D. P. Wadhwa ( 1 ) ALL these petitions have been beard together,as same questions either in, support or against the scheme for allotment oftime slots on satellite channels of Doordarshan arise therein. Pleadings are, however, complete in C. W. P. 3248/93 filed by Bannett, Coleman and Co. Limited which we will generally refer to in the course of this judgment. ( 2 ) CIVIL Writ Petition No. 3104/93 was filed by Home Communication Network Ltd. and another in 6/07/1993. In this a restraint order is sought on the respondents not to deviate from the basis of first come first served (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" forpreferential allotment of time slots to different class of applicants on FCFSbasis, 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 licences for time slots to "eligibleapplicants" on satellite channels. And lastly, a direction to the respondentsto lay down the eligibility criteria for interested applicants seeking licencesfor transmitting programmes on satellite and metro channels. Other fivewrit petitions (CWP No. 3248/93 by Bennett, Coleman and Co Ltd. ; CWPNo. 3275/93 by Hindustan Times Ltd. ; CWP No. 3370/93 by Vijay Malhotraof Sri Productions : CWP 3376/93 by Indus Television : and CWP 3402/93by Indian Express Newspapers (Bombay) Ltd. were filed later in the secondand third week of July 1993. In these five petitions the principal prayersare that the criteria of F. C. F. S. basis for allotment of time slots be quashedand that a proper eligibility criteria be laid for allotment of time slots takinginto account the experience, the track record, the financial backing as wellas quality of product produced by the applicants. In one of these petitionsthere is also a prayer that a direction be issued to the respondents not tomake allotment on the basis of Random Number Generation method ( rng for short) and to formulate a fair, reasonable and just scheme for thepurpose. In one of these petitionsthere is also a prayer that a direction be issued to the respondents not tomake allotment on the basis of Random Number Generation method ( rng for short) and to formulate a fair, reasonable and just scheme for thepurpose. The respondents are : Director General, Doordarsban ; Union ofindia through the Secretary in the Ministry of Information and Broadcasting; and the Deputy Director General, Satellite Channels, Doordarshan. ( 3 ) THE immediate cause for filing these writ petitions was thatthough under the scheme the date for receiving the applications for allotment of time slots on satellite channels of Doordarshan was 5/07/1993 butthe queue outside the office of Doordarshan started forming on 23/06/1993 itself. The basis of allotment at that time was FCFS. ( 4 ) DOORDARSHAN is a department of the Central Government underthe charge of the Director General in the Ministry of Information andbroadcasting for television broadcasting and has no independent entity of itsown. ( 5 ) THE scheme in question had been formulated in pursuance of, aswould appear) a policy decision of the Central Government that licences begranted to private producers for showing their programmes on televisionfor general reception in the country, telecasting to be done by Doordarshanthrough satellite. This way the respondents also endeavoured to earnmaximum revenue for the country. The scheme, it has been contended bythe respondents, does not pertain to the Prime Channel of Doordarshan, oreven to the Metro Channel, i. e. , the second channel in the four metropolisof Delhi. Bombay, Calcutta and Madras when for some time in a day themetro Channel is not linked with satellite. Except for this, programmeson the Entertainment Channel on the satellite can also be seen on the Metrochannel. ( 6 ) THE scheme thus now framed is in pursuance of decision of thecentral Government to introduce five satellite based channels includingmetro channel which, under a different scheme, had already commencedsatellite telecast from 1/04/1993. THOUGH there is challenge to whole of the scheme as such, but theprincipal challenge is two fold : (1) The basis of FCFS and even of RNG isillegal and arbitrary. With this is also attached the question of earning ofmore public revenue by the Central Government, and (2) the eligibilitycriteria. Should it be there or not, and if so, in what form ? With this is also attached the question of earning ofmore public revenue by the Central Government, and (2) the eligibilitycriteria. 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 ofatci covered allotment of time slots on five satellite channels under thescheme. ( 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, theapplications were to be received as from 5/07/1993 onwards on FCESbasis and since the scheme is on FCFS basis all applications were required tobe submitted in person or through a designated representative. This led toformation of queue outside the office of the Doordarshan as from 23/06/1993 itself threatening to create a law and order problem. A suit was filedon 2/07/1993 in the Court of the District Judge, Delhi, by Bennett,coleman and Co. Ltd. praying for a direction to the Delhi Police to removethe que formed outside the office of Doordarshan which was alleged to haveblocked the entry to the gate of the Doordarshan and providing policeprotection to the plaintiff for its ingress and egress to the office ofdoordarshan (Satellite Channel) at Tolstoy Marg, New Delhi. In this theadditional District Judge on the following day, i. e. . 3/07/1993, directedto remove the persons "who have made up the queue in front of the gate ofthe said premises and are causing blockage to the entry of the other personsto the office. . . . . . " ( 10 ) ON 3/07/1993 the Central Government by a public noticeadvised all concerned that receipt of applications on F. C. F. S. basis on 5/07/1993 stood postponed and the allotment in future would be done throughrandom number generation method through a computer. A fresh date wasto be notified separately for receipt of the applications. . . . . " ( 10 ) ON 3/07/1993 the Central Government by a public noticeadvised all concerned that receipt of applications on F. C. F. S. basis on 5/07/1993 stood postponed and the allotment in future would be done throughrandom number generation method through a computer. A fresh date wasto be notified separately for receipt of the applications. This, it wouldappear, led to filing a civil suit (Suit No. 1395/93) on the original side ofthis Court by plaintiffs numbering five and against three respondents, namelydirector for General, Commissioner of Police, Delhi, and Union of Indiain the Ministry of Information and Broadcasting. These five plaintiffs were (1) Octave Communications Pvt. Ltd. , (2) United Television, (3) New Delhitelevision Pvt. Ltd. (4) Nimbus Sports and Communications Pvt. Ltd. , and (5) Samrat Video Vision Pvt. Ltd. The plaint was signed and verified on 3/07/1993 and was presented at the residence of Justice Arun Kumar at10. 00 a. m. on 4/07/1993 which was a Sunday. The plaintiffs prayed for : (A) A decree for declaration holding and declaring that the timeslot allotment scheme introduced for the metro channels bydoordarshan should continue to be based on a first come firstserved basis and that the random number allotment is illegaland void. (B) An order for permanent injunction restraining the defendantsor any of their officers, servants and agents from disrupting orin a-ny other way disturbing the structure, sequence or arrangeent of the queue which has been formed outside the premisesof Doordarshan, 4 Tolstoy Marg, New Delhi, ever since the 23/06/1993 and further from adopting any scheme forallotment which is country to the defendants published guidelines for time slot allotment as contained in their bookletmarked a . (C) An order for mandatory injunction directing the defendants toreconstitute the queue if forcibly broken by the time this petition is heard by this Hon ble Court in accordance with theregister maintained by the members of the queue. An application was also filed along with the suit seeking certain interimorders. The Court passed the following order on 4/07/1993 :suit No. 1395/93 andi. A. Nos. /93 : (to be registered)Counsel for the plaintiffs undertakes to pay the requisite Courtfee by 6/07/1993. Let the Suit and the Applications be registered. Summons inthe Suit and Notices in the Applications to issus to the Defendantsfor6tlijulyl993. Dasti. The Court passed the following order on 4/07/1993 :suit No. 1395/93 andi. A. Nos. /93 : (to be registered)Counsel for the plaintiffs undertakes to pay the requisite Courtfee by 6/07/1993. Let the Suit and the Applications be registered. Summons inthe Suit and Notices in the Applications to issus to the Defendantsfor6tlijulyl993. Dasti. It is stated that Defendant No. 1 has circulated anotherscheme for allocation of time slots on five new channels. Accordingto the new scheme the applications are to bs accepted with effectfrom 9/07/1993. The question really is as to whether Defendantno. 1 is entitled to change the Scheme which had already beenannounced and allegedly acted upon by various applicants. Therefore, notice in the interim applications has been issued for 6/07/1993. IN the meanwhile, I appoint Shri C. S. Rawat, Deputy Registrarof this Court, to verify the position of the queue at the site andreport about the sequence in which the parties have formed thequeue. The Plaintiffs have filed a list of Applicants who are forming the queue at present on record. Shri Rawat will verify thequeue which is stated to be in existence with particular reference tothe said list. Mr. Rawat will act and carry out this assignmenttoday itself in view of the urgency of the matter. In case Policeassistance is required to carry out this assignment. Shri Rawat willbe entitled to seek the same and the S. H. O. of the area concernedwill provide all the necessary assistance. The fee of Shri Rawat istentatively fixed at Rs. 3,000. 00. " ( 11 ) IT is unnecessary for us to go into the question of the correctness of the report of the Local Commissioner or the register as that issue does not pertain to us in this petition. ( 12 ) EARLIER to the present impugned scheme there was a "scheme ofallotment of Time Slots on the Metro Channels of Doordarshan and FMChannels of All India Radio in Delhi, Bombay, Madras and Calcutta" asper Annexure to the public notice No. 8/l/i992-PBC dated 28/09/1992 issued by the Ministry of Information and Broadcasting ( ministry forshort ). Government of India, notifying the scheme. Under this scheme abroadcasting Council now known as Air Time Committee of India a. I. C. I. for short) was to be formed comprising a Chairman and eight other membersto be appointed by the Central Government by issue of notification in theofficial Gazette. Government of India, notifying the scheme. Under this scheme abroadcasting Council now known as Air Time Committee of India a. I. C. I. for short) was to be formed comprising a Chairman and eight other membersto be appointed by the Central Government by issue of notification in theofficial Gazette. The Chairman was to be a person of stature and eminence,and ex-officio members were to be Engineer-in-Chief Doordarshan/aii Indiaradio and a representative of the Ministry, and other members were to bedrawn from amongst media persons, authors, playwrights, performing artistsand film personalities of stature and eminence with knowledge and expertiseof electronic media. The A. T. C. L. was to have a tenure of three years. Terms and conditions of the members were prescribed and so also thefunctions to be performed by the A. T. C. L. The Government was also tohave powers to issue instructions and lay down policy guidelines. Thescheme prescribed the eligibility criteria for the licensees. The A. T. C. I. wasto invite applications for allotment of time slots on metro channels and thento 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 stipulatedtechnical parameters for ensuring national radio frequency management. The scheme also laid down guidelines governing the programmes. Thea. T. C. I. was enjoined to periodically review the programmes put out by thelicensees andalso to redress the grievances of individual or institutionagainst any particular programme. The A. T. C. I. was empowered to suspendand revoke the licence and also to renew the licence. In the event of waror natural calamity the Government might, in public interest, take over thecontrol and/or management of all broadcasting under the licences issuedunder the Scheme. The licence fee was to be fixed by the Government andit was the Governmant to give the interpretation if there was any doubtregarding any provision of the scheme. One of the eligibility criteria for thelicence under the scheme was that applicants should have proven trackrecord in producing television/radio programmes, feature films, video films,video magazines, documentaries etc. By another public notice dated 14/10/1992, the A. T. C. I. was constituted with Mr. P. S. Deodhar aschairman. ( 13 ) AS to how much licence fee was to be charged, the matter wasdealt in the Ministry. Mr. K. . P. Pandian, Deputy Secretary (Finance),recorded a note on 29/03/1993 after his discussion with Mr. Deodbar. By another public notice dated 14/10/1992, the A. T. C. I. was constituted with Mr. P. S. Deodhar aschairman. ( 13 ) AS to how much licence fee was to be charged, the matter wasdealt in the Ministry. Mr. K. . P. Pandian, Deputy Secretary (Finance),recorded a note on 29/03/1993 after his discussion with Mr. Deodbar. He recorded that there was difference between the proposal of Mr. Deodharand the rates as worked out by the Finance Wing. Mr. Deodhar, it appears,wanted to reduce the rates. Then the next note is of Mr. S. C. Mahalik. Additional Secretary and Financial Adviser, dated 30/03/1993. He notedthat the difference in the licence fee suggested by the Ministry and thea. T. C. I in respect of non-prime time was narrow and that the differencewas only Rs. 5,000. 00 for 1/2 hour per metro. He noted the real differencelay in the Prime Time rates where the A. T. C. I. was proposing Rs. 40. 000. 00for 1/2 hour per metro and the Ministry was proposing Rs. 80,000. 00 for 1/2hour per metro. Mr. Mahalik recorded that it was generally agreed thatthe Prime Time slots would be utilised for film and film-based programmes,sitcoms and scaps, which would have the capacity to garner advertisementat very high rates and thus pay the licence fee proposed by the Ministry. He said that but under the garb of promoting cultural-social programmes,which would really go in the non-prime time, the A. T. C. I. was trying tokeep a lower rate of licence fee for the Prime Time and this appeared to bean irreconciliable difference. The Secretary in the Ministry agreed, and thenthe matter went to the Minister. He wanted that matter be discussed andrecorded that note did not indicate any course of action. This was on 31/03/1993. Then after the discussion, the following decision was stated tohave been arrived at on 6/04/1993 : (I) There would be a categorisation of time on the Metro Channelas follows: (A) Prime Time : 7. 30 p. m. to 10 00 p. m on week days and6. 30p. m,to 11. 30 p. m. on Saturdays andsundays. (B) Non-Prime Time : 6. 30 p. m. to 7. 30 p. m. and 10. 00 p. m. to 11. 30 p. m. on week days. HOWEVER, film and film-based programmes would be consideredas Prime Time telecast irrespective of the hour on all days. 30p. m,to 11. 30 p. m. on Saturdays andsundays. (B) Non-Prime Time : 6. 30 p. m. to 7. 30 p. m. and 10. 00 p. m. to 11. 30 p. m. on week days. HOWEVER, film and film-based programmes would be consideredas Prime Time telecast irrespective of the hour on all days. (II) The rate of telecast for 1/2 hour on a single metro basis willbe Rs. 54,000. 00 for Prime Time and Rs. 30,000. 00 for Non-Prime Time. Additional uplink charge will be Rs. 10,000. 00per I /2 hour. The above rates will be reviewed after a periodof one year. " IT was clarified that the rates stated above would be applicable for themetro channel which will have terrestrial distribution in the four metro cities,in respect of pure Satellite Channels without any terrestrial distributionthrough transmitters, the rates will be Rs. 10,000. 00 for 1/2 hour except in thecase of the Sports Channel where it will be Rs. 3,000 -per 1/2 hour. Theabove rates were also to be reviewed after a period of one year. This wasfinally approved by the Minister on 10/04/1993. ( 14 ) IT would appear that in the meanwhile, the Minister made astatement in the Parliament on 24/03/1993 regarding starting of additional satellite channels on Doordarshan by utilising spare capacity on thetransponders of INSAT-ID and INSAT-IIA. The modalities of allotingtime on these two new channels were stated to have been deliberated at agreat length in the series of meetings taken by the Secretary. In his notedated 13/04/1993 sent to the Prime Minister, the Minister gave the resumeof the formation of A. T. C. I. , the scheme for allotment of time slots onsecond channel (Metro Channel) of Doordarshan and proposal to startadditional satellite channels from I May 1993. The Minister said that therole of A. T. C. I. in the changed scenario had been reviewed and it was feltthat an essential pre-requisite for the success of the new venture would be tokeep the satellite channels outside the purview of Doordarshan enabling itto concentrate on the efficient functioning of the primary channel. He saidthat it was the considered view of his Ministry that the task of handling thesecond channel and the satellite channels must be done by a common body. He said a number of alternatives were examined in the connection which henoted in his note. He saidthat it was the considered view of his Ministry that the task of handling thesecond channel and the satellite channels must be done by a common body. He said a number of alternatives were examined in the connection which henoted in his note. It is not necessary to set out all the alternativesexcept to note Alternetive-4 which is as under :-"alternative-4pending establishment of a new company which may take sometime, NFDC can be entrusted with the management of the newchannels by earmarking its existing staff for a new Televisiondivision. The Memorandom of Association of the NFDC underthe hearing Distribution and Exhibition reads as under ;-Distribution : To carry on in India or elsewhere the businessof distribution of films whether made in India or imported fromabroad. ""exhibition : To exhibit films either directly or through otheragencies. "films include TV and video films too. It is possible to cover the new activity under these two Clauses of thememorandom of Association. After decana1isation of the importand export of films NFDC work has reduced. Very little incremental expenditure on staff will be required. Also, as a company,it can hire equipment like uplink station, pay lease charges of thespace segment from outside authority arid can even set up uplinkequipment on its own. Then this note ends with the following observations of the Minister :-"5. This Ministry is in favour of adopting the course ofaction suggested in alternative-4. Once this is approved, the Schemenotified in September 1992 would be amended to replace the ATCIwith the Board of NFDC. The Board itself would be reorganisedby including suitable number of television professionals. In theinterregnum, the management of the channels would continue to behandled through Doordarshan with suitable consultants employedfor this purpose. 6. The course of action proposed in the preceding paragraphis submitted for Prime Minister s information and guidance. " ( 15 ) IT is for this interregnum period that the present impugned schemeis stated to have been introduced. As to how this took shape we might startwith 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 onsatellite channels have been framed in a manner similar to that adopted whileallotting time slots in the metro hour introduced from 26/01/1993. Thenthe silient features of the scheme are recorded. Sanjiv Datta, Deputy Secretary (BP ). It records that terms and conditions for the allotment of time slots onsatellite channels have been framed in a manner similar to that adopted whileallotting time slots in the metro hour introduced from 26/01/1993. Thenthe silient features of the scheme are recorded. Mode of selection prescribedis : "first-come first-served basis subject to a graded preference linked to thenumber of days/weeks for which time slots applied for". Each applicantwould be eligible for four half an hour slots per day, and in respect of filmsallottees entitled to one film slot per day. Then the note describes theadvertisement time, licence fee and as to bow the-same is to be paid, thebank guarantee and the processing fee. Public notice is proposed to beissued 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 ofapplications would commence from 7/05/1993 onwards and each applicantwould be given three months time for preparation of programme. Producerswould, however, be allowed to commence telecast immediately or before thethree months. The programmes would not be perviewed but would have toadhere to the provisions of the AIR Broadcast Code, Advertising Codes of Doordarshan, Cinematograph Act, Copyright Act and other relevant laws ofthe land. The Secretary approves the note and then the Minister records on 19/04/1994, itself as under :-"what about the notice of the metro channel as per Air Timecommittee recommendations ? Those may be pot up. When arethey going to be published ?"on 28-4-1993, Mr. Sanjiv Datta again records that copy of the communication received from the Cabinet Secretariat indicated that the entire gamutof the satellite channels etc. was required to be discussed by the Core Groupon Media which was chaired by the Cabinet Secretary in its next meetingscheduled to be held on 30/04/1993. It was, therefore, mentioned that inthis view of the matter the Minister may approve the publishing of the document being one prepared by Mr. Deodhar and as subsequently edited in thelight of the agreement reached in the meeting taken by the Minister on 22/03/1993, he deferred til! the results of the deliberations by the Coregroup on Media become known. It was explained that discussion of thecore Group on Media pertained to the four long term alternatives suggestedin the note sent by the Minister to the Prime Minister. Then the next relevant note is dated 14/05/1993 again of Mr. the results of the deliberations by the Coregroup on Media become known. It was explained that discussion of thecore Group on Media pertained to the four long term alternatives suggestedin the note sent by the Minister to the Prime Minister. Then the next relevant note is dated 14/05/1993 again of Mr. Datta where he records thatthe document received from the ATCI incorporating all the amendmentagreed upon in the meeting taken by the Minister on 22/03/1993 hadbeen got printed and a copy was placed in the file. On this the Ministerrecords: "please give wide publicity to A TCI through electronic and printmedia. " The file is marked back to the Secretary who then notes as under :--"may kindly refer to his orders. On going through the files itis seen that Shri Deodhar in his letter dated 29-1-93 bad enclosedthis document detailing the manner in which the allotment of timeslots on the Metro/fm channels of DD/air was proposed to bedone, had asked that the said document be got printed and available to the applicants along with the application form. In otherwords, the document was meant only for the applicants. Since there are no applicants and the application from has notbeen finalised we may not be able to give it away. The documenthas been printed. We may, therefore, go ahead and allow D. D. to notify thedetails of application, terms, etc. for the three channels now. Sd/-14-5-93" ( 16 ) WHEN the first noting in the file (F. No. 8-4-93-PBC) started itwas mentioned that there satellite channels will start functioning as from 15/05/1993 and these were the entertainment channel, sports channel, andbusiness news and current affairs channel. The ether two channels enrichment channel and mislic 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 thefollowing day, i. e. , 15/05/1993. the Minister agrees that public noticeshould issue only on I June, 1993 and in the meanwhile publicity should begiven to the printing of the document received from the ATCI incorporatingthe agreements reached in the meeting taken by the Minister on 22/03/1993. The public notice is published thus with the approval of thegovernment and it will be necessary to refer the same in some what detail. The public notice is published thus with the approval of thegovernment and it will be necessary to refer the same in some what detail. ( 17 ) BEFORE this public notice is published on I June, 1993 Mr. Dattarecords a note on 31/05/1993 and the draft public notice was again submitted to the Minister for his approval. This note is then marked to theadditional Secretary who records as under :-"2. MIB discussed the draft Public Notice for the satellitechannles of Doordarshan this morning with Secretary when AS andfa, As and the undersigned were also present. 3. In so far as the preference for allotment was concernedit was clarified by Secretary that considering the large amount oftims slots (half an hour) that would become available on thesechannels, it would be extremely difficult for any single party tocorner an exceptionally large chunk of time. Moreover, the restriction of two time slots of half an hour per applicants per weekduring the prime time would also enable a broadcasing of thelicensees on these channels. (Para 9. 2)4. As regards the setting aside of time slots for young talentwas concerned, it was clarified that the same could either be deneby reserving certain specific time slots for such producers or allotingtime on the entertainment channel to NFDC for this purpose. Accordingly, the following provision is being made in the draftpublic Notice (para 10. 3) :a one hour time chunk in the morning transmission of theentertainment channel on every Saturday would be utilised forencouraging young talent. The details in this regard would beannounced later. 5. In so far as the question of the Appellate Authority wasconcerned, the provision in para 15. 1 of the draft Public Notice hasbeen amplified in the following manner , government also reserves the right to set up a separate bodyfor this purpose. 7. The draft Public Notice is submitted for MIB s kindapproval. "on this the Additional Secretary and Financial Adviser records as under ;-"air Time Committee of India, which is not yet defunct, was toinvite applications for allotment of time slots on the metro channelof Doordarshan and FM Channels of AIR w. e. f. 15th Auguit, 1993. In view of this, it does not appear consistent that time slots on theentertainment Channel (erstwhile Metro Channel) can be allottedby the Government or Doordarshan bypassing ATCI unless a formal dissolution of ATCI is notified. In view of this, it does not appear consistent that time slots on theentertainment Channel (erstwhile Metro Channel) can be allottedby the Government or Doordarshan bypassing ATCI unless a formal dissolution of ATCI is notified. The other channels can however be operated by the Government outside the ambits of ATCI. This may perhaps be taken into account before finalising the Publicnotice. "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 anydecisions. As and when the ATCI or another organisation takesits place the channel can be operated by it if Govt. so decides. Basically the channels belong to Doordarsban and all transpondershave been allotted in its name. As such they have the right toope rate them unless the Govt. specifies any other body. There isalso a financial loss to the Government by not operating the channels-not to talk of permitting the foreign TV networks Star, Zeeand ATN to take money away from the country. May kindly approve the notification to enable a timely startto the channels. Sd/-31/5/93"finally the Minister records as under :"reservations for young talents could be made on all the otherchannels 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 schemewhich public notice has the sanction of the Government. Four new satellitebased channels are sought to be introduced in addition to the metro channelwhich already had commenced satellite telecast (from I April 199? ). Applications were to be available at various Doordarshan Centres from 15/06/1993. These applications were to be received in the Doordarsbanoffice of satellite channels at 4 Tolstoy Marg, New Delhi, from 5/07/1993onwards. There was to be no closing date. Applications would be receivedfrom 11. 00 a. m. to 2. 00 p. m. on all working days. The application wasto be accompanied with a bank guarantee of certain amount as mentionedin the public notice. Separate application was to be made for time slots oneach channel. Then the public notice describes five channels: (1) Entertainment Channel, (2) Sport Channel, (3) Business News ana Currentaffairs Channel, (4) Enrichment Channel, and (5) Music Channel. As towhat programmes are to be telecast on entertainment channel, the publicnotice gives no indication, but order respecting four channels it is mentionedas to what the programmes would be respecting these channels. Then the public notice describes five channels: (1) Entertainment Channel, (2) Sport Channel, (3) Business News ana Currentaffairs Channel, (4) Enrichment Channel, and (5) Music Channel. As towhat programmes are to be telecast on entertainment channel, the publicnotice gives no indication, but order respecting four channels it is mentionedas to what the programmes would be respecting these channels. We maynote, however, that enrichment channel is meant to provide an opportunityto independent producers, Govt. bodies and agencies and other interestedparties to produce programmes of general interest. Eligibility criteria forlicences, the allotment of time, and preference for allotment are mentionedin paras 3, 9 and 10 of the public notice which may be reproduced as under :3. Eligibility Criteria for Licenses3. 1. Parties interested in obtaining alicence under this Schemeshould meet the following criteria : (a) Should be a citizen of India for individual/company withmajority Indian shareholding/partnership form all of whosepartners are citizen of India. (b) Should not have been declared as insolvent or convicted in acriminal case. (c) Should produce sufficient evidence of sound financial standing. (d) Must confirm in writing, willingness to abide by the guidelinesspelt out in this scheme. (e) Should furnish a written undertaking to conform to all theconditions specified in the licence or any subsequent directiveof the Government. 3. 2. All applications would be received at the Doordarshan Officeof Satellite Channels located at 4, Tolstoy Marg, New Delhi-110001 from 5th July 1993 onwards. There is no closing date. Applications would be received at the above premises from 11. 00a. m. to 2. 00 p. m. only on all working days. Each applicant willbe given a computerised receipt giving all the details. At the timeof applying, each application must be accompanied with a Bankguarantee (as per specimen attached with the application form)equivalent to 10/o of the total licence fee payable but subject to aminimum sum of Rs. 50,000. 00 in case of entertainment channeland 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 perapplication, per channel would also be payable. A separateapplication must be made for time slots on each channel. 9. Allotment of Time9. 1. 50,000. 00 in case of entertainment channeland 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 perapplication, per channel would also be payable. A separateapplication 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 anhour each, 5-1/2 minutes of advertisement time will beavailablein each half-an-hour slot on each channel out of which 30 secondswill have to be used for social advertising and 30 seconds will beused by Doordarshan for cross channel promotion. Doordarshanwill, however, not pay any amount to the licensee for the utilisationof time for crosschannel promotion. 9. 2. Each producer can avail a maximum of2balf-an-hour timeslots per channel per week in prime time except in the case of: (i) Feature films where an allottee will be allowed to exceed thislimit, if required, to telecast a feature film in full. (ii) Any excess of half-an-hour will be reckoned as a unit of half-an-hour slot. 10. preference for Allotment10. 1. Allotment shall be made to the applicants on first come firstserved basis subject to the following preferences to the applicantsapplying for:non-PRIME TIME:1. All 365 days of the year. 2. All 182 days of the six months. 3. All 90 days of the three months. PRIME-TIME:1. Once a week for 52 weeks. 2. Once a week for 26 weeks. 3. Once a week for 13 weeks. 10. 2 First allotment of slots will be made after 7 days of the firstdate of receipt of applications. Subsequently, allotment will bemade on the first working day of every month for the applicationsreceived during the previous month. 10. 3 A one hour time chunk in the morning transmission of theentertainment channel on every Saturday and at an appropriatetime on the other channel would be utilised for encouraging youngtalent. The details in this regard would be announced later. ( 19 ) ON 3/07/1993 the Minister directed that schedule of receipt ofapplications on 5/07/1993 should be postponed and the allotment wouldbe done on a future date through random number generation throughcomputer. The details in this regard would be announced later. ( 19 ) ON 3/07/1993 the Minister directed that schedule of receipt ofapplications on 5/07/1993 should be postponed and the allotment wouldbe done on a future date through random number generation throughcomputer. This is how the note proceeds : The matter regarding the allotment of time slots on the metro (Entertainment) and other Satellite Channels was discussed in ameeting chaired by MIB today where Secretary, AS and FA, ASJS (P and F) and the undersigned were also present. 2. MIB referring to the various adverse comments beingmade in the press regarding the proposed selection of allottees onthe principle of first-come-first-served felt that the following aspectsneeded to be looked into in greater detail : (i) trading of timeslots, (ii) their usurpation for communal/anti national/undesirabispurpose, (iii) formation of cartels/mafias, (iv) need for transparency and fairness of the entire operation, and (v) prevention ofallotment through proxy. The suggestion made by Shri Sureshpachauri, MP in the meeting of the consultative committee for areview of the announced system of allotment which found generalsupport from the other members was also mentioned by MIB. 3. Keeping the above factors in mind along with the delay inthe launch of INSAT 2b by a fortnight it was agreed that thescheduled receipt of application on 5. 7. 1993 should bepostponedand the allotment done at a future date through random numbergeneration through a computer. 4. A note from MIB to the Prime Minister in the matter isplaced 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 hadnot been seen by the Secretary and the file did not come to the Ministerthrough him. Nevertheless, the Minister could and did take the decisionand that decision is of the Government. ( 21 ) THEN it would appear that a new file or part file in the Ministeris opened on the same day, i. e. , 3/07/1993, and starts with the followingnote of the P. S. to the Minister and then the Minister sends this note to thesecretary for comments. This is how the file begins :mib s OFFICEMIB desires to know as to what line of action is being contemplated regarding the press reports of 3/07/1993 whichalleges malpractices pertaining to Doordarshan channel forms,queue etc. This is how the file begins :mib s OFFICEMIB desires to know as to what line of action is being contemplated regarding the press reports of 3/07/1993 whichalleges malpractices pertaining to Doordarshan channel forms,queue etc. MIB further desires that inview of the above development, theprogramme could perhaps be postponed by one month i. e. , insteadof 5/07/1993, the date of submission of channel forms couldperhaps be Thrusday, 5/08/1993. Sd/- (Abhijit Bhattacharyya)PS to MIB3. 7. 93mibmay put up comments. Sd/- (K. P. Singh Deo)3. 7. 93secythe above two notes of the P. S. to the Minister and the Ministerhimself are typed written. Then on this the Secretary records his note inhis own hand and sends the same to the Minister, and again the Ministeralso records his note in his own hand. Both these notes are as follows: "when the Metro Channel was hatroduced on January 26, 1993 similar allegations were made in newspapers. They accused Doordarshan of favouritism. When no one came up initially amongst those who were registered in the beginning it was commented upon that at least Doordarshan had no favourites. In the instant case we have no knowledge as to who is applying except for newspaper reporte. It is a question of believing the newspapers without any evidence. For all we know the best of the producers may have applied. 2. When the time slots are sold whether by first-come-first-served basis or by other means any party can apply for any number of slots except when we restrict as we have done in prime time. If parties form cartels it will still remain whether it is by random number generation or by taking in open tenders parties have formed cartels. In the instant case I would like to submit that we are not paying anything to the parties instead we are receiving money. The same newspapers are saying that our charges are very high. If it is so how will people benefit by taking time slots. They have to give bank guarantees and make payments one week before the programme can be shown. It is also a little difficult to appreciate that a sponsor will be willing to invest in a programme without seeing. The advertising agencies who have to give money will have to make sure that the programme will ensure viewership. It is in this context that the situation will also have to be studied. 3. It is also a little difficult to appreciate that a sponsor will be willing to invest in a programme without seeing. The advertising agencies who have to give money will have to make sure that the programme will ensure viewership. It is in this context that the situation will also have to be studied. 3. The Secretary ISRO had assured me that the satellite will be available well before 15/08/1993 if the launch is success-ful. Any statement to the contrary will cause himembarrassment. 4. This may also give handle to the foreign satellite networks thatwe are not capable of handling the satellite system. 5. MIB had very correctly given his guidance and advice that on 5/07/1993 we should have observers to ensure that no onedoes any malpractice. This would be easily arranged. 6. It is my humble suggestion that the above points may kindly beconsidered before a postponement to 5/08/1993 asindicated by PS to MIB is considered. The possibility of alegal situation arising may also kindly be seen. May like toreview the matter at his convenience. Sd/-R. K. Bhargava3. 7. 1993mibwe have discussed this note and Secretary s comments. Secretary and AS (Incharge of Doordarshan) were present. We reviewed the entire question/subject in toto. The variousimplications 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/favouritism hasbeen alleged. So we can follow this system. Credibility ofisro has to be safeguarded. a to be enforced comprisingmha, ISRO be entertained and date for accepting beannounced for 9/07/1993 since postponement has beenannounced. (initial)R. K. Bhargava3. 7. 93as (B)Sd/- (initial) (K. P. Singh Deo) 3. 7. 93minister, Min. of I and 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 advisable not to implement the orders on page 4, nor to issue and obtain orders. Wewill review this case after Court disposal. In the meantime, let there be a Contingency Plan prepared fortelecasting from 15/08/1993 from other sources/resourcesincluding our own in-house production sources. We may reviewover a week. Sd/- (K. P. Singb Deo)Minister, Min. of I and B. 5. 7. Wewill review this case after Court disposal. In the meantime, let there be a Contingency Plan prepared fortelecasting from 15/08/1993 from other sources/resourcesincluding our own in-house production sources. We may reviewover a week. Sd/- (K. P. Singb Deo)Minister, Min. of I and B. 5. 7. 93 ( 22 ) A great deal of cliticism has been made as to the functioning of the Ministry, first giving a go-by to the first-come-first-served basis and going for random number generation and then on the same very day again reversing this decision and going back again to first-come-first-served basis. This decision to go back again to F. C. F. S. basis was not known till anaffidavit was filed by Mr. R. K. Singb, Deputy Director General, respondentno. 3 on 14/07/1993. He said as under:"1. On 3. 7. 1993, it was initial decided that the receipt of applications unper the Doordarshan Satellite Channels Scheme will notbe on first-cum-first-served basis but on random number generation. However, it was soon realised that allotment of timeslots on the basis of random number generation may not be assimple as it appears and accordingly, pending final decision;the date of receipt of applications was extended from 5. 7 1993to 9. 7. 1993. 2. Immediately on coming to know the first internal communication whereby random number generation was sought to beintroduced, applicants filed proceedings in this Hon blecourt. "3. Now, on a careful consideration of all the issues that have beenraised, it has been decided that the Scheme will continue to beoperative on the first-cum-first-served basis. Under the circumstances, the petition filed by the petitioner may be liable to bedismissed as infructuous by this Hon ble Court. "in any case this reversal of the decision on the same day, as noted abovehas been commented upon. It was pointed out that a message wascommunicated by Mr. R. K. Singh, DDG, on 3/07/1993 by FAX andtelex to Doordarshan Kendras and a notice was pasted outside the office ofthe Doordarshan. This read as under:"the Government has decided to postpone the receipt of applications on the metro and the satellite channels scheduled for 5/07/1993. A fresh date for the same would be announcedseparately. The Government has also decided that theallotment on these very application forms will be made on thebasis of random number generation. A fresh date for receiptof applications and allotment of time slots on the basis ofrandom number generation will be notified separately. A fresh date for the same would be announcedseparately. The Government has also decided that theallotment on these very application forms will be made on thebasis of random number generation. A fresh date for receiptof applications and allotment of time slots on the basis ofrandom number generation will be notified separately. This185may please be notified to all concerned and also announced ondoordarshan and Radio immediately and also later in theevening. "petitioners said that announcement of this notice waa made on the Doordarshan on 3/07/1993 at 5. 45 p. m. and even as late as at 10. 00 p. m. Itwas being announced that Government had adopted the random numbergeneration. The respondents have been unable to tell us to at what pointof time on 3/07/1993 this decision was reversed and they went back tofcfs basis. As a matter of fact every attempt seems to be in directionto keep from the Court the details and the fact that the decision from FCFSto Random Number Generation taken on 3/07/1993 was reversed on thesame 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 giventhat the decision to go back to F. C. F. S. was taken on some day after 3/07/1993. We were not satisfied with this affidavit and on 15/07/1993 wedirected as under:"in answer to show cause notice a brief affidavit has beenfiled by the respondents 1 and 3. It is stated therein that when thescheme was formulated time slot was to be allotted on the basis of first come first served . Thereafter, allotment was changed torandom number generation method. Again on rethinking, it isnow decided that first come first served method should be made thebasis for allotment of time slot. We are not satisfied with thisaffidavit. We, therefore, direct the respondent to file a detailedaffidavit in the matter. . . . "at the same time we issued Rule D. B. Then again Mr. Singh filedhisaffidavit dated 27/07/1993 on behalf of the respondents. We are not satisfied with thisaffidavit. We, therefore, direct the respondent to file a detailedaffidavit in the matter. . . . "at the same time we issued Rule D. B. Then again Mr. Singh filedhisaffidavit dated 27/07/1993 on behalf of the respondents. When he said inhis first affidavit that "on 3/07/1993 it was initially decided that the receiptof the applications under the Doordarshan Satellite Channel Schemewill not be on first come first served basis but on Random Numbergeneration", he explains now that this decision was temporarily taken. Thisis what he says in his affidayit dated 27/07/1993;"14. It is true that the first-come-first-served basis was temporarilygiven up on 3/07/1993 in avour of random number generation. The reasons for this were that the entire system of allotment of first-come-first-served basis was sought to be subvertedby some people who formed a queue outside the office ofdoordarshan on 23. 6. 1993, about 12 days before the receipt ofapplications. 15. The number of persons joining this queue kept increasing dayby day and, as reported in the press, it had swelled to about250. Meanwhile, some others formed a second queue. Anumber of articles with photographs kept appearing daily inthe pross commenting adversely on the system of allotmentand alluding to the possibility of a law-and-order problem onthe day the applications were to be received (5th July ). It wasalso alleged that certain people had formed cartels with the186intention of cornering all the time slots and trading themsubsequently at a premium. The system of allotment was alsoconsidered to discriminate against those applicants who did notlive in Delhi. 16. On 3. 7. 1973 Bennett, Coleman and Co. approached the Court ofthe Additional District Judge Delhi alleging that those in oneof the queues were blocking entry of bonafide persons intothe 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 tothis effect was accordingly sent by the Government todoordarsban the same day. 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 tothis effect was accordingly sent by the Government todoordarsban the same day. Later in the day, a copy of theinternal communication issued by the Doordarshan Directorate to its Kendras in Delhi, Bombay, Calcutta andmadras in this matter was pasted outside the Doordarshanoffice at 4, Tolstoy Marg by the police authorities, presumablyin the hope that the queues that had formed there woulddisperse 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 formonly 2 hours before the time of submission of applicationsprescribed by Doordarshan. "then he says that matter regarding change in the method of allotment wassubsequently examined in greater detail and it was decided to continue withthe original basis of allotment, i. e. , FCFS. As to what considerations nowwent into we may again reproduce relevant paras from the affidavit ofmr. Singhi"18. The matter regarding the change in the method of allotmentwas subsequently examined in greater detail when it wasobserved that the system of allotment through random numbergeneration would require some amendmente to the Schemealready announced on 3/06/1993 namely: (i) A closing date for the Scheme would have to be fixed sothat only those applications that are received uptil thestipulated time would be considered for the randomnumber generation. Further, it would entail fixing aclosing date every time additional time slots were to beallotted in the future, e. g. , to fill up vacancies caused byearlier allottees dropping out midway voluntarily or as aresult of punitive action for violation of the terms andconditions of the licence. (ii) It would be necessary to issue a fresh public noticeannouncing the amendments and give a reasonable timelo the applicants to prepare their applications afresh. These amendments could have given rise to a fresh roundof litigation which would have further delayed the implementation of the scheme. 19. It was also felt that the adoption of a new system of allotmentwould be unfair to the applicants who had intended to applyas per the Scheme announced on 3/06/1993 since theywere required to submit a bank guarantee of an appropriateamount along with the applications. 19. It was also felt that the adoption of a new system of allotmentwould be unfair to the applicants who had intended to applyas per the Scheme announced on 3/06/1993 since theywere required to submit a bank guarantee of an appropriateamount along with the applications. These bank guaranteesmay have to be extended for which bank charges, interest, etc. may have to be paid. Further, many of them would havetied up arrangements for the procurement of software forbeing telecast in the channel of their choice on which theyharboured a reasonable hope of securing a time slot and delayin selection could have caused them avoidable hardship. 20. Moreover, the efficacy of the method of first-come-first-servedhad been reasonably established while allotting time slots onthe Metro channel in January, 1993. 21. It was believed that the criticism of the original method ofallotment had been orchestrated with some ulterior motive byparties who had not secured a place near the head of theinformal queue that had formed outside Doordarshan s office,and by those who felt that Government may recognize thevalidity or legality of the informal queue. 22. In so far as the allegation of cartelization if concerned, it isrespectfully submitted that it is totally misconceived. The1/2 hour slots available for allotment in the new 5 channels peryear will be 27,872 of which 5148 will be on Prime time andthe balance 22,724 will be on non-prime time. It is veryunlikely that such a large number of slots can be sold at apremium. Moreover, it has specifically been mentioned in thescheme that transmission time will be gradually increased. Thisshould also act as a disincentive. The Scheme requires theallottees to deposit the licence fee seven days prior to thedate of telecast in the succeeding week. Therefore, the weeklyadvance deposits for all slots in all channels together wouldbe 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 allotteeswould 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 dayfor 365 days in a year even on a single channel. It is clearthat merely obtaining time is not enough in itself. 23. There is not a single production house in the country which has the capacity to provide 8 hours of programming per dayfor 365 days in a year even on a single channel. It is clearthat merely obtaining time is not enough in itself. The allotteewill need to procure good quality programmes, develop aninfrastructure to ensure full commercial exploitation of thetime slot, all subject to the acceptability of the viewer who isthe final judge. A chart detailing the relevant figures isannexed hereto as Annexure R-2. ( 24 ) IN this context, it may be mentioned that apart from thelicence fee payable, the cost of producing a half hour programme varies from Rs. 1. 5 lakhs to Rs. 4 lakhs depending onthe seats and fees paid to artistes. The cost to an allottee of asingle balf-an-hour slot on a single day in the prime timeentertainment channel will average out to about Rs. 5 lakhsand for a single week to Rs. 35 lakhs and for 52 weeksrs. 18. 20 crores. The allottees can recover this cost onlyfrom sponsors/advertisers whose willingness to finance woulddepend solely on viewer acceptability of the programme. Inthe ultimate analysis therefore, it will be the viewers andviewers alone who will decide and control the quality of theprogrammes. There is, therefore, no chance for any bad ormediocre programme surviving under these conditions on asustained basis. Production has to be planned well in advanceand it may take upto three months of advance planning. It isfor this reason that though the satellite channels will be operational from 15th August, the licencing period will start from15th October. ( 25 ) IT is submitted that rather than creating cartels, the satellitechannels will act as catalyst for giving opportunities to smallercompanies who will be able to produce attractive programmesfor these channels. It will also bring out hidden or untappedtalent in the country. ( 26 ) IN the present Scheme, the number of hours broadcast perweek will be 268. As against this, it is worth mentioning thatthe hours broadcast per week by Doordarshan presently is asfollows:- 62 hours- 22 hours- 21 hours- 16 hoursin other words, on the five satellite channels more thandouble the amount of hours will be broadcast than in thepresent broadcasting schedule of Doordarshan. Under thesecircumstances, it is unthinkable that a group of people cangarb all the time slots and successfully sell them at a premiumsubsequently given all these constraints. Under thesecircumstances, it is unthinkable that a group of people cangarb all the time slots and successfully sell them at a premiumsubsequently given all these constraints. 189 ( 27 ) GIVEN all these constraints, it is clear that the theory of cartelization is red herring. ASI these factors were taken into consideration for continuing wiih the first-come-first-served basisof allotment. "again we groped in dark as to when ths decision to go back to FCFS wastaken and in so much detail that we reqiurcd that the relevant files be produced in Court for our examination. The files were not available in thecourt at that time and the learned Solicitor General appearing for the respondents admitted that he himself had not seen the relevant files and furtherthat decision taken by the Government was not in any one of the files andthere were number of files. He said it would take two days time to collectthe files. We gave him time for the purpose. As to how the matter wasexamined in the Ministry the notes from the files reproduced above speakfor themselves. We are really appalled to see as to how the decision hasbeen arrived at io the Ministry. It would appear that some unseen handhad been working in the Ministry when decision from FCFS to RNO wasreversed. What were the considerations that weighed for reversing thisdecision are certainly not all those mentioned in the affidavit of Mr. Singh. In this long affidavit filed by the respondents every attempt has been madeto conceal from this Court as to when the reversal of decision from FCFSto RNG was taken. But for the production of the files we wouldcertainly have been misled to believe that decision was taken at a laterdate after 3/07/1993. We disapprove of this conduct of the respondents. When the decision on 3/07/1993 was taken there was no questionof the principle of first come first served being given up temporarily. Theaffidavit of Mr. Singh dated 14/07/1993 does not say as to when it dawnedupon the respondents that the allotment of time slots on the basis of Random Number Generation might not be as simple as it appeared. He is alsowrong when he says that "immediately on coming to know the first Internalcommunication whereby random number generation was sought to be introduced, applicants filed proceedings in this Hon ble Court". He is alsowrong when he says that "immediately on coming to know the first Internalcommunication whereby random number generation was sought to be introduced, applicants filed proceedings in this Hon ble Court". We have seenabove that wide publicity was given till late in the night on 3/07/1993 ofthe change from FCFS to RNG and the first suit in this Court was filedonly on 4/07/1993. The factors which existed for change of decision fromfcfs basis to RNG were still existing when on that very date (but we donot know at what time) this decision was again reversed. This decision forgoing back to FCFS basis is arbitrary and has been taken without applicationof mind. Considerations which led to the reversal of the decision which arenow sought to be projected were not there. In a matter of such a magnitude affecting million of viewers of this country, the Ministry should act insuch a fashion surprises us. We wished there would have been an expertcommittee, whether inside or outside the Ministry, to guide it. ( 23 ) IN the note to the Prime Minister dated 3/07/1993 the Ministerinformed him that it had been decided that the receipt of the applications forallotment of time slots on satellite channels which was scheduled for 5/07/1993 had been postponed and that the allotment, of time slots will be at alater date through random number generation through computer instead of first come first served basis and that fresh dates for this process would beannounced separately, ( 24 ) DURING the course of hearing of the petitions we were shown twoseparate files, may be part files, notings of which have been now put in fileno. 8/4/93-PBC. After the decision was taken by the Minister in the partfiles 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 throughrandom number generation through a computer, there are notings from 7/07/1993 to 4/08/1993. After this the second decision also dated 3july 19^3 of the Minister again going back to F. C. F. S. basis is in a file whichis in two sheets. The noting on the second sheet of 5/07/1993 says thatsince the matter was sub-judice it was desirable not to implement the orderfor going bank to F. C. F. S. basis. After this the second decision also dated 3july 19^3 of the Minister again going back to F. C. F. S. basis is in a file whichis in two sheets. The noting on the second sheet of 5/07/1993 says thatsince the matter was sub-judice it was desirable not to implement the orderfor going bank to F. C. F. S. basis. These two sheets are now paged 26, 27and 28 and there is endorsement that these have been merged in the mainfile No. 8/4/93-PBC. We have not been able to find if this change of decisiongoing 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. sayingthat as per decision of the Minister which was on the file that the receipt ofapplications scheduled for 5/07/1993 be postponed and allotment of timeslots be done at a later date through random number generation and that thenote informing this change was sent to the Prime Minister by the Ministerhimself on 3/07/1993 and subsequently the same day directions were alsoissued to Doordarshan regarding the postponement of the receipt of applications and the new system of allotment of time slots. This note makes thefollowing points;-1. The matter was again discussed in a meeting held in the Minister s Chamber on 5/07/1993 when Mr. Sanjiv Datta, Deputysecretary (BP), Additional Secretary, Joint Secretary (B) werealso present. Developments pursuant to litigation in the Delhidistrict Court and Delhi High Court were discussed "speciallyin the light of the change in the manner of allotment of timeslots approved by MIB on 3. 7. 1993, i. e. , random numbergeneration in place of on first-come first-served basis. "2. In so far as the formation of queues outside the Doordarshanoffice was concerned, it was clarified that no recognition hadbeen given to any of these queues by Doordarshan at anystage. Appointment of an Assistant Registrar of Delhi Highcourt was noted who had verified the register being maintainedin respect of one queue. 3. As regards the question of introducing any kind weightagelinked to experience, it was pointed out that the basic premiseof the scheme was that it would be driven by market forces andas such there was no need to introduce any quality or experience parameters as an essential precondition for allotment oftime slots. 4. 3. As regards the question of introducing any kind weightagelinked to experience, it was pointed out that the basic premiseof the scheme was that it would be driven by market forces andas such there was no need to introduce any quality or experience parameters as an essential precondition for allotment oftime slots. 4. Ministry s stand in Delhi High Court in the Civil Suit was to be of allotment of time slots on the basis of random numbergeneration. However, it was also to be made clear thatin case the Court favoured first come first served basis, theministry would have no objection to reverting to the same. This note is then marked to theJoint Secretary (B ). He records that it wasdecided that in the meeting REFERRED TO to in the above note of the Deputy191secretary that the following instructions be given to the Additional Solicitorgeneral who was to appear in that matter in the absence of the Solici"orgeneral: -'" (i) the queue being formed outside No. 4, Tolstoy Marg, hadno sanction by Doordarshan or by Government; (ii) that weightagewould be determined by market forces ; (iii) the scheme would bemade operative from 15. 8. 93 as announced; and (iv) the onuswould rest on the Court regarding either the "first come first served" system (regarding which the Court of the Vacation Judge hadalready appointed a local Commissioner to verify the register andthe applicants physically in the queue on 4. 7. 93), or the method ofrandom Number Generation, which was in accordance with themib's note to PM dated 3. 7. 93, wherein it had been decided thatthe receipt of applications scheduled for 5/07/1993 may be postpond, and that the date of allotment of time slots be done at alater date through the computer, instead of "first come first served"basis, and that fresh dates for this process would be announcedseparately. In accordance with this, DDG, (Shri R. K. Singh) sentfax 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 marksthe same to the Additional Secretary who after putting his signatures sendsthe same to the Secretary who records the following note ;"since we gave a public notice in announcing the scheme, anyamendment would also require a public notice. It will also requiretime to be given to the public so that they may make necessarypreparations for participating in the scheme. It will also requiretime to be given to the public so that they may make necessarypreparations for participating in the scheme. Since so far we havenot issued any public notice for amending the scheme, our existingscheme stands. As such it is submitted that we may take a consistant stand on the present scheme, the earlier model of which,namely, the Metro Scheme, has stood the test of time. We mayshow the Court how the Metro Scheme was earlier criticised in thesame manner and how once it became a success it was accepted bythe public. Eventually, we shall have 8 hrs. per channel and thus 40 hoursper day. Even taking a figure of 300 days it gives us 12000 hoursin a year and on half an hour basis 24000 programmes. To preview,understand and decide quality would be a gigantic task and wouldneed consideration. For the present we may not announce the postponement as thecourts have intervened. We may in consultation with Courts onlyannounce a date. The contingency plan of starting the channel of15/8/93 is being separately submitted to MIB. Sd/-10/7/93mibthe note is then sent to the Minister who gives the following endorsement :-Seen,sd/-19 Julyj93. 192 It is astonishing that in all these notings there is no mention of the Ministerreversing the decision and again going back to F. C. F. S. method which decision was also of 3/07/1993. Perhaps this later decision was kept a closelyguarded secret even from the officials of the Ministry. Minister in his laternote recorded that he bad discussed the note with the Secretary and A. S. . (Incharge, DDL But there are notings which we have mentioned abovethat even the Secretary and the Minister do not say that decision for goingfor allotment to random number generation through computer has beenreversed. As we have seen above, these two sheets containing this laterdecision of the Minister have been brought on the file only on 9/09/1993 when we had called for the files. As we have seen above, these two sheets containing this laterdecision of the Minister have been brought on the file only on 9/09/1993 when we had called for the files. We have been unable to appreciatethis veil of secrecy kept even from the other senior officers of the Ministryof reversing the decision from R. N. G. to F. C. F. S. This would also appearto explain the inconsistent stand taken by the respondents before us firststaling us that Doordarshan did not recognise the queue and then subsequently the Solicitor General lukewarm in his approach and unable to make acategorical statement as to the status of the queue when the Court persistentlyasked him to spell out the stand of the respondents on the queue formed outside the office of Doordarshan and it being still there. But thisdecision would appear to have come to the knowledge of the first few persons standing in the queue outside the office of Doordarsban and that wouldexplain why the queue was not broken up in spite of orders of the Court. ( 25 ) THERE has been shifting of stand by the Government as to how theallotment Is to be made. There reversal of the stand from random numbergeneration again to FCFS would appear to be shrouded in mystery. While agreat deal of publicity was given in the electronic media of the stand of thegovernment for going into random number generation till late in the nightof 3/07/1993 there is noting on the record as to when the public was madeknown of reversal of this stand till the affidavit dated 13/07/1993 was filedby respondent No, 3 in the writ petition No. 3104/93 (Home Communicationnetwork Limited ). This petition questioning the change of method ofallotment 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 adjournedto the next day. On 8/07/1993 when notice were issued in this petition, thepetitioner was not aware of the reversal of stand from random number generation to F. C. F. S. , otherwise perhaps he would not have pressed the petition. Inthis petition plea of legitimate expectation has also been raised saying thatthe respondents must stick to its method of allotment announced in thepublic notice, i. e. , F. C. F. S. basis. As a matter of fact. Inthis petition plea of legitimate expectation has also been raised saying thatthe respondents must stick to its method of allotment announced in thepublic notice, i. e. , F. C. F. S. basis. As a matter of fact. plea has also beenraised relying on the doctrine of promissory estoppel. It is stated that therespondents are estopped from altering the basis of allotment originallyrepresented to the petitioner and the public at large. Petitioner says he isfifth in the queue which was formed outside the office of Doordarshan on 23/06/1993. Petitioner, therefore, says he was certain to be allotted a timeslot. The scheme of random number generation in itself has not in terms been criticised by this petitioner. Other petitioners have done so. Theyhave said that both the schemes-F. C. F. S. and Random Number Generation, are violati've of equality clause under 'article 14 of the Constitution being arbitrary and discriminatory. It is stated that auction of time slotscould have been the best method as on'y genuine people would have comeforward and it would have generated more revenue for the Government. Itis one of the well recongnised method of distribution of largess and the veryfact that it was not considered by the respondents would be enough tostrike down the scheme of F. C. F. S. and R. N. G. though we are not suggestingand it is no intention of ours to suggest that respondents should resort to theauction method. ( 26 ) ON 6/08/1993 the Minister granted approval to rescind thescheme for allotment of time slot notified in September 1992 through publicnotice in the Gazette of India. (Extraordinary) on that day itself. His notereads as under :-"ds (BP) has described the entire evaluation of the ATCI fromits formation, deliberations, communications with the Ministry,through their presenting the document and raising various pointswhile not responding to any queries and clarifications asked by theministry. Even after rectifying all doubts in the discussion withthe Chairman on 22/03/1993, the Committee members resigned and the Chairman requested vide his letter dated 29/03/1993 to be relieved/released of his position as Chairman of ATCIfor the simple reason that Parliament, which was ic session askedto whom the Government is responsible, was informed of thesatellite channels without informing the ATIC which is a creationof Government. It is a question of the tail wagging the dog. It is a question of the tail wagging the dog. Not satisfied with the resignations, which were widely publishedin the Print Media (which was ridiculed in Parliament), files andinimical works and criticism of the dept. /ministry was mounted inthe same media. The Govt. kept silent, keeping in view that eminent and elderlypersons need not be offended by issuing rejoinders. Apparentlyconsideration, coultesy and good behaviour has been mistaken forweakness, indecisiveness and inept functioning by Govt. JS (B) in his first note described the Chairman's action ofaddressing the Solicitor General as unusual and so also marking hiscorrespondence to the Division B. nch of the Delhi High Court,presently hearing the case as unusual. I would term it unetbicaland improper, and reflects megalomaniac traits. I feel enough mischief and sabotage of the Satellite channelsand national interests and pride has been place in the last fewmonths. It is high time to put some stop to it. I agree with thesecy. 's proposal endorsing the JS (B) proposals in his second noteseeking approval for rescinding of the Scheme of allotment of timeslots notified as 28. 9. 1993. In my discussion with MOS Law telephonically I had mentioned that he would be seeing all the do'cuments. connected with ATCIand MOS Law wanted that a written opinion should be obtainedfrom Law Secy. JS (B) informed me that A. S, Law opinion at notesheet page. 2 may be deemed to have the Secy. 's concurrence. Approve JS (B)'s proposal as recommended by him. Cabinetsecy. and PMP may please be informed. There is no need to givepublicity at tlic moment. S (l. 006. 8. 93"in pursuance thereof the notification is issued the same day. ( 27 ) THUS, the A. T. C. I, which was constituted with Cabinet decisionwith specific purpose of allotment, or we may say management, of time slotson the Metro Channels of Doordarshan in September 1992 met its end on 6/08/1993. We would not know why the Chairman and all the membersof A. r. C. I. had tendered their resignations earlier in March 1993. ( 28 ) WE have seen above the licence fee fixed for prime time and non-prime time under the scheme envisaged under public notice dated 28/09/1992 of allotment of time slots on metro channel of Doordarshan. Samevery licence fee has now been fixed for the entertainment channel. ( 28 ) WE have seen above the licence fee fixed for prime time and non-prime time under the scheme envisaged under public notice dated 28/09/1992 of allotment of time slots on metro channel of Doordarshan. Samevery licence fee has now been fixed for the entertainment channel. On ourdirections the respondents filed the basis for fixing licence fee for allotmentof time slots on entertainment channel of Doordarshan, and it is as under :"the followig three elements were taken into account for computing the licence fee :- (i) Direct cost of transmission to be incurred by Doordarshan. (ii) Opportunity cost. (iii) Uplink charge. Direct Coston the replacement cost [rs. 700 lakhs) interest @ 18% perannum (Rs. 126 lakhs) and depreciation @ 9% per annum (Rs. 63lakhs) have been worked out and these two elements together withthe annual operation cost (Rs. 171 lakhs) give a direct cost of Rs. 260 lakhs per annum, i. e. , Rs. 3,560 per half an hour slot (based on10 hours daily transmission ). Opportunity Costthe maximum revenue realisable on the second channel permetro for 10 hours of transmission each day works out to Rs. 3650lakhs per annum (as per existing rate card ). The revenue foregoneas a result of the new scheme works out to Rs. 50,000. 00 per half anhour slot. Uplink Costrs. 10,000. 00direct cost+opportunity cost==standard licence fee. Rs. 3560+rs. 50,000==rs. 53,560 or say Rs. 54,000. 00standard Licence Fee+uplink cost==licence fee for prime timeslotrs. 2. 16,000+rs. lo. OOO =rs. 2,26,000standard Licence fee-50% discount on Operating Costx4+uplinkcost= Licence 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 thecost of the satellite. Mr. Solicitor General said that cost of satellite and itsputting ill the orbit has been provided in the budget allocation, though notof the Ministry of Information and Broadcasting and that as the things stoodthis Ministry is not to pay to other department (Space) for utilising part ofthe 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 intoaccount. 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 intoaccount. The reply is as under :-"in this regard, it is submitted that presently no lease chargesare payable for the transponderes of the Indian satellites by theuser Department since the funding for the satellites is being provided from the budget of the Department of Space as part of itsrandd plan. If such lease charges become payable in the future, thesame would also be taken into account while computing the licencefee for the time slots on the Satellite Channels. There is, however,no gain saying the fact that the said addition would resiult in a substantial enhancement of the current licence fee. "this stand is, however, not reflected in any of the files shown to us. Wealso enquired from the respondents if while fixing the licence fee any studywas made as to what were the charges of advertisement of Star T. V. Anaffidavit was filed by Mr. Sanjiv Dutta, Deput Secretary in the Miii:stry. The affidavit starts with an objection that since the quantum of licence feeor even the basis on which the licence fee worked out had not been challenged by any of the petitioners at any stage of arguments or in the pleadingseven though all the petitioners were aware of the qiuantum of licence feepayable, this question was never in issue before this Court. By making sucha statement respondents are showing ignorance that whole of the scheme isunder challenge, and when the stand of the Government itself is that it hadreached a policy decision to privatise the time on the satellite channels andat the same time to earn revenue, the question of licence fee squarely fallsfor consideration. In the first instance when Dr. Gapta filed his writ petition (CWP No. 3117/93) it was in the nature of a public interest litigation. Wemay, however, note that it was that stand of Dr. Gupta that the licence feefixed was on a higher side. In the first instance when Dr. Gapta filed his writ petition (CWP No. 3117/93) it was in the nature of a public interest litigation. Wemay, however, note that it was that stand of Dr. Gupta that the licence feefixed was on a higher side. As to whether the rates charged by Star T. V. were taken into account, the respondents had to say the following in theiraffidavit :-"in this regard it is submitted that this element was considered and it was concluded that a comparison with STAR TV wasnot relevant for severalreasons such as : (i) STAR TV is watched in several countries from Hong Kong todubai. The Entertainment Channel will be available onlyin India and the majority of viewers will bo in the fourtmetros. (ii) STAR TV broadcasts only in English whereas the Entertainment Channel will be multilingual and will, therefore, have alarger viewership. (iii) It is possible that STAR TV may have deliberately kept theircharges low with an eye on market entry, even incurring initiallosses. 8. This Hon'ble Court may be pleased to appreciate the followingfacts: (i) The entertainment Channel will need some time to reach anoptimum viewership. It was, therefore, decided to fix thelicence fee on a conservative basis (based on incremental costinstead of total direct and indirect cost ). (ii) When the privatisation of the Metro Channel started on26. 1. 1993, the. licence fee was fixed at Rs. 80,000. 00per hour (that is standard licence fee of Rs. 54,000 +50/o premium onthe operating cost-Rs. 25,000 ). This was considered to bevery high. Accordingly the licence fee was reduced to Rs. 54,000. 00 by removing the 50% premium on the operatingcost. (iii) The licence fee has been fixed for one year only and will bereviewed thereafter. (iv) The entire concept of the Satellite Channels is new and untested and a wide latitude ought to be given to the Government ifixing the licence fee. " ( 29 ) MR. Gupta, learned Solicitor General, also said that this schemewas only for interragnum period till the Ministry heard from the Primeminister or any Cabinet decision was communicated to it. When there wasa scheme for allotment to time on Metro Channel a high power committeehad been constituted. This scheme which is far bigger in scope and intentalso needed such a committee. Gupta, learned Solicitor General, also said that this schemewas only for interragnum period till the Ministry heard from the Primeminister or any Cabinet decision was communicated to it. When there wasa scheme for allotment to time on Metro Channel a high power committeehad been constituted. This scheme which is far bigger in scope and intentalso needed such a committee. The Minister in his note to be the Primeminister had given four alternatives and had said that the Ministry was infavour of adopting a Course of action suggesting in alternative No. 4 whicwe have reproduced above. This needed approval and the Minister hasaid that for the interregnum the management of the channel would continueto be handled through Doordarshan with suitable consultants employed forthis purpose. Without waiting for any response, this scheme was broughinto force, and we are told this is for interregnum period till the matter iconsidered by the Prime Minister or by the Cabinet. From the scheme noone can make out that it is for interregnum period. It talks of allotment otime slots for 52 weeks and there being a clause for renewal as well. Wefail to understand why such an elaborate scheme containing legal loophole;was at all devised if it was to operate only for an interregnum period, Inthis connection note of Mr. Sanjiv Datta. Deputy Secretary (BP) dated 28/04/1993 has been noted by us above. He has REFERRED TO to a communicationreceived from the Cabinet Secretariat which is as under :-Prime Mini'sfer's Officeenclosed are two notes, from I and B Minister and Seeriandb,onjand B Ministry's proposal to extend the transmissionservices of Doordarshan and AIR. PM has desired that theraised in these notes should be examined in detail by thegroup on Media-in particular issues such as the managementstructure, private participation in the proposed management. toring of the news and current affairs programmes and the financialviability of the proposed channels. Cabinet Secretary may kindly send the views and recommendations of the Code Group urgently for submission to PM. Sd/- (P. V. R. K. Prasad)Information Adviser to PM"this communication was addressed to the Cabinet Secretary, and this wasreceived by the Secretary in the Ministry on 28/04/1993. ( 30 ) DR. Gupta (CPW No. 3117/93) said that the satellite was ownedby the Department of Space in the Ministry of Science and Technology andnot by the Ministry of Information and Broadcasting and this Ministry,therefore, could not make use of the satellite. ( 30 ) DR. Gupta (CPW No. 3117/93) said that the satellite was ownedby the Department of Space in the Ministry of Science and Technology andnot by the Ministry of Information and Broadcasting and this Ministry,therefore, could not make use of the satellite. He said that when there wasthe Prasar Bharati (Broadcasting Corporation of India) Act, 1990, thescheme could not be floated in the exercise of executive powers by therespondents. Dr. Gupta said that when a comprehensive legislation hasbeen made by the Parliament, the Central Government could not keep theact in abeyance and not enforce it and proceed to take a decision of such amagnitude. He said when there was an explosion in the electronic media itwas right time that an expert committee was constituted of experts from thelaw, media, economics, culture, etc. , presided over by a retired Judge of thehigh Court or the Supreme Court. Dr. Gupta said that consideration ofrevenue was of paramount importance and auction of time slot was the bestmethod in the circumstances of the case. He also said any concept of primetime was not of much relevance. If a programme was good and shown evenin the middle of night a person would get up and see the same and thatwould be the prime time. Dr. Gupta also REFERRED TO to report of the Interdepartmental Committee on Introducing Competition in the Electronic Mediacalled the Varadan Committee report and also to the scheme of allotment ofair time on the metro channel of Doordarshan and All India Radio by theair Time Committee of India (ATCI) also called the Deodhar Committeereport REFERRED TO to above. Dr. Gupta said there should be an Act, on thelines of the Broadcasting Act, 1990, of England. Then his argument was thatministry of Information and Broadcasting was incompetent to grant licencein question as that was within the domain of the Department of Telecommunications in the Ministry of Communication. Media, Dr. Gupta said,was under, exposure from outside and when the State was withdrawing fromactive participation, then there had to be a regulatory control, a compositemedia policy had to be framed. He then REFERRED TO to Indian Wireless Telegraphy Act, 1930 and to the Indian Telegraph Act, 1885, to contendthat authority competent to grant licence would be Telegraph Authority andthat would be to Director General of Post and Telegraph, as defined in theindian Telegraph Act. He then REFERRED TO to Indian Wireless Telegraphy Act, 1930 and to the Indian Telegraph Act, 1885, to contendthat authority competent to grant licence would be Telegraph Authority andthat would be to Director General of Post and Telegraph, as defined in theindian Telegraph Act. We do not think we have to refer to these to enactments as only time slots are being offered to the public and the whole operation is in the hands of the Government itself. There is no question of grantof any licence under these two enactments. Though Dr. Gupta said thatauction was the best method, the English Broadcasting Act provided thatwhile granting licence based on auctioning the commission constituted underthat Act might disregard the requirements imposed under the Act andaward the licence to an applicant who had not submitted thehighest bid if it appeared to the commission that there were exceptionalcircumstances which made it appropriate for them to award the licence tothat applicant. Federal Communication Commission in the United States ofamerica, Dr. Gupta said, protected the public interest by ensuring that nomonopoly existed in radio and television broadcasting, though there theelectronic media was completely owned by the private sector. ( 31 ) A committee under the Chairmanship of K. A. Varadan,additional Secretary in the Ministry of Information and Broadcasting wasconstituted by office memorandum dated 3/09/1991 consequent upongovernment's decision to introduce competition in the electronic media byoffering telecasting/broadcasting rights to Public Corporation, which conformto the parameters to be laid down by law to help evolve a broad frameworkfor introducing such competition. This committee was also to make anindepth study of all aspects relating to the offering of telecasting/broadcasting rights to public corporations and other related matters, through extensive discussions with those who had shown interest in acquiring such rightsand otherwise, and suggest to the Government the most suitable option (s)available for implementation of this scheme including the detailed parameterssubject to which the telecasting/broadcasting rights could be offered to publiccorporations. The object for which this Varadan Committee was formedwould certainly be relevant to an extent in the present case, though thecommittee would appear to have been set up when it was proposed to offerthe rights to public corporations. The object for which this Varadan Committee was formedwould certainly be relevant to an extent in the present case, though thecommittee would appear to have been set up when it was proposed to offerthe 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 changein the broadcasting policy of the Government. This naturally gaverise to a lot of lively interest in the country on the practical possibilities of such a change. Some individuals and organisations alsoresponded in writing showing their interest in and willingness forrunning new channels. At the same time, some intellectuals andmedia experts also cautioned the Government against the dangersto the country of indiscriminate opening up of broadcasting. Government appointed a Committee on 3-9-1991 to studyvarious aspects of this proposal and make suitable recommendations. The composition of the Committee and its terms of referenceare at Annexure 1. The Committee badseveral sittings duringseptember and October 1991. The Committee also met representatives of groups which bad shown interest in setting up and running the new broadcasting channels. The Committee also metsome experts in the field of communications to know their viewpoints. The Committee gathered as much information as possibleabout the broadcasting systems in some countries in the world andstudied them. The issues involved are of profound importance to the Indiansociety. The Committee found its task both challenging and rewarding. The Committee has attempted to formulate various options tousher in a new broadcasting system and spell out their pros andcons. The Committee has also made its recommendations on theseoptions. The Committee met many individuals and groups and had valuableexchange of views on the subject. We wish to thank all ofthem. The Committee, particularly"wisbes to place on record itsappreciation and thanks for the help rendered by Shri G. Balagopal,director in Information and Broadcasting Ministry who is now onstudy leave pursuing a subject in the field of broadcasting. Withhis keen interest in and knowledge of the subject and painstakingefforts to collect all relevant facts and analyse them the Committee'stask was made infinitely easier. The Committee has pleasure in submitting its report to thegovernment. We hope that this report will facilitate appropriatedecision-making by the Government on a new broadcasting systemfor the country. Withhis keen interest in and knowledge of the subject and painstakingefforts to collect all relevant facts and analyse them the Committee'stask was made infinitely easier. The Committee has pleasure in submitting its report to thegovernment. We hope that this report will facilitate appropriatedecision-making by the Government on a new broadcasting systemfor the country. "the Committee suggested that the Broadcasting Council of India to beconstituted through a legislation amending the relevant sections in theprasar Bharati Act which should be entrusted with the functioning oflicensing, monitoring of programmes and quality rating, etc. Various othersuggestions were also made. The Committee also examined internationalcomparisions with reference to the provisions existing in the United Kingdom,united States of America, Japan, France, Germany, Australia and thesoviet Union. The Prasar Bharati Act, which is yet to be enforced andwhere certain amendmenis are contemplated, establishes a Corporation tobe known an Prasar Bharati (Broadcasting Corporation of India ). It givesthe functions and powers of the Corproation so established. The Solicitorgeneral said that the present scheme was broadly in consonance with thisact and that Varadan Committee was an inter-departmental committee andsuggestions were not binding on the Central Government and ATCI wasconstituted when the Government had no scheme to introduce satellite channels and its functions related merely to metro channiel. But then both thesereports certainly have relevance to the scheme now formulated for award oftime slots to private persons. As to the position in other countries, learnedsolicitor General said that it was not necessary to deal with those provisionsand that because an issue had been dealt with in a particular manner in onecountry did not mean that the manner in which another country dealt withthe same issue was arbitrary. Thus, what is the experience of other countries,according to the respondents, is of no relevance to them. In the discussionsin the Ministry which have been reflected in the notes which we have quotedin extenso, for bringing into operation the scheme in question, there is nowhisper if the recommendations of Varadan Committee report and Deodharcommittee report and the provisions of the Prasar Bharati Act were at allreferred TO to. "let knowledge come from every side" is perhaps not the mottofor the people in the Ministry of Information and Broadcasting. ( 32 ) THE learned Solicitor General said that the Prasar Bharati Acthad not yet been brought into force and various consultations were in progress with regard thereto. "let knowledge come from every side" is perhaps not the mottofor the people in the Ministry of Information and Broadcasting. ( 32 ) THE learned Solicitor General said that the Prasar Bharati Acthad not yet been brought into force and various consultations were in progress with regard thereto. We have noted above, that Varadan Committeerecommended certain modifications in this Act. It is well settled that untilan Act is brought into force it would be inoperative in the constitutionalsense and could not be called in aid to control executive action or for anyother purpose. Learned Solicitor General is right in his submission that insuch a situation that executive powers of the Central Government remainunfettered and co-extensive with the legislative powers of the Parliament. Inthis connection the learned Solicitor General REFERRED TO to the decisions of thesupreme Court in (1) Raj Saheb Ram Jawaya Kapoor v. State of Punjab, AIR1955 S. C. 549; (2) The State of Orissa v. Chandrasekhar Singh Bhoi etc. AIR1973 S. C. 398; (3) A. K. Roy v. Union of India, AIR 1982 S. C. 710; and (4) Union of India v. Sukumar Sengupta, AIR 1^90 S. C. 1692. ( 33 ) TO bring an Act into force after it is passed by the Parliament, isa legislative function, as the law stands today. But some day this questionmay have to be re-examined if without enforcing that particular Act whichis on statute book the Government could exercise same very functions asenvisaged under that Act. Therefore, how can executive keep the soverignwill of the Parliament in abeyance which otherwise has enacted a law on thesubject. The learned Solicitor General had submitted that in any event thepresent scheme did not in any way violate the present provisions of theprasar Bharati Act or the objectives which were to guide the proposedcorporation contemplated under that Act. ( 34 ) UNDER the Government of India (Allocation of Business) Rules,1961, fr'amcd under Clause (3) of Article 77 of the Constitution, the businessof the Government shall be transacted in the ministries, departments,secretariats and offices specified in the first schedule to these Rules. Thenunder Rule 3, the distribution of subjects among the deparments shall be asspecified in the second schedule to the Rules. Doordarshan is one of theattached and subordinate organisations in the Ministry of Information andbroadcasting. Admittedly, the satellite does not belong to this Minisry, butthe schema for its five channels envisages use of the satellite. Thenunder Rule 3, the distribution of subjects among the deparments shall be asspecified in the second schedule to the Rules. Doordarshan is one of theattached and subordinate organisations in the Ministry of Information andbroadcasting. Admittedly, the satellite does not belong to this Minisry, butthe schema for its five channels envisages use of the satellite. Under Rule 4of the Government of India (Transaction of Business) Rules, 1961, alsoframed under Clause (3) of Article 77 of the Constitution, when the subjectof a case concerns more than one department, no order be issued until allsuch departments have concurred, or, failing such concurrence, a decisionthereon has been taken by or under the authority of the Cabinet. There isno mention in the files shown to us or in the counter-affidavit filed by therespondents that the Department of Space has concurred in the use of itssatellite by the Ministry of Information and Broadcasting. Sub-rule (3) ofthis Rule 4 provides that Ministry of Law shall be consulted on- (a)proposals for legislation; (b) the making of rules and orders of a generalcharacter in the exercise of a statutory power conferred on the Government;and (c) the preparation of important contracts to be entered into by thegovernment. Again neither the files of the respondents nor the schemetells us if the Ministry of Law was at all consulted. It is undenying that thescheme provides for entering into a contract which is an important oneinvolving as much as a whopping sum of Rs. 249,50,000/ is to be obtainedby the Ministry for licensing of time slots on the five channels. Mr. Madanlokur, Csntral Government Standing Counsel for the respondents, submittedthat Cabinet had constituted an Insat Coordination Committee with thesecretary, Department of Space, as Chairman and that this Committee badpermitted the use of five transponders on the satellite by the Ministry. Mr. Lokur, therefore, said that there was concurrence by the Department ofspace permitting the user of transponders on lnsat-2-B by the Ministry. Inthis connection we do find a letter dated 4/06/1993 written by thesecretary, Ministry of Information and Broadcasting, to Professor U. R. Rao,secretary, Department of Space. Mr. Lokur admitted that Ministry of Lawwas not consulted when the public noticegiving the impugned scheme wasissued. He said that when scheme for allotment of time slots on Metrochannel was introduced in January 1993 Ministry of Law was consulted andterms and conditions were settled by the Ministry of Law. Mr. Mr. Lokur admitted that Ministry of Lawwas not consulted when the public noticegiving the impugned scheme wasissued. He said that when scheme for allotment of time slots on Metrochannel was introduced in January 1993 Ministry of Law was consulted andterms and conditions were settled by the Ministry of Law. Mr. Lokurplaced on record a copy of the contract. We find scheme introduced at thattime formed the terms and conditions of the contract. The case of therespondents before us is that scheme for allotment of time slots on Metrochannel was insignificant to the present scheme for allotment of time slotson satellite channels. There are material differences between the twoschemes. As a matter of fact, the dispute in the present case, as we haveseen above, pertains to the Entertainment Channel including the Metrochannel and that too for the prime time period. This programme can nowbe seen all over the country with the help of dish antenna and on the Metrochannel by a terrestrial telecasting in the metropolis. Mr. Solicitor Generalwas at pains to tell us that scheme of allotment of time slots of one hour onmetro Channel introduced earlier was of no relevance to the allotment of 50hours of time slots on satellite channels. It was the bounden duty of theministry of Information and Broadcasting to consult the Ministry of Lawbefore finalising the scheme as the scheme itself forms the terms andconditions 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 ofindia (Transaction of Business) Rules which require consultation with theministry of Law on the preparation of important contracts, to be enteredinto by the Government are mandatory and these provisions have beenviolated by the Ministry. The scheme must fail on that account. Duringthe course of arguments, and as we earlier noted more than once, we weretold by the learned Solicitor General that the scheme framed was only foran interregnum period till a policy was formulated by the Cabinet. Wereally wonder what an effort has been gone into to introduce this schemeonly for an interregnum period which we have not been told how long it willlast. Wereally wonder what an effort has been gone into to introduce this schemeonly for an interregnum period which we have not been told how long it willlast. We do appreciate, however, the stand of the respondents that it isleft to the Cabinet to take the decision on the question of allotment of timeslots on satellite channels as this was done in the case of allotment of timeslots on Metro Channel for the earlier scheme. ( 35 ) AGAIN during the course of arguments we had occasion toexamine the scheme as informed to the public by means of public notice. This is a hastily drafted document with many loopholes. For example, itstarts with the application from partias interested in obtaining a licenceunder the scheme. After the party gets the licence, does the party become alicensed programmer, or a mere programmer, or a licensee, or even aproducer. These different expressions have been used without anydefinition, and it says that management may on repeated infringement ofthe guidelines for programmes by the licensee, etc. suspend or revoke thelicence. But before that the licensee, is to be informed in writing and heis to give his explanation within fifteen days. This explanation is to beexamined by the Government whose decision is to be communicated to thelicensee. Are management and Government two different entities ? In thescheme there is provision for appeal also. The appeal in case of anydispute can be made to the Government in the Ministry of Information andbroadcasting which can either dispose of the appeal itself or refer it fordisposal to the designated authority for this purpose. It is stated thatgovernment also reserves the right to set up a separate body for this purpose. It is unnecessary to multiply other anomalies in the scheme. We hadoccasion to remark during the course of arguments that such a scheme wouldbe a lawyer's paradise. That is precisely the reason why the law mandatesconsultation with the Ministry of Law. ( 36 ) ONCE having held that order of the Government reversing thebasis of allotment from Random Number Gene-ration to FCFS wasillegal, it is not necessary for us to go into the question if the 'criterio offirst come first served is valid as the decision to have the basis of Randomnumber Generation would stand in view of the order of the Governmentdated 3/07/1993. Nevertheless, since a great deal of arguments have beenaddressed we may well examine this question. Nevertheless, since a great deal of arguments have beenaddressed we may well examine this question. ( 37 ) IT is contended that three possible methods of selection come tomind : (1) first-come-first-served, (2) random number generation, and (3)action. In the counter affidavit the respondents said that the three possiblemethods of selection were (1) F. C. F. S. , (2) R. N. G. , and (3) selection that theon the basis of proven track record, i. e. , quality criterion. It was admittedquestion of auction of time slots was never examined. It was submittedby the learned Solicitor General that the three methods of choice were : (1) F. C. F. S. , or (2) at random among the applicants, or (3) by auction. Webelieve when the words "at random among the applicants" are used refereneis to random number generation. Respondents say that F. C. F. S. had beensuccessfully tried earlier by the Government and governmental agencies inthe past. Doordarshan and All India Radio had also successfully used thefirst-come-first-served basis for allotment of time slots on Metro and FMChannels. It is stated that in January 1993 under the scheme for metrochannel Doordarshan had received over 300 applications and time slots wereallotted on F. C. F. S. basis. Before we examine the three methods of choicewe may note that under the scheme an applicant is required to indicate thenumber 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 fourgroups, depending upon the number of time slots applied for. Eachgroup is then to be considered separately and applications accepted for thetime applied for, it available, in the order of preference indication. If noneof the time preferences applied for are vacant, then the applicant is offereda time slot to be selected by computer in accordance with a pre-programmedsequence. Respondents contend that the FGFS basis contemplates thephysical formation of a queue and an orderly entry of applicants to thereceiving "window". It is stated that this is the most appropriate methodto be adopted where no pre-selection is contemplated. Then it is arguedthat queue is a system universally used for an orderly dispensation, and thatthis is not an arbitrary method. It is contended that merely becauseapplicants formed the queue in advance does not render the methodarbitrary. It is stated that this is the most appropriate methodto be adopted where no pre-selection is contemplated. Then it is arguedthat queue is a system universally used for an orderly dispensation, and thatthis is not an arbitrary method. It is contended that merely becauseapplicants formed the queue in advance does not render the methodarbitrary. Many queues are formed in advance for popular sports events,school admissions, cinema schows, railway tickets and so on. A possibilityof disruption does not detract from the reasonableness of the method whenany method is capable of subversion. Then the respondents say that merelybecause there is possibility ofdisruption of queue, or a law and orderproblem may be created, would not make the basis of F. C. F. S. in itselfinvalid. About random number generation method the respondents contendthat this is also in the nature of queue formation with the only differencethat who has come first is determined by the computer at random. Thismethod, according to the respondents, could not be restarted to because thescheme envisages no closing date. About auction the respondents case isthat action may fetch the highest price, but it was felt that at this stage itwas not a desirable method. Every half-an-hour slot will have to beconsidered separately for auction again amongst the applicants divided intofour groups. It is stated that it will give preference to money power andinhibit talent, and since the "market" is not known, it was not consideredto be an appropriate procedure to be followed at this stage. ( 38 ) WHEN auction itself was not taken into consideration there is nopoint arguing that this method is not good at this stage. Nobody in theministry has examined this aspect of the matter. When in. the present casethe applications were to be received on and as from 5/07/1993 and a queueoutside the office of the Doordarshan started forming from 23/06/1993itself, which led to filing of a civil suit and Court ordering even breaking ofthe queue, respondents could have examined the question of auction as well. When the response was overwhelming and tremendous and the Ministry wasstill not considering this method that would again be an act of unreasonableness at the cost of public revenue. This method is now sought to begiven a go-by on a spacious plea that every half-an-hour slot will have to beconsidered separately for auction. When the response was overwhelming and tremendous and the Ministry wasstill not considering this method that would again be an act of unreasonableness at the cost of public revenue. This method is now sought to begiven a go-by on a spacious plea that every half-an-hour slot will have to beconsidered separately for auction. When the channels are to be privatised inthe 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 maximumrevenue could not have escaped the minds of the respondents. Yet we findin 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 allotmentof slots. The learned Solicitor General said it was no function of the Court tosuggest which method for allotment of time slots was more appropriate. Mr. Ashok Desai, appearing for petitioner in writ petition filed by Homecommunication Network Limited (CWP No. 3104/93) REFERRED TO to certainobservations 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 toreconstruct. Reference was also made to a decision of the Supreme Courtin G. B. Mahajan v. Jalgaon Municipal Council, 1991 (3) SCC 91 , where thesupreme Court cited with approval the observations of the House of Lordsin Nottinghamshire Country Council v. Secretary of State for the Environment1986 (1) AC 240, wherein it was held as under:"unless and until a statute provides otherwise, or it is establishedthat the Secretary of State has abused his power, these are mattersof political judgment for him and for the House of Commons. Theyare not for the Judges or your Lordships House in its judicial capacity. "mr. Solicitor General also submitted that a number of options may all fallwithin the range of reasonableness, and REFERRED TO to Wade's Administrativelaw, Sixth Edition (page 407) where the learned author said that "two persons may give two opposite conclusions on the same set of facts withoutforfeiting their rights to be regarded as reasonable. " ( 39 ) WE may also note a decision of the Supreme Court in Kumarishrilekha Vidyarthi etc. " ( 39 ) WE may also note a decision of the Supreme Court in Kumarishrilekha Vidyarthi etc. v. State of U. P. and Others, AIR 1991 S. C. 537,where the Court said "it is significant to note that emphasis now is on reviewability of every State action because it stems not from the nature of function,but from the public nature of the body exercising that function. " Thus,every executive action whether under the authority of law or otherwise wouldbe open to judicial review. ( 40 ) WE may refer to the doctrine of 'wednesbury unreasonableness'as propounded in Associated Provincial Picture Houses Ltd. v. Wednesburycorporation, (1948) I K. . B. 223. In this case, under a certain enactment thelocal authority had power to grant licencees for cinematograph performancesunder "subject to such conditions as the authority think fit to impose". When in this case the authority granted the licence a condition was imposedthat no children under the 15 years of age should be admitted with or without an adult. This was challenged. It was held that the local authority hadnot acted unreasonably or ultra vires in imposing the condition. Lordgreene MR. who delivered the judgment observed as under :-"it is true the discretion must be exercised reasonably. Now whatdoes that mean ? Lawyers familiar with the phraseology commonly used in relation to exorcise of statutory discretions often usethe word "unreasonable" in a rather comprehensive sense. It hasfrequently been used and is frequently used as a general descriptionof the things that must not be done. For instance, a personentrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters whichbe is bound to consider. He must exclude from his considerationmatters which are irrelevant to what he has to consider. If he doesnot obey those rules, he may truly be said, and often is said, to beacting "unreasonably. " Similarly, there may be something soabsurd that no sensible person could ever dream that it lay withinthe powers of authority. Warrington L. J. in Short v. Poolecorporation, (1926) Ch. 66, 90, 91. gave the example of theredhaired teacher, dismissed because she had red hair. That isunreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it mightalmost be described as being done in bad faith; and, in fact, allthese things run into one another. 66, 90, 91. gave the example of theredhaired teacher, dismissed because she had red hair. That isunreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it mightalmost be described as being done in bad faith; and, in fact, allthese things run into one another. " ( 41 ) MR. Desai said that this principle of we ednesbury unreasonableness had been approved by the Supreme Court in G B. Mahajon's case [ (1991)3s. C. C. 91]. Mr. Desai stressed that it was well settled principle that inmatters of economic policy the Government was the best judge and the Courtwould not interfere merely because a better alterntie was available, and thatthe point to note was that a thing could not be unreasonable in the legalsense merely because the Courts thought it unwise. To support this submission Mr. Desai REFERRED TO to decisions of the Supreme Court in (1) M/s. Guptasugar Works v. State of U. P. and Others, AIR 1987 S. C. 2351; (2) Shrisitaram Sugar Company Limited v. Union of India and Ors. . (1991) 3 S. C. C. 223- (3) Peerless Genera! Finance and Investment Co. Limited and Another v. Reserve Bank of India, (1992) 2 S. C. C. 343; (4) State of M. P. and Others v. Nandlal Jaiswal and Others, AIR 1987 S. C. 251; and (5) R. K. Garg v. Unionof India and Others, AIR 1981 S. C. 2138. There cannot be any dispute onthe proposition so advanced by Mr. Desai. But here the question is entirelydifferent. We find the respondent have not acted reasonably in adopting thebasis of FCFS. All the options available were not considered at all. Learnedsolicitor General himself admitted that there could be three methods ofallotment of such time slots. He could not find any answer as to why allthe methods do not even find mention, what to say of discussion, in thefiles. The scheme for allotment of time slots on Metro Channel started in January1993 was entirely different as the respondents themselves say so and the basisof FCFS adopted in that scheme could not be applied in the impugnedscheme. Even this fact does not find mention in the files when the firstnote starts. Instances have been given where allottees in the first schemehad to abandon their projects in between causing disruption in the continuityof the programmes. Even this fact does not find mention in the files when the firstnote starts. Instances have been given where allottees in the first schemehad to abandon their projects in between causing disruption in the continuityof the programmes. We may also note that in the first scheme applicationsfor allotment could be given in the office of the Doordarshan in fourmetropolis. ( 42 ) BE that as it may, the Court expected the authorities to considerall possible options and then to arrive at one option in an objective manner. In the present case we find the three methods of choice agreed to even bythe respondents have not been examined at all in the Ministry and the modeof selection is just mentioned as first come first served basis. When numberof methods were available, the Ministry could not choose one without considering other methods. Even RNG method could not have been chosenthat way. Action of the respondents had to be transparent in selecting thebasis of allotment which is not so here. We are not impressed with thearguments of the learned Solicitor General that first come first served methodis there for buying railway tickets, sports events, cinema shows, schooladmissions, etc. He said people stand in queue before a store many days inadvance to buy a thing at bargain price. The approach to the problem itselfis wrong and instances inappropriate. Where a person does not get theticket it affects him personally. If he cannot go by a train on a particularday, he can go on a following day. If he does not get admission in oneschool of his choice he may be disappointed or even get admission in otherschool, or he may face disappointment when he does not get ticket to watcha certain sports event. He can go for another show if he cannot get a ticketfor a particular cinema show. Also the thing a person wanted to buy at astore at a particular bargain price, be can get that very thing from anotherstore though paying a little extra. Here the relationship of licensor andlicensee between the Govt. and the producer is not limited to both these twoonly, but there are the millions of viewers in the country whose interests areparamount, the present scheme notwithstanding. It is certainly not for us toanalyse as to which of the three methods is good. What the Court wouldof the Cabinet. Here the relationship of licensor andlicensee between the Govt. and the producer is not limited to both these twoonly, but there are the millions of viewers in the country whose interests areparamount, the present scheme notwithstanding. It is certainly not for us toanalyse as to which of the three methods is good. What the Court wouldof the Cabinet. The eligibility criteria in the scheme issued in the publicnotice dated 28/09/1992 was that "applicants should have proventrack record in producing television/radio programmes, feature films, videofilms, video magazines, documentary, etc. " Mr. Birbal said that thoughother criteria in the earlier scheme bad been adopted in the present scheme,but not the eligibility criteria. He said the key issue raised by him was notthe validity of the scheme itself, but the process of processing the applications and the allotment of time slots. He said the satellite channels werelaunched to fight the invasion of foreign channels and commercial runningof channels, i. e. , independent running and the earning of revenue. He saidboth these twin objects could not be realised by the first come first servedmethod. He said the allotment should be merit oriented and then auctioned. and for merit internal and external norms could be fixed. He said if perchance the first man in the FCFS scheme had no experience or resources hemight run away or black market the time by selling it to another person onpremium. A some sort of precerisorship was a must to save the viewersfrom dirty programmes, Mr. Birbal said that number of persons after takingtime slots on metre channel in the earlier scheme, who came first in thequeue, ran away and Doordarshan had to go for some other programmeswhich were atrocious. He said there was no reason why Doordarshan shouldnot learn from past experience and again resort to trial and error method. Mr. Birbal said that it was strange that there look into is whether there hasbeen application of mind in choosing a particular method particularly keep-ing in view that best programme is available for the viewers and publicrevenue does not suffer. Whether a producer will be able to earn some profit and also earn fame in the bargain by adopting a particular method, hewill himself be the best judge. It is true that when certain events happensubsequently after a policy decision is taken those events may not be takeninto consideration to judge the validity of the policy. Whether a producer will be able to earn some profit and also earn fame in the bargain by adopting a particular method, hewill himself be the best judge. It is true that when certain events happensubsequently after a policy decision is taken those events may not be takeninto consideration to judge the validity of the policy. But here the case isdifferent. By themselves watching the subsequent events the respondentschanged its policy. These events also informed the respondents of tremendous response of the public to the scheme. When those events still existedthe respondents again went back to its original policy putting a questionmark on their conduct. Arbitrariness and non-application of mind its writlarge on the face of it. When a policy is framed it should be kept in mindas to how best it can be implemented. A public body cannot close its mindto the consequences that may result in enforcing a scheme. Respondents herehave not acted reasonably. ( 43 ) MR. Raj Birbal appearing for Bennett, Coleman and 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 givena go-by in the present scheme when the earlier scheme had the backing wasno 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 renewal of theirlicences under the scheme. ( 44 ) MR. Sibal appearing for the Hindustan Times Limited did notwholly agree with Mr. Raj Birbal. He said he was not for pre-selection orpre-view and if the Government wanted that there should be no control, thenthere should be no control and this was a policy decision which he said couldnot be challenged. What Mr. Sibal sought to project was that to say thatpre-selection and pre-view should not be there, was different from saying thatthere should be short listing of persons with a proven track record capableof putting up programmes in the entertainment channel. Mr. Sibal said whileexamining the validity of the policy and the scheme the Court must look atthe issue from the point of view of public which ultimately is the beneficiaryof all programmes. It is the right of the general public and not that of theenterpreneur of the Government. Mr. Mr. Sibal said whileexamining the validity of the policy and the scheme the Court must look atthe issue from the point of view of public which ultimately is the beneficiaryof all programmes. It is the right of the general public and not that of theenterpreneur of the Government. Mr. Sibal said that the principle of 'firstcome first served' was applicable only in such situations where the recipientof the distribution of the largess was entitled to refuse to deal in the saidcommodity, and that it applied only to such cases involving the Governmentand the vendee where the vendee bad the absolute right in discretion to dealwith the commodity in the manner it liked and the public was entitled notto purchase the said commodity. He said such a principle was wholly inapplicable to the concept of public broadcasting where the general public hadno right not to view the programme. He said if it was an import licence thequestion would have been different and the only affected party would be thecompetitor, but here it is the general public. Mr. Sibal said that the presentscheme was unworkable, and. perhaps, auction could have been a bettermethod. He said between FCFS andRandom Number Generation the latterwould be still better as everybody would have a chance there. He cautionedthat it was not for the Court to formulate any method. Mr. Sibal said thatprivatisation of channel was a policy decision and could not bechallenged,but FCFS was the implementation of that policy decision and could bechallenged. He said short listing was not pre-selection, and even grading isa way of short-listing FCFS could work only if the demands were less andslots were more which was not the case here, so Mr. Sibal put in. Mr. Sibalsaid that the FCFS method as envisaged will result in black marketing oftime slots by unscrupulous licensees which will be at the cost of the publicrevenue as well as sufferings of the viewers. Mr. Sibal said that the presentpolicy was uncostitutional because treated unequal equally, was a gainst public policy, ignored merit and did not formulate any eligibility criteria and hadno 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 thescheme tended to create monopoly in the hands of few. The policy sought beimplemented, he said, did not take in account that the nature of commodityto be distributed arid its possible impact on the general public. He said thescheme was also bad because it allowed an individual or entity to block theentire channel by securing the Govt. with a bank guarantee of Rs. 10 lakhs. It was also bad because different companies with common directors couldbold half-hour slots and exceed the maximum available time of one-hourslot to one entity. The policy as it stands promotes trafficking in licencesand fails to address itself to the consequences and the policy to be adoptedin the event a particular programme fails. Mr, Sibal also said that entertainment had not been defined anywhere in the scheme and it could be that anyperson buying the time slot for entertainment channel could put up any programme which might be meant for sports channel or enrichment channel. But then entertainment is a -word use in common parlance. It is not necessarily confined to shows, performances, films, etc. One person may find aprogramme interesting or amusing, the other may not. Similarly for some acricket match or a soccer match may provide entertainment but the samemay not be the liking of others. It is difficult to lay down any parameteras to what programmes can be telecast on entertainment channel. Therecannot be water tight compartment for all the different five channels. Preception differ from person to person. When the scheme is unworkable, Mr. Sibal said, it would be arbitrary, unjust, unfair, and in this connection hereferred TO to a decision of the Supreme Court in M/s. Orissa Cement Limited v. Union of India, (1962) Suppl. 3 S. C. R. 837. In this case there was a certainscheme under the Provident Funds Act, 1952, for the establishments of theprovident Fund. The scheme provided for contribution by the employer tothe provident fund at 12 of the basic wages and dearness allowance, andit was to be borne equally by the employer and the employee. It was theemployer who was to pay the whole of it in the first instance and half of theamount paid by him on account of the employee was to be recouped by himby deducting the same from the wages of the employee. It was theemployer who was to pay the whole of it in the first instance and half of theamount paid by him on account of the employee was to be recouped by himby deducting the same from the wages of the employee. The scheme wasmodified whereby all employees even of the contractor who were directlyconnected with any manufacturing process carried out in a factory or establishment were also covered under the scheme. Again the scheme wasmodified and the effect was that there was no distinction between the workmen employed by the contractors who were directly connected with themanufacturing process in the factory or establishment, and those who werenot so connected. This was challenged, the Court said the latest notificationwas unconstitutional and void. The Court further said that though thescheme was well designed to carry out the intentions of the Provident Fundsact in its application to workmen directly employed, but it broke down inextension to contract labour as in that case the employer would not be ableto recoupe the share of the contribution of the employee. The Court saidthat the scheme operated unfairly and harshly on persons who employedcontract labour and that if further resulted in discrimination between thosewho employed contract labour and those who employed direct labour. Thecourt, therefore, held that the scheme could not be said to be reasonable andmust 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. ( 45 ) MR. Sibal then said F. C. F. S. was also arbitrary on the groundthat 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-hoursduty with three shifts outside the Doordarshan office for forming queue onemonth in advance and meet their expenses. Other persons may not be inthat position and may not be also in a position to stand in queue for such along period. He said only 52 persons first in the queue would get the timeslots and 53rd person would be denied. Then those persons would advancetheir claim of renewal as well. Mr. Other persons may not be inthat position and may not be also in a position to stand in queue for such along period. He said only 52 persons first in the queue would get the timeslots and 53rd person would be denied. Then those persons would advancetheir claim of renewal as well. Mr. Sibal queried how could it be that whena queue is formed on a particular day the 53rd man is denied his right ofconsideration. He said the FCFS was per se arbitrary. In support of bissubmissions Mr. Sibal REFERRED TO to a decision of the U. S. Supreme Court inred Lion Broadcasting Co. Inc. etc. v. Federal Communication Commission,395 US 367. In this case the question was about the validity of the Federalcommunications Commission (constituted under the Federal Commissionact) which required the broadcasters to offer to an individual personallyattacked in broadcasts, a reasonable opportunity to respond over thelicensee's facilities. Before 1927 the allocation of frequencies was leftentirely to the private sector and the result was chaos. Various conferenceswere held and it was resolved that regulation of the radio spectrum by thefederal Government was essential and that regulatory power should beutilised to ensure tha. t allocation of this limited resource would be made onlyto those who would serve the public interest. The Federal Radio Commissionwas established to allocate frequencies among the competing applicants in amanner responsive to the public "convenience, interest, or necessity. "licence to broadcast do not confer any ownership of designated frequencies,but only the temporary privilege of using them. During the course ofdiscussion, the U. S. Supreme Court said :"because of the scarcity of radio frequencies, the Governmentis permitted to put restraints on licensees in favour of others whoseviews should be expressed on this unique medium. But the peopleas a whole retain their interest in free speech by radio and theircollective right to have the medium function consistently with theends and purpose of the First Amendment. It is the right of theviewers and listeners, not the right of the broadcasters, which isparamount". ( 46 ) MR. Arun Jaitley, appearing for Indian Express News-papers (Born.)Ltd. (CWP 3403/93) said that the object of the impugned scheme was to freet. V. channels from the State control and to attract best talent. He saidf. C. F. S. had no nexux to the object sought to be achieved by the scheme. Mf. ( 46 ) MR. Arun Jaitley, appearing for Indian Express News-papers (Born.)Ltd. (CWP 3403/93) said that the object of the impugned scheme was to freet. V. channels from the State control and to attract best talent. He saidf. C. F. S. had no nexux to the object sought to be achieved by the scheme. Mf. Jaitley said that the quality considerations as laid down by the A. T. C. I. were kept aside and so also the eligibility criteria. There have to becontrols on the qualitative aspects of the programmes which the applicantsseek to telecast, a media which was most powerful and effective for dissipating knowledge and information. Mr. Jaitley said laying of qualifications forselecting the prospective licensees was must. He said the credibility ofdoordarshan programme has already declined to abysmal depth and anyuncheck grant of licences would only aggravate the situation. We do notthink Mr. Jaitley is right here. As noted above, it is only the best programmewhich would survive and will generate revenue for the, licensees by gettingmore advertisements. Guidelines are laid in the scheme and, as noted above,there are checks and controls which will motivate the licensee to come outwith best possible programme and any deviation from the right path will expose him to a great risk. Mr. Jaitley also said that random numbergeneration 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, Jaitleysaid that right to knowledge is inherent in Article 19 (1 ) (a) and thatwhosoever desires to exercise that right must undergo stricter test. Insupport of his submission Mr. Jaitley REFERRED TO to a few decisions of thecourts, but because of the view which we have already taken on the F. C. F. S. basis it is not necessary for us to refer to the same. ( 47 ) MR. Vaidhyanathan, appearing for Indus Television (C. W. P. No. 3376/93) REFERRED TO to the impracticability of the allotment of time slotsas given in the scheme. He said unequals have been treated with equals. Persons having special knowledge in the field have been lumped togetherwith those having no experience whatsoever. Mr. Vaidbyanathan said thatwhen the demand exceeded supply the selection method should have beenresorted to and the scheme presently adopted by the respondents was intotal negation of the principle of Article 14 of the Constitution. He saidf. Persons having special knowledge in the field have been lumped togetherwith those having no experience whatsoever. Mr. Vaidbyanathan said thatwhen the demand exceeded supply the selection method should have beenresorted to and the scheme presently adopted by the respondents was intotal negation of the principle of Article 14 of the Constitution. He saidf. C. F. S. basis has assumed that everybody will get the time slots whichwould not be so in the present case. He said there should have been twostages: (1) elimination; and (2) selection; and in the second stage these timeslots could have been auctioned. Mr. Vaidbyanathan said it was a casewhere a committee should have been constituted of persons having expertknowledge in the field to advise the Government. He saw no reason whythe recommendations of the A. T. C. I. have been ignored by the respondents. F. C F. S. , according to Mr. Vaidhyanathan, was full of mischief. Again,because of the view which have taken on allotment of time slots on F. C. F. S. basis as well as on random number generation it is not necessary for us torefer to arguments of the Counsel in any further detail. ( 48 ) WE do not think the petitioners are right when they contend that there should be an eligibility criteria, or the credential of the applicant should be based on his, proven track record. As Dr. Gupta described electronic media is under going a process of explosion. The respondents areright in their submission that it is difficult to lay down parameters of a trackrecord. It is a new experiment. Guidelines have been laid. There arechecks and controls. We also do not find much difference between preselection and proven track record. The conditions in the present scheme arequite tough and respondents say only the best will be able to match anyservice. This is how the respondents put in :"an applicant is required to submit a substantial bank guarantee. 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 costsand the fees. A low grade or mediocre production will almostnecessarily have poor viewership and will not be able to exploit thecommercial time. Thus only attractive viewer acceptable programmes will survive. The Scheme will ensure good quality vieweracceptable programmes. The viewer and viewer alone will be theultimate judge. He will have to attract sponsors and advertisers to cover his costsand the fees. A low grade or mediocre production will almostnecessarily have poor viewership and will not be able to exploit thecommercial time. Thus only attractive viewer acceptable programmes will survive. The Scheme will ensure good quality vieweracceptable programmes. The viewer and viewer alone will be theultimate judge. The method of selection is, it is respectfullysubmitted, reasonable. "'in short, the respondents contend it is a case of survival of the fittest withover 100 satellite channels crowding the Indian kies in very near future. Respondents are right when they say that howsoever chosen, a tremendousamount of flexibility should be available to a licensee. The programmesneed not be based on the personal artistic talents of the licencee. The licenceecan 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 him or acquirebroadcasting rights over productions made by others in the country orabroad. The contents of the programmes can be widely different such ascartoons, serials, quiz programmes and competitions, magic shows, circusevents, fashion shows, interviews, games and so on. The possibilities arelimitless and imagination is the only limit. It may be pointless to speak aboutpast experience of the licencee in this context. It does not need a doctor toset up a hospital, a teacher to set up a school or an engineer to set up anindustry. It is very difficult in this situations to apply any objective test todetermine an acceptable applicant and eliminate one who is not. Seriousdifferences of opinion are likely and any choice made by any person is vulnerable to allegations of favour. Perceptions of what is good entertainment issubjective and each of us have our own views. Any choice at the thresholdon the basis of past performance has the tendency to create monopolies andto inhibit new entrants in the field. Stand of the respondents is correct thatto pre-view, understand and decide the quality of programme would be agigantic task and difficult to perform. ( 49 ) THUS, if the respondents have reached a decision that there shouldnot be any pre-view or pre-selection, no fault could be found with it. Perhaps,the petitioners would not have raised such a plea themselves if they were sureof allotment of time slots to them. ( 49 ) THUS, if the respondents have reached a decision that there shouldnot be any pre-view or pre-selection, no fault could be found with it. Perhaps,the petitioners would not have raised such a plea themselves if they were sureof allotment of time slots to them. It is unnecessary restriction which perhapsnobody would like when ultimately the sole judge is the viewer. We would,therefore, reject the submission of the petitioners that any eligibility conditionwas a must and absence of that would make the scheme invalid. As far asbasis of allotment is FCFS we have already held it is arbitrary and has tobe set aside. ( 50 ) NO case of promissory estoppel or legitimate expectation as contended by Mr. Desai appearing in the writ petition of Home Communicationsnetwork Ltd. (CWP 3104/93) is made out. In this case the petitioner contends that action of the respondents in cancelling/altering the basis of allotment of time slots is illegal. A specific representation was made that theaward of the licence for a time slot would be on FCFS basis. Petitionertherefore, says that on the strength of this representation it altered its position to its detriment. It says it fulfilled all the requisite criteria and securedfifth position in the queue for submitting application and entered into diversearrangement/agreement with Indian and foreign parties with respect to theprogramming to be broadcast. Petitioner in this case further says that itmade huge financial commitments to the tune of Rs. 2. 78 crores in respect ofthe entertainment channel and already incurred an expense of about Rs. 17lakhs in connection with the Metro Channel. We do not think that on suchaverments any case of promissory estoppel or legitimate expectation is madeout. 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 areafter the date of the queue which was stated to have been formed outside theoffice 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 theaudiences in media. But for these two letters there is nothing on record tosupport what the petitioner contends. We also do not know these twoletters were in response to what the petitioner represented or wrote. 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 theaudiences in media. But for these two letters there is nothing on record tosupport what the petitioner contends. We also do not know these twoletters were in response to what the petitioner represented or wrote. In anycase such type of exercise has to be made by any party who would like tohave time slots on Doordarshan channel. Though the petitioner says it fulfilled all the criteria as laid in the scheme but there is no mention if on 23/06/1993 when it secured its position in the queue it was having all- thepapers to be submitted with the application which consisted of the mainapplication, the bank draft of the processing fee, bank guarantee, a declaration duly notorised and also an indemnity bond duly notorised. Simply byscoring a position in the queue formed voluntarily by few people without anyauthority of the respondents a few days earlier to the date of the applicationwould not advance the case of the petitioner Rather in the absence of all therelevant documents with the applicant in the queue we would say his positionwould not be bona fide. The queue if formed should be of the bona fide persons having along with all the documents to be submitted at the time ofreceipt of applications.