K. M. NATARAJ v. STATE OF KARNATAKA — 1996 DIGILAW 108 (KAR)

P. VISHWANATHA SHETTY, J. ( 1 ) THESE two petitions are presented as public interest litigation by the lovers of the game of cricket, who are practising advocates before this Court and who are interested in viewing the Wills World Cup' Cricket, 1996. Though in these petitions they have prayed for a direction to the respondents not to apply power cut/ load shedding during the telecast hour of the 'wills World Cup' Crieket, 1996, commencing from l4th February, 1996 to l7th March, 1996; at hearing of the petitions Sri S. P. Shankar, learned counsel along with Sri M. Sudhakar Pai, appearing for the petitioners in W. P. No. 3292/96 (hereinafter referred to as the 'learned counsel for petitioners') and Sri Madan Mohan M. Khannur and Sri Ramakanth v. Shinde, Advocates appearing in person (hereinafter referred to as the 'petitioners') submitted that they would confine their relief in these petitions only for a direction to the respondents for reschedule of power cut/ load shedding during the cricket telecast hours. ( 2 ) SRI S. P. Shankar, learned counsel for the petitioners and the petitioners submitted that the power cut notified by the respondents, if it is given effect to during the telecast hours of the 'wills World Cup' Cricket, 1996, commencing from l4th February, 1996 to l7th March, 1996, it would seriously affect their right to information guaranteed under Art. 19 (1) (a) of the Constitution of India and the said right cannot be infringed except by imposing reasonable restrictions as provided under sub-clause (2) of Art. 19 of the Constitution of India. They submitted that the freedom of speech and expression guaranteed under Art. l9 (1) (a), guarantees the right to information and right to receive knowledge through electronic media relating to telecast of 'wills World Cup' Cricket, 1996. It is submitted that imposition of power cut or depriving the public of their right to view the telecast of 'wills World Cup' Cricket, 1996, which is a mega event, without properly rescheduling the timings relating to power cut to enable the public to view the World Cup Cricket would amount to depriving the citizens of this country who are residing in this State, the right to freedom of information guaranteed to them under Art. 19 (1) (a) of the Constitution of India. It is also urged that if for any reason, the direction as sought for by the petitioners cannot be granted, at least a direction may be given to the respondents to adhear to the proposal made by the second respondent to reschedule the supply of electricity as per the notification issued, which has been published in the local dailies on 13-2-1996, the copy of which has been made available by the learned senior counsel appearing for the second respondent-K. E. B. to the Court. ( 3 ) IN support of the contention that imposition of power cut would seriously affect the right guaranteed under Art. 19 (1) (a) of the Constitution of India, the learned counsel for the petitioners, relied upon a decision of the Supreme Court in the case of Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal reported in AIR 1995 SC 1236 , wherein the Supreme Court has taken the view that the freedom of speech and expression includes right to acquire information and disseminate it, and broadcasting is a means of communication, and sports is an expression of self. In the background of the submission made by the learned counsel for the petitioners, it may be useful to extract the relevant portion of paragraph 17 of the judgment, cited supra, which reads as follows :"17. It will be apparent from the contention advanced on behalf of MIB that their main thrust is that the right claimed by the BCCI/ CAB is not the right of freedom of speech under Art. 19 (1) (a), but a commercial right or a right to trade under Art. l9 (1) (g ). The contention is based mainly on two grounds viz. , there is no free speech element in the telecast of sports and secondly, the primary object of the BCCI/ CAB in seeking to telecast the cricket matches is not educate and entertain the viewer but to make money. It can hardly be denied that sport is an expression of self. In an athletic or individual event, the individual expresses itself through its individual feat. In a team event such has cricket, football, hockey etc. , there is both individual and collective expression. It may be true that what is protected by Art. 19 (1) (a) is an expression of thought and feeling and not of the physical or intellectual process or skill. In a team event such has cricket, football, hockey etc. , there is both individual and collective expression. It may be true that what is protected by Art. 19 (1) (a) is an expression of thought and feeling and not of the physical or intellectual process or skill. It is also true that a person desiring to telecast sports events when he is not himself a participant in the game, does not seek to exercise his right of self expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed, entertained. The former is the right of the telecaster and the latter that of the viewers. The right to telecast sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that the free speech element is absent from his right. The degree of the element will depend upon the character of the telecaster who claims the right. An organiser such as the BCCI or CAB in the present case which are indisputably devoted to the promotion of the game of cricket cannot be placed in the same scale as the business organisations whose only intention is to make as large a profit as can be made by telecasting the game. Whereas it can be said that there is hardly any-free speech element in the right to telecast when it is asserted by the latter, it will be a warped and cussed view to take when the former claim the same right, and contend that in claiming the right to telecast the cricket matches organised by them, they are asserting the right to make business out of it. The sporting organisation such as BCCI/cab which are interested in promoting the sport or sports are under an obligation to organise the sports events and can legitimately be accused of failing in their duty to do so. The promotion of sports also includes its popularisation through all legitimate means. For this purpose, they are duty bound to select the best means and methods to reach the maximum number of listeners and viewers. The promotion of sports also includes its popularisation through all legitimate means. For this purpose, they are duty bound to select the best means and methods to reach the maximum number of listeners and viewers. Since at present, radio and TV are the most efficacious methods, thanks to the technological development, the sports organisations like BCCI/cab will be neglecting their duty in not exploring the said media and in not employing the best means available to them to popularise the game. That while pursuing their objective of popularising the sports by selecting the best available means of doing so, they incidentally earn some revenue, will not convert them either into commercial organisations or the right claimed by them to explore the said means, into a commercial right or interest. "the petitioners in W. P. No. 3460/96 further submitted that during January, 1996, at the Sports Meet conducted by the second respondent Board at Hubli, there was continuous supply of power and, even though according to the respondents, there was shortage of power and the second respondent was in control of the supply of power, it relaxed the power cut for their benefit. In this connection, he brought to my notice a news item published in Prajavani daily on 26-1-1996, and on the basis of the news publication, the petitioners submitted that the second -respondent without any basis or reason, applied power cut indiscriminately to suit its convenience and in that situation, it is just and proper to direct the second respondent to reschedule the timings relating to supply of electricity during the "wills World Cup' Cricket, 1996. ( 4 ) SRI Sundaraswamy, learned Sr. Advocate, appearing along with Sri N. K. Gupta, for the second respondent, submitted that imposition of power cut notified by the second respondent does not in any manner interfere with the right to expression or right to information guaranteed to the petitioners or any other citizens of this country under Art. 19 (1) (a) of the Constitution of India. Advocate, appearing along with Sri N. K. Gupta, for the second respondent, submitted that imposition of power cut notified by the second respondent does not in any manner interfere with the right to expression or right to information guaranteed to the petitioners or any other citizens of this country under Art. 19 (1) (a) of the Constitution of India. He submitted that the first respondent in exercise of power conferred on it under S. 22-B of the Indian Electricity Act, 1990 (hereinafter referred to as the Act) has issued a notification dated 26-10-1995 regulating the supply of electricity in the State of Karnataka, and the said notification issued by the State has not been challenged by the petitioners; there is no infirmity or illegality committed by the first respondent in issuing notification dated 26-10-1996, regulating the supply of power in the State; and so long as the said notification issued by the first respondent regulating the supply of power holds the field, it is not permissible for the petitioners to seek for reschedule of supply of electricity on any ground. He further submitted that the decision taken by respondents-1 and 2 in the matter of imposition of power cut is neither arbitrary nor unreasonable, and the first respondent has been compelled to issue notification dated 26-10-1995 imposing power cut and regulating supply of electricity on account of the acute shortage of power in the State, and respondents-1 and 2 being fully conscious of the requirement of its people for supply of power, and proper distribution of the same have applied power cut on account of circumstances beyond their control and in public interest. In this connection, the learned Sr. Advocate took me through the statements made by the second respondent in paragraphs 5, 6, 7, 9 and 10 of the Statement of Objections. ( 5 ) IT is the case of the second respondent that it is discharging its duty in the matter of supply of electricity within the State in a most efficient and economic manner, and the number of consumers to whom the Board is required to cater is of the order of 65. ( 5 ) IT is the case of the second respondent that it is discharging its duty in the matter of supply of electricity within the State in a most efficient and economic manner, and the number of consumers to whom the Board is required to cater is of the order of 65. 16 lakhs and the quantum of power required to be supplied to them is about 60 million units per day, and as against this requirement, the total power available to the Board for supply is about 44 million units per day; and there is thus a shortfall of about 16 million units of power per day and in view of this large deficiency in the availability of power, the State had to take recourse to rationing to the industrial sector including the HT/ LT consumers and to load shedding, and such rationing would have originally to be extended also to other sectors including the domestic and irrigation consumers; and with a view to avert the consequent hardship to lakhs of consumers in these sectors by avoiding rationing in their cases, power shut down for a few hours has been done. The details of the availability of power required by the consumers has been set out in paragraph 5 of the Statement of Objections which reads as follows :" Per daya) Total power available for distribution by the Board from all its sources (including its share from the CGS) : 44 Million Unitsb) Requirement of consumers : 60 "c) Deficit : 16 "d) No. of consumers to whom power / energy cut is applied : 2. 66 lakhse) No. of consumers who are not subjected to cut/ rationing : 62. 5 lakhs f) Load shedding hours : Two hours in the morning and one hour in the eveningg)Extent of saving of power by the Board by recourse to rationed Power supply and load shedding : 15 Million Units per day" ( 6 ) IT is further stated that the power generation in the State is predominantly from Hydro Electric Power Stations and they form 70% of the total installed capacity in the State; and due to failure of mansoon in the catchment areas, the Linganamakki Reservoir feeding "bhadravathi Generating Station" and Supa. Reservoir feeding "nagajhari Power House" were nearly half to two thirds empty; and the per centage storage and the equivalent energy availability therefrom as in November, 1994 and November, 1995, has been set out in paragraph-6 of the Statement of Objections which reads as follows : Year Percentage Storage Equivalent Energy in M. U. a)Linganamakki 199555. 862,540reservoirfeeding 199493. 154,235sharavathyb) Supa1995 33. 78 980reservoirfeeding199492. 812,773nagjhari ( 7 ) SRI Sundaraswamy further submitted that the details set out by the second respondent in the Statement of Objections with regard to the shortage of power supply, would make it clear that all effective measures have been taken by the respondents in the matter of equal distribution of power supply to various sectors; and so long as the action taken by the first respondent in issuing notification dated 26-10-1995 cannot be termed as highly arbitrary and unreasonable or violative of the right guaranteed to the petitioners under Art. 14 of the Constitution of India, it is not permissible for the petitioners to seek for directions from this Court to the respondents directing either not to impose power cut or to reschedule the timings. He further submitted that the notification dated 26-10-1995 issued by the first respondent, and the consequent power cut imposed is administrative decision taken by the respondents having regard to the public interest and having regard to the availability of power in the State; and the decision taken by the respondents is policy decision and this Court in exercise of its power under Art. 226 cannot give a direction to the respondents to alter its policy decision. In support of this contention, he drew my attention to the decision of the Supreme Court in the case of G. B. Mahajan v. The Jalgaon Municipal Council reported in AIR 1991 SC 1153 and Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth reported in (1984) 4 SCC 27 : ( AIR 1984 SC 1543 ). He further submitted that the respondents must be left with wide discretion in the matter of management or equal distribution of power having regard to its availability, and this Court cannot exercise its extraordinary power under Art. 226 of the Constitution of India as the consequences of this Court substituting its views would be serious. He further submitted that the respondents must be left with wide discretion in the matter of management or equal distribution of power having regard to its availability, and this Court cannot exercise its extraordinary power under Art. 226 of the Constitution of India as the consequences of this Court substituting its views would be serious. So far as Sri Shankar's request that if this Court cannot direct the respondents to reschedule the timings, the respondents may be at least directed to adhere to the proposal made by them to reschedule the supply of electricity as per the publication issued by them on 13-2-1996, Sri Sundaraswamy submitted that the paper publication notifying the revised load shedding hours in the morning and in the afternoons is only a proposal, and the respondents must have discretion and right to suitably alter the same depending upon the availability of power and other relevant factors, and therefore, there is no justification even to grant the said prayer. ( 8 ) SRI Udayashankar, learned Additional Government Advocate, while supporting the submissions made by Sri Sundaraswamy, submitted that the petitioners have no right to seek for continuous supply of electrical energy or reschedule of the supply of electrical energy. Their right if at all can only be termed as right to enjoy electrical supply along with the other members of the general public. They do not have a greater right than the other members of the general public. Therefore, he submitted that the petitioners are not entitled for the relief sought for by them in these petitions. ( 9 ) IN view of the rival contention advanced on behalf of the petitioners and the respondents, the question that would arise for my consideration is as to whether the petitioners are entitled to seek for a direction to the respondents to reschedule the timings of supply of electricity, so that there shall not be no power cut during the telecast hours of "wills World Cup" Cricket, 1996, during the period commencing from l4th February, 1996 to l4th March, 1996. ( 10 ) THERE is no doubt in my mind that all the petitioners are the lovers of cricket and they have filed these petitions in the public interest. ( 10 ) THERE is no doubt in my mind that all the petitioners are the lovers of cricket and they have filed these petitions in the public interest. However, I am of the opinion that they are not entitled for the reliefs sought for by them in these petitions, and these petitions are liable to be dismissed on three grounds. ( 11 ) FIRSTLY, on the ground that so long as the notification dated 26-10-1995 issued by the first respondent in exercise of powers conferred on it under S. 22-B of the Act remains unchallenged, it is not permissible for the petitioners to seek for a direction either to lift the power cut or rescheduling of the timings of power cut. Admittedly, the petitioners have not challenged the said notification wherein the first respondent had notified the rescheduling of supply, consumption or use of the electrical energy. Under S. 22-B of the Act, the State is conferred with the power to regulate the supply, distribution, consumption or use of power and equitable distribution of energy in the State. Therefore, it is not permissible for the petitioners to seek the relief sought for by them in these petitions. ( 12 ) SECONDLY, it is the case of the respondents in the Statement of Objections that there is acute shortage of power in the State and therefore, with a view to provide equal distribution of power taking into account the need of various areas and sectors of consumption, the respondents have resorted to regulate the supply. The petitioners in Writ Petition No. 3292/96, in paragraph 5 of their petition also have fairly admitted that there is acute shortage of power. From the details furnished by the second respondent in the Statement of Objections with regard to the power position in the State, and also having regard to the admission of the petitioners that there is shortage of power in the State, it appears to me that the decision taken by the respondents to regulate the power supply in the manner it has been done is, fair, reasonable and it has been done in the larger interest of public, and it cannot be termed either as unreasonable or arbitrary or violative of the rights guaranteed to the petitioners under Art. 14 of the Constitution of India. ( 13 ) THIRDLY, these petitions also must fail on the ground that in a matter like this, if the respondents having regard to the availability of powers in the State, had taken a policy decision to impose power cut and regulate the supply of electricity, it is not permissible for me to interfere with the said decision and direct the State either to lift the power cut imposed or reschedule the timings. As rightly contended by Sri Sundaraswamy, wide discretion must be left to the respondents to decide as to how they should manage the power position having regard to the availability of the same and the need of its people. It is not permissible for me to substitute my views and thinking. In this connection, it is useful for me to refer to the decision in the case of G. B. Mahajan ( AIR 1991 SC 1153 ) cited supra, wherein at paragraph 14, the Supreme Court has laid down as follows :"the criticism of the project being 'unconventional' does not add to or advance the legal contention any further. The question is not whether it is unconventional by the standard of the extent practices, but whether there was something in the law rendering it impermissible. There is, no doubt, a decree of public accountability in all governmental enterprises. But, the present question is one of extent and scope of judicial review over such matters. With the expansion of the State's presence in the field of trade and commerce and of the range of economic and commercial enterprises of Government and its instrumentalities there is an increasing dimension to governmental concern for stimulating efficiency, keeping costs down, improved management methods, prevention of time and cost over-runs in projects, balancing of cost against timescales, qualiy control, cost benefit ratios etc. In search of these values it might become necessary to adopt appropriate techniuqes of management of projects with commitant economic expediencies, these are essentially matters of economic policy which lack adjudicative disposition, unless they violate constitutional or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This again is the judicial recognition of administrator's right to trial and error, as long as both trial and error are bona fide and within the limits of authority. This again is the judicial recognition of administrator's right to trial and error, as long as both trial and error are bona fide and within the limits of authority. We might recall the memorable words of what Justice Brandeis said:"the discoveries in physical science, the triumphs in invention, attest the value of the process of trial and error. In large measure, these advances have been due to experimentation. . . . . . . . . . . . "". . . . . . . . . . . . . . There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. . . . . . . . . . ""to stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consquences to the Nation. It is one of the happy incidents of the federal system that single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. . . . . . . . . . . " ". . . . . . . . But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. . . . . . . " (See: New State Ice Company v. Ernest A. Liebmann, (1932) 285 US 262 at 310-11 Dissenting opinion of Brandies, J.)In regard to Courts and police we might recall the following words of a learned author: "the Courts are kept out of the lush field of administrative policy, except when policy is inconsistent with the express or implied provisions of a statute which creates the power to which the policy relates or when a decision made in purported exercise of a power is such that a repository of the power, acting reasonably and in good faith, could not have made it. In the latter case, "something overwhelming' must appear before will intervene. That is, and ought to be, a difficult onus for an applicant to discharge. The Courts are not very good at formulating or evaluating policy. In the latter case, "something overwhelming' must appear before will intervene. That is, and ought to be, a difficult onus for an applicant to discharge. The Courts are not very good at formulating or evaluating policy. Something when the Courts have intervened on policy ground, the Court's view of the range of policies open under the statute or of what is unreasonably policy has not won public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism. In the world of politics, the Court's opinions on policy are naturally less likely to reflect the popular view than the policies of a democratically elected Government or of expert administrators. . . . . . ""the considerations by reference to which the reasonableness of a policy may be determined are rarely judicially manageable. . . . . . . . " Further, in the case of Maharashtra State Board of Secondary and Higher Secondary Education cited supra, ( (1984) (4) SCC 27) at page 4 : ( AIR 1984 SC 1543 at p 1551) in paragraph 16 of the Judgment the Supreme Court has observed as follows:"in our opinion, the aforesaid approach made by the High Court is wholly incorrect and fallacious. The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enacatment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effecuate the purposes of the Act. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effecuate the purposes of the Act. The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsisent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution. "therefore, I am of the view that it is not permissible for me to interfere with the policy decision taken by the State by issuing Notification dated 26-10-1995 regulating the imposition of power cut/regulating the supply of power, which is being implimented by the second respondent. ( 14 ) SO far as the contention of Sri Shankar that right to information and right to acquire knowledge about the game of Cricket through electronic media is a right guaranteed to the petitioners under Art. 19 (1) (a) of the Constitution of India is concerned, there cannot be any dispute on this proposition, and the decision in the case of 'secretary Ministry of Information and Broadcasting and others' cited supra, supports the contention of Sri Shankar. However, I am of the view that the said decision has absolutely no bearing on the facts of the present case and the nature of the right sought to be enforced by the petitioners. That was a case where the right of the Cricket Association to telecast the sporting event came up for consideration before the Supreme Court, and in that background the Supreme Court took the view that the promotion of sports also includes its popularisation through all legitimate means like Radio and Television. That is not the position in the present case. As stated earlier, the first respondent-State in the exercise of its power under Section 22b of the Act had issued notification dated 26-10-1995 regulating supply of power in the State. That is not the position in the present case. As stated earlier, the first respondent-State in the exercise of its power under Section 22b of the Act had issued notification dated 26-10-1995 regulating supply of power in the State. Therefore, I do not find any merit in the contentions of Sri Shankar that the power cut imposed by the State or refusal to reschedule the supply of electricity during the telecast hours of "wills World Cup", 1996, entirely deprives the petitioners or others, of their right to information guaranteed to them under Art. 19 (1) (a) of the Constitution. Even otherwise, I am of the opinion that the restrictions imposed in regard to the use of power by virtue of the notification dated 26-10-1995 issued by the respondent state in exercise of its powers under Section 22b of the Act must be considered as reasonable restriction imposed within the meaning of Art. 19 (2) of the Constitution. Further, as rightly pointed out by Sri Udayashankar, the petitioners do not have a higher or better right than other members of the public who are consuming electricity and whose rights are also affected on account of the power cut/reschedule of supply of electricity introduced by the respondents. On this ground also, the petitioners are not entitled for the relief. ( 15 ) SO far as the additional contention of the petitioners in W. P. No. 3468/96 that the second respondent had relaxed the power cut during the sports meet in Hubli organised by the second respondent and therefore, there should not be any difficulty for the second respondent to reschedule the supply of elecricity as prayed for by the petitioners is concerned, it is unnecessary for me to go into the correctness of the said statement made by the petitioners relying upon a paper publication, a copy of which has been produced as Annexure-C, on the short ground that if the second respondent having regard to the availability of power during the month of January, 1996, had relaxed the power cut in the month of January, 1996, it will not give any right to the petitioners to seek for a direction to regulate the power cut during the telecast hours of "wills World Cup Cricket. 1996, as sought for by the petitioners. 1996, as sought for by the petitioners. Further, even if the action of the second respondent in relaxing the power cut during the sports meet organised is arbitrary or illegal, that will not give any right for the petitioners to seek for direction before this Court to regulate the power cut or reschedule supply of electricity in exercise of my power under Article 226 of the Constitution of India, so long as there is a shortage of power in the State, as made out by the respondents. ( 16 ) WITH regard to the submission of Sri Shankar that the respondents may atleast be directed to adhear to the proposal made for rescheduling of supply of electricity as per the notification published in the local daily dated 13-2-1996 is concerned, I am of the view that it is not permissible for me to direct the respondents to stick to the reschedule of supply of electricity as notified in the paper publication referred to above. The respondent-K. E. B. must be left with the discretion to suitably alter the timings having regard to the availability of power and need of the other consumers. The fact that the respondent K. E. B. has come forward with a proposal is a clear indication that earnest efforts are being made by the respondents to respond to the sentiments expressed by the petitioners and other lovers of the game of Cricket. ( 17 ) FOR the reasons stated above, these petitions are liable to be dismissed. Accordingly, they are dismissed. However, having regard to the facts and circumstances of the case, no orders are made with regard to costs. ( 18 ) HOWEVER, notwithstanding the dismissal of these petitions, I have no doubt in my mind that the "wills World Cup" Cricket, 1996, being a mega event, if the power is available and if it is possible to be made available, the respondents would certainly respond to the public sentiments to reschedule the supply of electricity to enable the public to watch the "wills World Cup" Cricket, 1996. Petition dismissed. --- *** --- .