extension should be granted would be determined on the basis of the Viewer ship rating and potential for commercial earning.

22. As regards the question whether the C.E.O. had the power to alter or modify the 'Revised Policy' it needs to be noticed that the Prasar Bharati Board in its first meeting held on December 10/11, 1997 passed a resolution whereby all financial powers under the Act were vested in an Executive Member/Chief Executive of the Prasar Bharati. Thus, the CEO had the requisite power to dispense with the policy of granting extensions to the serials telecast at prime time. Assuming for the sake of argument that he did not have the power to change the existing policy it will not alter the situation as the petitioners have been validly declined extension in accordance with the agreement between the parties.

23. In view of the above discussion all the challenges of the petitioners directed towards the impugned letters/decisions of the respondents fail.

24. Before parting with the matter it needs to be pointed out that while extension to a serial is not to be granted beyond the original number of episodes sanctioned for telecast, it remains in the discretion of the respondents to sanction at the threshold and in the first instance any number of episodes while agreeing to telecast a serial. Since the respondents are not allowing extensions to the serials, there is hardly any justification for sanctioning a serial to run beyond a reasonable number of episodes. Many producers may not even get slots for their productions because of serials which have been allowed long runs over Doordarshan. Learned counsel for the petitioners points out that the instant serial is to be replaced by a film song and dance based programme, namely, Nehle Pe Dehla, which has been sanctioned to cover 104 episodes. It is not disputed by the respondents that the said serial has not storyline and yet has been cleared for 104 episodes while 'Jai Hanuman' which has a storyline was sanctioned for 52 episodes. The respondents have not shown any concern for the viewers who have been rendered with no explanation as to why the serial in question is being terminated when the story does not end with the last sanctioned episode. The blame also lies at the door of the petitioners. They have failed to complete the story within the stipulated number of episodes. Both the petitioners and the respondents have shown lack of sensitivity towards the viewers. The justification given by the petitioners in not completing the serial in fifty-two episodes is that when the serial was shifted from DD-2 to DD-1 for being shown on prime time it had already telecast 47 episodes, and the terms permitted the petitioners to repeat all the episodes. It was also pointed out that in case of repeat episodes, the premium is to be taken as 50% as against 100% prescribed in the rate card. This is no justification. Even if 47 episodes had already been shown the petitioners could complete the story line within the stipulated sanctioned number of episodes by compressing the same. Keeping in view the interests of the viewers, I consider it appropriate, to direct the respondents to permit the petitioner to complete the serial within seven further episodes. In case the petitioners do not complete the storyline within sever further episodes, it will be open to the respondents to take action against the petitioners in accordance with law. It shall also be open to the respondents to consider while granting sanction to the other serials of the petitioners the inability of the petitioners to complete the instant serial. The commercial terms in respect of the serial in question beyond the last sanctioned episode will be one which is applicable to 'Nehle Pe Dehla'.

25. The writ petition is disposed of with the above observations and directions.

26. It is, however, clarified that in case the respondents consider giving further extension to the serial beyond the above mentioned seven episodes, this order will not come in their way and it will be entirely in their domain to grant or not to grant any further extension to the serial.

CWP No. 3056/98 : (JK Telefilms & Exports and Another Vs. Union of India and Others)

27. Learned counsel for the petitioners submitted that the case of his clients stands on a better footing than the case of AAA Film Motion Picture Producers (CWP No. 2982/98) as the respondents by means of their letter dated October 13, 1997 had agreed to grant extension to the serial 'Padosan' but contrary to its earlier representation they have retracted the same and have declined to give extension to the serial.

28. The facts lie in a very short compass. A firm offer for slotting of the serial 'Padosan' was given by the Doordarshan to the petitioners for exhibiting twenty-six episodes on the Doordarshan with the condition that no further extension to the serial shall be granted. However, contrary to the express condition the serial was given extensions from time to time and ultimately the same was extended upto seventy-eight episodes. But this was done before the C.E.O. joined the second respondent Prasar Bharati. By letter dated June 5, 1998 the respondents declined to give extensions to the serial beyond seventy-eight episodes. This has resulted in filling of the writ petition by the petitioners against the above said impugned action of the respondents.

29. Mr. Rajiv Nayar, learned senior counsel for the petitioner pointed out that by letter dated October 13, 1997 the respondents informed the petitioners that the serial for twenty-six more episodes beyond fifty-two episodes, i.e., for seventy-eight in all, had been approved by the Doordarshan, and extension of the programme beyond seventy-eight episodes was to be allowed on revised minimum guarantee terms. He claims that by means of said letter the respondents had agreed to allow the petitioner extension of the programme beyond seventy-eight episodes and this was subject only to the revision of the minimum guarantee terms. He further submitted that in view of this categorical statement of the respondents the petitioner was legitimately expecting that the serial would be extended. In view of this legitimate expectation the petitioner committed its finances in the production of further episodes. After having agreed to give extension to the serial, the respondents are estopped from denying extension to the serial on the principle of promissory estoppel. Except the above feature, which according to the learned counsel for the petitioners places the case of his clients on a higher pedestal than the case of the petitioners in CWP No. 2982/98, no other distinguishing feature has been pointed out.

30. The submission of Mr. Nayar on the principle of legitimate expectation and promissory estoppel does not carry conviction. In M/s. Bennett Coleman & Company Limited and Another Vs. Prasar Bharati and Others, (CWP No. 1066/1998, decided on May 29, 1998) a Division Bench of this Court approved the statement of law in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition (page 572) where it is stated that to found a legitimate expectation the representation must be clear, unambiguous and devoid of qualification. The statement of the respondents in their above said letter dated October 13, 1997 does not fall in the category of a statement which can bind the maker thereof on the principle of promissory estoppel. The doctrine of legitimate expectation is also not attracted. The letter dated October 13, 1997 of the respondents to the petitioner does not carry a clear, unambiguous, unequivocal and precise statement agreeing to the further extension of the serial. It does not even refer to the minimum guarantee terms on which extension was to be given to the petitioner. It also does specify the number of episodes for which extension will be granted. The so called representation was not an unqualified one. The representation would have been complete and binding if the respondents would have indicated the number of episodes for which extension would be allowed and the revised minimum guarantee terms. Until and unless minimum guarantee terms were decided, the statement of the respondents would be short of a representation attracting the principles of legitimate expectation and promissory estoppel. It is not claimed by the petitioner that like serial 'Jai Hanuman' 'the serial' 'Padosan' has a running storyline. Each episode of the serial Padosan is a complete story by itself. Therefore, the considerations which have prevailed in directing the respondents to permit the petitioners to complete the serial 'Jai hanuman' within seven further episodes are not present in the instant case.

31. Accordingly, this writ petition fails. The interim order is vacated.