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TMI Blog1993 (9) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... erved (FCFS' for short) set out in the scheme, and for setting aside the decision order dated 3/07/1993 seeking to change the FCFS basis of allotment of time slots. Civil Writ Petition 3117/93 was filed by Dr. Arvind Gupta also on 6/07/1993. In this the petitioner prayed for a writ that effect not be given to public notice inviting applications from "interested applicants" for preferential allotment of time slots to different class of applicants on FCFS basis, or any other basis and for setting aside the impugned public notice. A direction is also sought against the respondents for laying down clear, intelligible and fair standards for granting licenses for time slots to "eligible applicants" on satellite channels. And lastly, a direction to the respondents to lay down the eligibility criteria for interested applicants seeking licenses for transmitting programmes on satellite and metro channels. Other five writ petitions (CWP No. 3248/93 by Bennett, Coleman & Co Ltd .; CWPNo. 3275/93 by Hindustan Times Ltd. ; Cwp No. 3370/93 by Vijay Malhotra of Sri Productions : Cwp 3376/93 by Indus Television : and Cwp 3402/93by Indian Express Newspapers (Bombay) Ltd. were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, had already commenced satellite telecast from 1/04/1993. Though there is challenge to whole of the scheme as such, but the principal challenge is two fold : (1) The basis of FCFS and even of Rng is illegal and arbitrary. With this is also attached the question of earning of more public revenue by the Central Government, and (2) the eligibility criteria .Should it be there or not, and if so, in what form? 7. A question has also been raised as to how the scheme has come to be formulated. Was it in pursuance of a Cabinet decision or of the Ministry of Information and Broadcasting? Also what is the scope and authority of Air Time Committee of India (ATCI)? Do the functions of ATCI covered allotment of time slots on five satellite channels under the scheme. 8. We may also note that the main dispute concerns the entertainment channel and its prime time. 9. For the purpose of coming into operation of the scheme, the applications were to be received as from 5/07/1993 onwards on FCES basis and since the scheme is on FCFS basis all applications were required to be submitted in person or through a designated representative. This led to formation of queue outside the office of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r from adopting any scheme for allotment which is country to the defendants published guidelines for time slot allotment as contained in their booklet marked 'A'. C)An order for mandatory injunction directing the defendants to reconstitute the queue if forcibly broken by the time this petition is heard by this Hon'ble Court in accordance with the register maintained by the members of the queue. An application was also filed along with the suit seeking certain interim orders .The Court passed the following order on 4/07/1993 :Suit No. 1395/93 and I.A. Nos. /93 : (to be registered)Counsel for the plaintiffs undertakes to pay the requisite Court fee by 6/07/1993.Let the Suit and the Applications be registered. Summons in the Suit and Notices in the Applications to issue to the Defendantsfor 6th July 1993 dusty. It is stated that Defendant No. 1 has circulated another Scheme for allocation of time slots on five new channels. According to the new scheme the applications are to be accepted with effect from 9/07/1993. The question really is as to whether Defendant No .1 is entitled to change the Scheme which had already been announced and allegedly acted upon by various app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsees. The A.T.C.I. was to invite applications for allotment of time slots on metro channels and then to allot to the successful applicants the appropriate time slots. The A.T.C.I. was also to oversee through AIR/Doordarshan the adherence to the stipulated technical parameters for ensuring national radio frequency management. The scheme also laid down guidelines governing the programmes. The A.T.C.I. was enjoined to periodically review the programmes put out by the licenses and also to redress the grievances of individual or institution against any particular programme. The A.T.C.I. was empowered to suspend and revoke the license and also to renew the license. In the event of war or natural calamity the Government might, in public interest, take over the control and/or management of all broadcasting under the licenses issued under the Scheme. The license fee was to be fixed by the Government and it was the Government to give the interpretation if there was any doubt regarding any provision of the scheme. One of the eligibility criteria for the license under the scheme was that applicants should have proven track record in producing television/radio programmes, feature films, video ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be Rs. 10,000.00per 1 /2 hour. The above rates will be reviewed after a period of one year." It was clarified that the rates stated above would be applicable for the Metro channel which will have terrestrial distribution in the four metro cities, in respect of pure Satellite Channels without any terrestrial distribution through transmitters, the rates will be Rs. 10,000.00 for 1/2 hour except in the case of the Sports Channel where it will be Rs. 3,000 '-per 1/2 hour. The above rates were also to be reviewed after a period of one year. This was finally approved by the Minister on 10/04/1993. 14. It would appear that in the meanwhile, the Minister made a statement in the Parliament on 24/03/1993 regarding starting of additional satellite channels on Doordarshan by utilising spare capacity on the transponders of INSAT-ID and INSAT-IIA. The modalities of allotting time on these two new channels were stated to have been deliberated at a great length in the series of meetings taken by the Secretary. In his note dated 13/04/1993 sent to the Prime Minister, the Minister gave the resume of the formation of A.T.C.I., the scheme for allotment of time slots on second channel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s information and guidance." 15. It is for this interregnum period that the present impugned scheme is stated to have been introduced. As to how this took shape we might start with the note dated 19/04/1993 of Mr. Sanjiv Datta, Deputy Secretary(BP). It records that terms and conditions for the allotment of time slots on satellite channels have been framed in a manner similar to that adopted while allotting time slots in the metro hour introduced from 26/01/1993. then the silent features of the scheme are recorded. Mode of selection prescribed is : "First-come first-served basis subject to a graded preference linked to the number of days/weeks for which time slots applied for". Each applicant would be eligible for four half an hour slots per day, and in respect of films allottees entitled to one film slot per day. Then the note describes the advertisement time, license fee and as to bow the-same is to be paid, the bank guarantee and the processing fee. Public notice is proposed to be issued in the week of 19/04/1993 itself and application forms made available at 15 Doordarshan Kendras from 23/04/1993 the date of receipt of applications would commence from 7/05/1993 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants. Since there are no applicants and the application from has not been finalised we may not be able to give it away. The document has been printed. We may, Therefore, go ahead and allow D.D. to notify the details of application, terms, etc. for the three channels now. Dated 14-5-93" 16. When the first noting in the file(F. No. 8-4-93-PBC) started it was mentioned that there satellite channels will start functioning as from 15/05/1993 and these were the entertainment channel, sports channel, and business news and current affairs channel. The ether two channels enrichment channel and music channel, were proposed to start from 14/08/1993. It is in this context the Secretary refers to three channels in his note. On this the Minister calls for a meeting to discuss the public notice. On the following day, i.e., 15/05/1993. the Minister agrees that public notice should issue only on 1 June, 1993 and in the meanwhile publicity should be given to the printing of the document received from the Atci incorporating the agreements reached in the meeting taken by the Minister on 22/03/1993. The public notice is published thus with the approval of the Government and it will be nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment outside the ambits of ATCI. This may perhaps be taken into account before finalising the Public Notice. "The file is then sent to the Secretary whose note is as under :-"Since Atci has resigned there is no body as such to take any decisions .As and when the Atci or another organisation take sits place the channel can be operated by it if Govt. so decides. Basically the channels belong to Doordarshan and all transponders have been allotted in its name. As such they have the right tope rate them unless the Govt. specifies any other body. There is also a financial loss to the Government by not operating the channels-not to talk of permitting the foreign Tv networks Star, Zee and Atn to take money away from the country. May kindly approve the notification to enable a timely start to the channels. Sd/-31/5/93"Finally the Minister records as under :"Reservations for young talents could be made on all the other channels too. Approved, proposal for restructuring Nfdc maybe put up,Sd/-31 May 93" 18. We may now refer to the public notice bringing out the scheme which public notice has the sanction of the Government. Four new satellite based channels are sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on all working days. Each applicant will be given a computerised receipt giving all the details. At the time of applying, each application must be accompanied with a Bank Guarantee (as per specimen attached with the application form)equivalent to 10ø/o of the total license fee payable but subject to a minimum sum of Rs. 50,000.00 in case of entertainment channel and Rs. 10,000.00 in case of other channels and a maximum of180 Rs. 10.00 lacs. A non-refundable processing fee of Rs. 1,000.00 per application ,per channel would also be payable. A separate application must be made for time slots on each channel.9. Allotment of Time9.1. Time on all the channels will be allotted in chunks of half an hour each, 5-1/2 minutes of advertisement time will be available in each half-an-hour slot on each channel out of which 30 seconds will have to be used for social advertising and 30 seconds will be used by Doordarshan for cross channel promotion. Doordarshan will, however, not pay any amount to the licensee for the utilisation of time for cross channel promotion.9.2. Each producer can avail a maximum of 2 half-an-hour time slots per channel per week in prime time except in the case of: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as agreed that the scheduled receipt of application on 5.7.1993 should be postponed and the allotment done at a future date through random number generation through a computer.4. A note from Mib to the Prime Minister in the matter is placed below as desired.(R. Basu)Addl. Secy.3.7.93Sd/-(K.P. Singh Deo)3.7.93" 20. It will be seen that when the Minister approved this note, it had not been seen by the Secretary and the file did not come to the Minister through him. Nevertheless, the Minister could and did take the decision and that decision is of the Government. 21. Then it would appear that a new file or part file in the Minister is opened on the same day, i.e., 3/07/1993, and starts with the following note of the P.S. to the Minister and then the Minister sends this note to the Secretary for comments. This is how the file begins :MIB's Office mib desires to know as to what line of action is being contemplated regarding the press reports of 3/07/1993 which alleges malpractices pertaining to Doordarshan channel forms, queue etc. MIB further desires that in view of the above development, the programme could perhaps be postponed by one month i.e., instead of 5/07/1993, the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is would be easily arranged.6. It is my humble suggestion that the above points may kindly be considered before a postponement to 5/08/1993 as indicated by Ps to Mib is considered. The possibility of a legal situation arising may also kindly be seen. May like to review the matter at his convenience. Sd/-R. K. Bhargava3.7.1993MIBWe have discussed this note and Secretary's comments. Secretary and As (in charge of Doordarshan) were present. We reviewed the entire question/subject in toto. The various implications were discussed.2. Secretary's comments are logical. The system of first-come-first-served has stood the test of time since 26/01/1993till date nor criticism or mala fide intention/favoritism has been alleged. So we can follow this system. Credibility of ISRO has to be safeguarded. 'A' to be enforced comprisingMHA, ISRO be entertained and date for accepting be announced for 9/07/1993 since postponement has been announced.(initial)R.K. Bhargava3.7.93AS(B)Sd/- (initial)(K. P. Singh Deo) 3.7.93Minister, Min. of I & B It has become3.7.93 sub-judice.(initial)5.7.93On 5/07/1993 the Minister again records as under: "Since the matter is subjudice now, it is advisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation forms will be made on the basis of random number generation. A fresh date for receipt of applications and allotment of time slots on the basis of random number generation will be notified separately. This 185 may please be notified to all concerned and also announced on Doordarshan & Radio immediately and also later in the evening. "Petitioners said that announcement of this notice was made on the Doordarshan on 3/07/1993 at 5.45 p.m. and even as late as at 10.00 p.m. It was being announced that Government had adopted the random number generation. The respondents have been unable to tell us to at what point of time on 3/07/1993 this decision was reversed and they went back to FCFS basis. As a matter of fact every attempt seems to be in direction to keep from the Court the details and the fact that the decision from FCFS to Random Number Generation taken on 3/07/1993 was reversed on the same day itself. In the affidavit of Mr. R. K. Singh, Deputy Director(Satellite Channel) dated 14/07/1993, which has been reproduced above, there is no mention as to when the reversal of the decision from R.N.G. method to F.C.F.S. was taken. Rather impression is sought to be given that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in one of the queues were blocking entry of bonafide persons into the offices of Doordarshan.17. In the light of all these factors, it was decided on 3/07/1993 to (i) postpone the date for receipt of applications, and(ii) change the system of allotment to Random Number Generation through a computer. An internal communication to this effect was accordingly sent by the Government to Doordarshan the same day. Later in the day, a copy of the internal communication issued by the Doordarshan Directorate to its Kendras in Delhi, Bombay, Calcutta and Madras in this matter was pasted outside the Doordarshan office at 4, Tolstoy Marg by the police authorities, presumably in the hope that the queues that had formed there would disperse and they would be in a position to report compliance of the order of the Additional District Judge, Delhi, directing the police to remove the queue and allow it to form only 2 hours before the time of submission of applications prescribed by Doordarshan."Then he says that matter regarding change in the method of allotment was subsequently examined in greater detail and it was decided to continue with the original basis of allotment, i.e., FCFS. As to wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectfully submitted that it is totally misconceived. The1/2 hour slots available for allotment in the new 5 channels per year will be 27,872 of which 5148 will be on Prime time and the balance 22,724 will be on non-prime time. It is very unlikely that such a large number of slots can be sold at a premium .Moreover, it has specifically been mentioned in the scheme that transmission time will be gradually increased. This should also act as a disincentive. The Scheme requires the allotted to deposit the license fee seven days prior to the date of telecast in the succeeding week. Therefore, the weekly advance deposits for all slots in all channels together would be as follows: Entertainment Prime Time = Rs. 97,18,000Channel Non-Prime Time= Rs. 1,22,22,000Sports Channel = Rs. 2,52,000Business Channel == Rs. 9,80,000Enrichment Channel == Rs. 1,68,000Music Channel = Rs. 16,10,000Rs. 2,49.50,000Besides having to arrange such huge amounts, the allottees would have to arrange for the sale of over 44 hours per week(or over 2,300 hours per year) of commercial time. 23. There is not a single production house in the country which has the capacity to provide 8 hours of programming per day for 365 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he theory of cartelization is red herring. Asi these factors were taken into consideration for continuing with the first-come-first-served basis of allotment. "Again we groped in dark as to when the decision to go back to FCFS was taken and in so much detail that we required that the relevant files be produced in Court for our examination. The files were not available in the Court at that time and the learned Solicitor General appearing for the respondents admitted that he himself had not seen the relevant files and further that decision taken by the Government was not in any one of the files and there were number of files. He said it would take two days time to collect the files. We gave him time for the purpose. As to how the matter was examined in the Ministry the notes from the files reproduced above speak for themselves. We are really appalled to see as to how the decision has been arrived at to the Ministry. It would appear that some unseen hand had been working in the Ministry when decision from FCFS to Rno was reversed .What were the considerations that weighed for reversing this decision are certainly not all those mentioned in the affidavit of Mr. Singh. In this long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by the Minister in the part files that the date for receipt of applications which was fixed for 5/07/1993should be postponed and the allotment to be done at a future date through random number generation through a computer, there are nothings from 7/07/1993 to 4/08/1993. After this the second decision also dated 3rd July 1993 of the Minister again going back to F.C.F.S. basis is in a file which is in two sheets. The noting on the second sheet of 5/07/1993 says that since the matter was sub-judice it was desirable not to implement the order for going bank to F.C.F.S. basis. These two sheets are now paged 26, 27 and 28 and there is endorsement that these have been merged in the main file No. 8/4/93-PBC. We have not been able to find if this change of decision going back to F.C.F.S. was also communicated to the Prime Minister Mr.Sanjiv Datta, Deputy Secretary (BP) records his note on 8/07/1993. saying that as per decision of the Minister which was on the file that the receipt of applications scheduled for 5/07/1993 be postponed and allotment of time slots be done at a later date through random number generation and that the note informing this change was sent to the Prime Ministe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court of the Vacation Judge had already appointed a local Commissioner to verify the register and the applicants physically in the queue on 4.7.93), or the method of random Number Generation, which was in accordance with the MIB's note to Pm dated 3.7.93, wherein it had been decided that the receipt of applications scheduled for 5/07/1993 may be post pond ,and that the date of allotment of time slots be done at a later date through the computer, instead of "first come first served "basis ,and that fresh dates for this process would be announced separately .In accordance with this, Ddg, (Shri R.K. Singh) sent fax messages to the concerned Doordarshan Kendras on 3/7/93."The note of the Joint Secretary (B) is also dated 8/07/1993 and he marks the same to the Additional Secretary who after putting his signatures sends the same to the Secretary who records the following note ;"Since we gave a public notice in announcing the scheme, any amendment would also require a public notice. It will also require time to be given to the public so that they may make necessary preparations for participating in the scheme. Since so far we have not issued any public notice fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision would appear to have come to the knowledge of the first few persons standing in the queue outside the office of Doordarshan and that would explain why the queue was not broken up in spite of orders of the Court. 30. There has been shifting of stand by the Government as to how the allotment Is to be made. There reversal of the stand from random number generation again to FCFS would appear to be shrouded in mystery. While a great deal of publicity was given in the electronic media of the stand of the Government for going into random number generation till late in the night of 3/07/1993 there is noting on the record as to when the public was made known of reversal of this stand till the affidavit dated 13/07/1993 was filed by respondent No, 3 in the writ petition No. 3104/93 (Home Communication Network Limited). This petition questioning the change of method of Allotment from F.C.F.S. to random number generation was filed on 6/07/1993. It came up for admission on the following day when it was adjourned to the next day. On 8/07/1993 when notice were issued in this petition, the petitioner was not aware of the reversal of stand from random number generation to F.C.F.S., otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a creation of Government. It is a question of the tail wagging the dog. Not satisfied with the resignations, which were widely published in the Print Media (which was ridiculed in Parliament), files and inimical works and criticism of the dept./ministry was mounted in the same media. The Govt. kept silent, keeping in view that eminent and elderly persons need not be offended by issuing rejoinders. Apparently consideration, courtesy and good behavior has been mistaken for weakness, indecisiveness and inept functioning by Govt.JS (B) in his first note described the Chairman's action of addressing the Solicitor General as unusual and so also marking his correspondence to the Division Bench of the Delhi High Court, presently hearing the case as unusual. I would term it unethical and improper, and reflects megalomaniac traits. I feel enough mischief and sabotage of the Satellite channels and national interests and pride has been place in the last few months .It is high time to put some stop to it. I agree with the Secy.'s proposal endorsing the Js (B) proposals in his second note seeking approval for rescinding of the Scheme of allotment of time slots notified as 28.9.1993.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .000 =Rs. 2,26,000 Standard license fee-50% discount on Operating Cost x 4+Uplink Cost= license fee for non-prime time slot.Rs. 54,000-Rs. 25,000==Rs. 28,560 or Rs. 30,000.00Rs. 1,20,000+Rs. 10.000=Rs. l,30,000.00"It will at once be noticed that the direct cost does not take into account the cost of the satellite. Mr. Solicitor General said that cost of satellite and its putting ill the orbit has been provided in the budget allocation, though not of the Ministry of Information and Broadcasting and that as the things stood this Ministry is not to pay to other department (Space) for utilising part of the capacity of the satellite. This appears to us to be rather odd. We desired to know whether payments were made by the Ministry to the Department of Space for the use of the transponders on the satellite were taken into account .The reply is as under :-"In this regard, it is submitted that presently no lease charges are payable for the transponders of the Indian satellites by the user Department since the funding for the satellites is being provided from the budget of the Department of Space as part of its R&D plan. If such lease charges become payable in the future, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptimum viewer ship. It was, Therefore, decided to fix the license fee on a conservative basis (based on incremental cost instead of total direct and indirect cost). (ii) When the privatization of the Metro Channel started on 26.1.1993, the license fee was fixed at Rs.80,000.00 per hour(that is standard license fee of Rs. 54,000 +50ø/o premium on the operating cost-Rs. 25,000). This was considered to be very high. Accordingly the license fee was reduced to Rs. 54,000.00 by removing the 50% premium on the operating cost. (iii) The license fee has been fixed for one year only and will be reviewed thereafter. (iv) The entire concept of the Satellite Channels is new and untested and a wide latitude ought to be given to the Government fixing the license fee." 34. Mr. Gupta, learned Solicitor General, also said that this scheme was only for interregnum period till the Ministry heard from the Prime Minister or any Cabinet decision was communicated to it. When there was a scheme for allotment to time on Metro Channel a high power committee had been constituted. This scheme which is far bigger in scope and intent also needed such a committee. The Minister in his note to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Central Government could not keep the Act in abeyance and not enforce it and proceed to take a decision of such a magnitude .He said when there was an explosion in the electronic media it was right time that an expert committee was constituted of experts from the law ,media, economics, culture, etc., presided over by a retired Judge of the High Court or the Supreme Court. Dr. Gupta said that consideration of revenue was of paramount importance and auction of time slot was the best method in the circumstances of the case. He also said any concept of prime time was not of much relevance. If a programme was good and shown evening the middle of night a person would get up and see the same and that would be the prime time. Dr. Gupta also referred to report of the Interdepartmental Committee on Introducing Competition in the Electronic Media called the Varadan Committee report and also to the scheme of allotment of air time on the metro channel of Doordarshan and All India Radio by the Air Time Committee of India (ATCI) also called the Deodhar Committee report referred to above. Dr. Gupta said there should be an Act, on the lines of the Broadcasting Act, 1990, of England. Then his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, and suggest to the Government the most suitable option (s)available for implementation of this scheme including the detailed parameters subject to which the telecasting/broadcasting rights could be offered to public corporations .The object for which this Varadan Committee was formed would certainly be relevant to an extent in the present case, though the Committee would appear to have been set up when it was proposed to offer the rights to public corporations. This Committee prefaced its report asunder:-"The announcement of Government's intention to offer broadcasting rights to suitable organisations in order to provide competition to the Government-owned T.V. and Radio channels and, thereby offer more choice to the listeners/viewers marked a major change in the broadcasting policy of the Government. This naturally gave rise to a lot of lively interest in the country on the practical possibilities of such a change. Some individuals and organisations also responded in writing showing their interest in and willingness for running new channels. At the same time, some intellectuals and media experts also cautioned the Government against the dangers to the country of indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation to be known an Prasar Bharati (Broadcasting Corporation of India). It gives the functions and powers of the Corporation so established. The Solicitor General said that the present scheme was broadly in consonance with this Act and that Varadan Committee was an inter-departmental committee and suggestions were not binding on the Central Government and Act was constituted when the Government had no scheme to introduce satellite channels and its functions related merely to metro channel. But then both these reports certainly have relevance to the scheme now formulated for award of time slots to private persons. As to the position in other countries, learned Solicitor General said that it was not necessary to deal with those provisions and that because an issue had been dealt with in a particular manner in one country did not mean that the manner in which another country dealt with the same issue was arbitrary. Thus, what is the experience of other countries, according to the respondents, is of no relevance to them. In the discussions in the Ministry which have been reflected in the notes which we have quoted in extenso, for bringing into operation the scheme in question, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second schedule to the Rules. Doordarshan is one of the attached and subordinate organisations in the Ministry of Information and Broadcasting. Admittedly, the satellite does not belong to this Ministry ,but the schema for its five channels envisages use of the satellite. Under Rule 4of the Government of India (Transaction of Business) Rules, 1961, also framed under Clause (3) of Article 77 of the Constitution, when the subject of a case concerns more than one department, no order be issued until all such departments have concurred, or, failing such concurrence, a decision there on has been taken by or under the authority of the Cabinet. There is no mention in the files shown to us or in the counter-affidavit filed by the respondents that the Department of Space has concurred in the use of its satellite by the Ministry of Information and Broadcasting. Sub-rule (3) of this Rule 4 provides that Ministry of Law shall be consulted on - (a)proposals for legislation; (b) the making of rules and orders of a general character in the exercise of a statutory power conferred on the Government; and (c) the preparation of important contracts to be entered into by the Government. Again n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the contract to be entered into with the prospective allottee. The provisions of Clause (c) of Sub-rule (3) of Rule 4 of the Government of India (Transaction of Business) Rules which require consultation with the Ministry of Law on the preparation of important contracts, to be entered into by the Government are mandatory and these provisions have been violated by the Ministry. The scheme must fail on that account. During the course of arguments, and as we earlier noted more than once, we were told by the learned Solicitor General that the scheme framed was only for an interregnum period till a policy was formulated by the Cabinet. We really wonder what an effort has been gone into to introduce this scheme only for an interregnum period which we have not been told how long it will last .We do appreciate, however, the stand of the respondents that it is left to the Cabinet to take the decision on the question of allotment of time slots on satellite channels as this was done in the case of allotment of time slots on Metro Channel for the earlier scheme. 40. Again during the course of arguments we had occasion to examine the scheme as informed to the public by means of public notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree methods of choice were :(1) F.C.F.S., or (2) at random among the applicants, or (3) by auction. We believe when the words "at random among the applicants" are used reference is to random number generation. Respondents say that F.C.F.S. had been successfully tried earlier by the Government and governmental agencies in the past. Doordarshan and All India Radio had also successfully used the-first-come-first-served basis for allotment of time slots on Metro and FM Channels. It is stated that in January 1993 under the scheme for metro channel Doordarshan had received over 300 applications and time slots were allotted on F.C.F.S. basis. Before we examine the three methods of choice we may note that under the scheme an applicant is required to indicate the number of slots applied for as well as three preferences for the time desired. The applications are to be received in sequence and the divided into four groups ,depending upon the number of time slots applied for. Each group is then to be considered separately and applications accepted for the time applied for, it available, in the order of preference indication. If none of the time preferences applied for are vacant, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and tremendous and the Ministry was still not considering this method that would again be an act of unreasonableness at the cost of public revenue. This method is now sought to be given a go-by on a spacious plea that every half-an-hour slot will have to be considered separately for auction. When the channels are to be privatized in the sense that time slots are to be allotted to the public, and there is no preselection and no other pre-selection criteria, the idea of getting maximum revenue could not have escaped the minds of the respondents. Yet we find in the notes in the file there was no such discussion. In the present situation, perhaps the auction was one of the best methods to be considered for allotment of slots. The learned Solicitor General said it was no function of the Court to suggest which method for allotment of time slots was more appropriate. Mr. Ashok Desai, appearing for petitioner in writ petition filed by Home Communication Network Limited (CWP No. 3104/93) referred to certain observations of Frankfurter J. In Liyod Morey v. George v. Doud, 1957 (354)US 457, saying that "the Courts have only the power to destroy, not to reconstruct .Reference was also m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot; in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which be 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 may be something so absurd that no sensible person could ever dream that it lay within the powers of authority. Warrington L.J. in Short v. Poole Corporation ,(1926) Ch. 66. gave the example of there haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another." 46. Mr. Desai said that this principle of wednesbury unreasonableness had been approved by the Supreme Court in G B. MahaJon's case AIR1991SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven RNG method could not have been chosen that way. Action of the respondents had to be transparent in selecting the basis of allotment which is not so here. We are not impressed with the arguments of the learned Solicitor General that first come first served method is there for buying railway tickets, sports events, cinema shows, school admissions ,etc. He said people stand in queue before a store many days in advance to buy a thing at bargain price. The approach to the problem itself is wrong and instances inappropriate. Where a person does not get the ticket it affects him personally. If he cannot go by a train on a particular day ,he can go on a following day. If he does not get admission in one school of his choice he may be disappointed or even get admission in other school ,or he may face disappointment when he does not get ticket to watch a certain sports event. He can go for another show if he cannot get a ticket for a particular cinema show. Also the thing a person wanted to buy at a store at a particular bargain price, be can get that very thing from another store though paying a little extra. Here the relationship of licensor and licensee between the Govt. and the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But here the case is different .By themselves watching the subsequent events the respondents changed its policy. These events also informed the respondents of tremendous response of the public to the scheme. When those events still existed the respondents again went back to its original policy putting a question mark on their conduct. Arbitrariness and non-application of mind its writ large on the face of it. When a policy is framed it should be kept in mind as to how best it can be implemented. A public body cannot close its mind to the consequences that may result in enforcing a scheme. Respondents here have not acted reasonably. 48. Mr. Raj Birbal appearing for Bennett, Coleman & Co. Limited(CWP No. 3248/93) stressed that eligibility criteria as laid down in the scheme of allotment of time slots on metro channels of Doordarshan annexed with the public notice dated 28/09/1992 could not be given a go-by in the present scheme when the earlier scheme had the backing was no eligibility criteria and no track record to be seen while allotting a timeslot, but the track record of the licensees in terms of quality of their programmes was to form essential criteria for considering the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s envisaged will result in black marketing of time slots by unscrupulous licensees which will be at the cost of the public revenue as well as sufferings of the viewers. Mr. Sibal said that the present policy was unconstitutional because treated unequal equally, was against public policy, ignored merit and did not formulate any eligibility criteria and had no rational nexus with the objects sought to be achieved, i.e. to meet the challenge of foreign channels beaming their programmes in the country and the scheme tended to create monopoly in the hands of few. The policy sought be implemented ,he said, did not take in account that the nature of commodity to be distributed and its possible impact on the general public. He said the scheme was also bad because it allowed an individual or entity to block the entire channel by securing the Govt. with a bank guarantee of Rs. 10 lakhs. It was also bad because different companies with common directors could bold half-hour slots and exceed the maximum available time of one-hour slot to one entity. The policy as it stands promotes trafficking in licenses and fails to address itself to the consequences and the policy to be adopted in the event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be able to recouped the share of the contribution of the employee. The Court said that the scheme operated unfairly and harshly on persons who employed contract labour and that if further resulted in discrimination between those who employed contract labour and those who employed direct labour. the Court, Therefore, held that the scheme could not be said to be reasonable and must be struck down as not falling within the protection afforded by Clause(6) Article 19, and infringing the right of the petitioner under Article 19(i)(g) of the Constitution. We do not think this decision has any direct application to the issues involved in the present case. 50. Mr. Sibal then said F.C.F.S. was also arbitrary on the ground that the persons living in far off places in the country were put to disadvantage as under the scheme they had to present their applications in person. He said a man with resources could employ three sentries to give eight-hours duty with three shifts outside the Doordarshan office for forming queue one month in advance and meet their expenses. Other persons may not be in that position and may not be also in a position to stand in queue for such along period. He said only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own by the A.T.C.I. were kept aside and so also the eligibility criteria. There have to be controls on the qualitative aspects of the programmes which the applicants seek to telecast, a media which was most powerful and effective for dissipating knowledge and information. Mr. Jaitley said laying of qualifications for selecting the prospective licensees was must. He said the credibility of Doordarshan programme has already declined to abysmal depth and any uncheck grant of licenses would only aggravate the situation. We do not think Mr. Jaitley is right here. As noted above, it is only the best programme which would survive and will generate revenue for the, licensees by getting more advertisements. Guidelines are laid in the scheme and, as noted above, there are checks and controls which will motivate the licensee to come out with best possible programme and any deviation from the right path will expose him to a great risk. Mr. Jaitley also said that random number generation method may be good but still a minimum criteria was necessary. He conceded that it was not for the Court to reframe the policy. Mr. Jaitley said that right to knowledge is inherent in Article 19(1)(a) and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rantee. He is required to make advance payments every week. The responsibility of exploitation of commercial time is entirely his own. He will have to attract sponsors and advertisers to cover his cost sand the fees. A low grade or mediocre production will almost necessarily have poor viewer ship and will not be able to exploit the commercial time. Thus only attractive viewer acceptable programmes will survive. The Scheme will ensure good quality viewer acceptable programmes. The viewer and viewer alone will be the ultimate judge. The method of selection is, it is respectfully submitted , reasonable. "In short, the respondents contend it is a case of survival of the fittest with over 100 satellite channels crowding the Indian skies in very near future. Respondents are right when they say that howsoever chosen, a tremendous amount of flexibility should be available to a licensee. The programmes need not be based on the personal artistic talents of the licensee. The licensee an engage directors, actors, actresses and programme presenters. Such persons are not likely to be permanent employees of any person or organisation. He can engage another person to make the programme for hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secured fifth position in the queue for submitting application and entered into diverse arrangement/agreement with Indian and foreign parties with respect to the programming to be broadcast. Petitioner in this case further says that it made huge financial commitments to the tune of Rs. 2.78 crores in respect of the entertainment channel and already incurred an expense of about Rs. 17 lakhs in connection with the Metro Channel. We do not think that on such averments any case of promissory estoppel or legitimate expectation is made out .Only two documents being the letters dated 25/06/1993 and 2 9/06/1993 of M/s. Buna Vosta International Inc., a foreign company, and addressed to the petitioner have been brought on record. These two letters are after the date of the queue which was stated to have been formed outside the office of Doordarshan on 23/06/1993. These two letters speak of possibility of entering into certain arrangements/agreements to acquire programming from among the feature films and television series that will serve the audiences in media. But for these two letters there is nothing on record to support what the petitioner contends. We also do not know these two letters ..... X X X X Extracts X X X X X X X X Extracts X X X X
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