JUDGMENT Samaresh Banerjea, J.: Can the Prasar Bharati Corporation which is a statutory Corporation and State within the meaning of Article 12 of the Constitution, have unfettered discretion in the matter of its dealings with the citizens in performance of its statutory duties under the Prasar Bharati Act? Can an agreement entered into by the Prasar Bharati Corporation or one of its unit Doordarshan Calcutta (hereinafter referred to as D.D.) with a producer for selling its time slot, for enabling the said producer to telecast its programme, in performance of their statutory duty as enjoined upon them under the Prasar Bharati Act, be purely commercial in nature or does it involve a public element? Would it be of any consequence even if such contract is purely of a commercial nature if the action of the Prasar Bharati while performing its statutory duties affect the right of a producer under Article 19(1)(a) and Article 14 of the Constitution? Would an arbitrary action of a public authority or of State within the meaning of Article 12 of the Constitution in the realm of concluded contract work be amenable to the writ jurisdiction and open to Judicial Review? Can the Prasar Bharati Corporation which is the creature of Prasar Bharati Act and is a State within the meaning of Article 12 of the Constitution in the matter of its dealing with different producer for selling its time slot to enable them to telecast their programmes in performance of its statutory duties under the Act can act like an ordinary merchant guided by profit motive free from the shackle of Article 14 of the Constitution? Is the impugned action of the Prasar Bharati Corporation arbitrary and has affected the right of the appellant under Articles 14 and 19(1)(a) of the Constitution? 2. All these grave questions have been debated by the learned counsels of the parties in the present appeals which have been filed against the order of the trial court dismissing the writ petition, for 17 days. 3. One would have thought some of the above questions have already been settled because of the different decisions of the Supreme Court including the decisions in the cases of Srilekha Vidyarthi, Dwarkadas Marfatia, Delhi State Transport Corporation, Common Cause and also because of coming into operation of the Prasar Bharati Act. 4. 3. One would have thought some of the above questions have already been settled because of the different decisions of the Supreme Court including the decisions in the cases of Srilekha Vidyarthi, Dwarkadas Marfatia, Delhi State Transport Corporation, Common Cause and also because of coming into operation of the Prasar Bharati Act. 4. But that is not to be and because of the ability of the learned counsels for the parties and their ingenuity of submissions it has become necessary for this court to examine the above questions and scrutinise what is the correct position of law. Before going into such question however, for proper appreciation of the issues involved in the present appeals before us, it is first of all necessary to refer to the relevant facts. 5. Both the present appeals which have been heard analogously were preferred by the writ petitioners against the judgment and order dated 16th May, 2000 whereby the trial court dismissed all the four writ petitions which were heard analogously including the present two namely M/s. Softline Multimedia & Anr. vs. Prasar Bharati Broadcasting Corporation of India & Anr. and M/s. H.P.C. Production & Anr. vs. Prasar Bharati Broadcasting Corporation of India & Anr. 6. In fact, the other two writ petitioners namely, Smt. Asima Mukherjee and Sri Joydeep Mukherjee also preferred appeal against the aforesaid judgment and order and all the four appeals were being heard analogously. 7. But in course of hearing of the aforesaid four appeals, the said writ petitioners namely, Sm. Asima Mukherjee and Joydeep Mukherjee did not went to press their appeal any further for which both the appeals were dismissed for non-prosecution. 8. We are, therefore, concerned at present only with the present two appeals. 9. The grievance in both the appeals M/s. Softline and M/s. H.P.C. Production factually and legally, which prompted them to move the writ petition, more or less are same. 10. 8. We are, therefore, concerned at present only with the present two appeals. 9. The grievance in both the appeals M/s. Softline and M/s. H.P.C. Production factually and legally, which prompted them to move the writ petition, more or less are same. 10. Both the writ petitioners admittedly are producers of existing sponsored programme which are being telecast in D.D.-1 (Terrestorial) Channel from Doordarsan, Calcutta between 5-30 p.m. and 6 p.m. of different days of the week and they have challenged the impugned action of the Prasar Bharati Broadcasting Corporation of India (hereinafter referred to as the 'Corporation') dated February 9, 2000 changing the time slot of their respective programmes from 5-30 p.m. to 6 p.m. to 4 p.m. time slot of the same day 'due to different unavoidable programme exigency' mainly on the ground that the same is wholly arbitrary and in gross violation of Articles 14 and 19(1)(a) of the Constitution. 11. So far as M/s. Softline Multimedia is concerned which is a proprietorship concern, admittedly a programme of the said producer initially titled 'Ganer Ashar' subsequently titled 'Ganer Din' is being telecast on DD-1 (terrestorial) Channel from Doordarsan at 5-30 p.m. slot on every Monday. Admittedly the said programme of the said petitioner was duly approved by the Doordarsan, Calcutta after compliance of all the requisite formalities. The proposal for the said musical programme was duly submitted to the appropriate authorities and only after being satisfied about the same the respondents advised the petitioner to submit a pilot episode in U-Matic casette between 90 days and after such casette was duly submitted by the petitioners the same was duly approved by the Review Committee of respondents by letter dated 11th May, 1999 whereby the petitioner was informed that the programme of the petitioner will be aired in the time slot at 5-40 p.m. which, according to the petitioner, is a commercially viable time slot. By the letter dated 11th May, 1999 the respondents while making an offer to telecast at least 26 episodes obtained an unequivocal and express undertaking from the petitioner that they will have given additional revenue to the respondents by way of additional spot buy of 140 second which have to be given over and above to the normal telecast fee. It is not disputed that the normal telecast fee are paid and additional revenue is given by the petitioners as agreed upon. It is not disputed that the normal telecast fee are paid and additional revenue is given by the petitioners as agreed upon. It is the case of the said petitioner that they geared up their resources in order to ensure shooting and completion of the 26 episodes of the said programme for which substantial investment was made and agreement was also entered into with different technicians, artists, technical personnel both on long term and short term basis which are required for completion of 26 episodes also for further episodes which is normally granted and therefore can be legitimately accepted by them. 12. Ultimately they were informed by final letter of allotment dated 31st December, 1999 of the respondent that their programme had been allotted on Monday with effect from 3rd January, 2000 and such programme ultimately come on air on 3rd January, 2000 in the time slot of 5-30 p.m. to 6 p.m. and has been continuing since then without any break. 13. Admittedly thereafter the petitioners also had to enter into a written agreement in a standard proforma with the respondents whereunder the petitioner has been permitted to telecast 26 episodes which would be completed at the end of July, 2000. 14. It is the further case of the petitioner that its programme is a sponsored programme and is therefore wholly dependent upon the commercials which are received as advertisement during the telecast of the programme. 15. Upon such commercials which are received, the economic viability, improvement and continuity of the programme is entire dependent, the writ petitioner are expected to make payment of telecast fees including cost of additional spot buys and other expenditure incurred by the petitioners including reasonable return on investment from the continuity of the programme. It is the further case of the petitioner that since all such sponsored programmes are dependent on commercials, the petitioners made elaborate arrangements and invested substantial amount of money and also entered into short term and long term contracts with advertisers and advertising agencies and employed a number of personnel. It is further specifically asserted that all such steps were taken by the petitioners based upon the particular time slot of 5-30 p.m. to 6 p.m. which has a good viewership and attract good commercials and advertisements. 16. It is further specifically asserted that all such steps were taken by the petitioners based upon the particular time slot of 5-30 p.m. to 6 p.m. which has a good viewership and attract good commercials and advertisements. 16. It is claimed by the petitioner that by its constant efforts its programme 'Ganer Din' in the said time slot has become very popular from the commercial point of view and also of viewership. 17. It is further claimed that success of the programme in the same time slot would imply that all the 26 episodes and future extension thereof would be showed on the same time slot. 18. By the impugned communication dated 9th February, 2000 being annexure 'e' to the writ petition the petitioner was informed by the respondents that due to unavoidable programme exigencies the programme of the writ petitioners currently running at 5-30 p.m. slot on Monday DD-I (Regional) will be shifted to 4 p.m. slot on DD-1 (Regional), same day and this change is effective with immediate effect. 19. It is the case of the petitioner that immediately thereafter they met the Station Director as also the Assistant Director of Doordarsan, Calcutta and made a representation to them against such shifting of time slot. 20. The order however, was not given effect to. But on or about 5th April, 2000, it was learnt that the representation of the petitioner had failed and the order dated 9th February, 2000 will be given effect to on and from 10th April, 2000 when the writ application was moved. 21. It is necessary to note in this connection, as pointed out hereinbefore, toe petitioner had to enter into a formal agreement with a standard proforma with the respondents under which it was provided inter alia, that Doordarsan will have unfettered right to effect any change in the schedule, time and day of the telecast (including change of channel) without any notice. It was further provided therein that whenever a change in the schedule/ allotted time slot is made it shall be announced by Doordarsan at the original schedule time slot of telecast, while slotting the programme, Doordarsan will have the option to shift the programme to any other slot deemed fit by the Doordarsan without assigning any reason with a notice of two weeks. 22. 22. By a supplementary affidavit the petitioner has also challenged the clause I of the memorandum of agreement under which the Doordarsan reserves unfettered right to effect any change, on the ground that the same is unfair, untenable, irrational and unconstitutional as the same was on agreement in dotted line and as it gives the Doordarshan an unfettered right to make such a change. 23. In M/s. H.P.C. Production which is a partnership concern and its programme titled 'Gaan Shudu Gaan' is being telecast on DD-1, Calcutta at 5-30 p.m. time slot of every Thursday has challenged the similar communication dated 9th February, 2000 being annexure 'E' to the writ petition informing the petitioner due to unavoidable programme exigencies its aforesaid programme currently running at 5-30 p.m. time slot on Thursday will be shifted at 4 p.m. slot on the same day. 24. The same has been challenged inter alia, on the ground the same is wholly arbitrary and in violation of Articles 14 and 19(1)(a) of the Constitution. 25. Admittedly the petitioner in the said case also was permitted to telecast its aforesaid programme after examining all its pilot cassette by the respondents after duly approving the same. Unlike the other writ petitioners in case of M/s. H.P.C. Production the said firm was granted several extension from time to time and also increased the telecast fee from time to time and the last extension to the petitioner No.1 was given by Prasar Bharati by letter dated 31st December, 1999 whereby the said petitioner was given extension of programme for another 26 episodes with effect from 6th January, 2000 which therefore will continue till end of July, 2000. While making such last extension there was a 50% increase from the original telecast fee with 90 seconds of additional spot buy. 26. It is claimed by the said petitioner they have already completed 116 weeks of telecast which is history in the weekly programme of Doordarsan, Calcutta and at present it is giving revenue to D.D. amounting to Rs. 90,250/- every week which according to them highest ever in the history of Doordarsan, Calcutta in the weekly category. 26. It is claimed by the said petitioner they have already completed 116 weeks of telecast which is history in the weekly programme of Doordarsan, Calcutta and at present it is giving revenue to D.D. amounting to Rs. 90,250/- every week which according to them highest ever in the history of Doordarsan, Calcutta in the weekly category. Like the other petitioner, M/s. H.P.C. Production also claims that by their labour they have made 5-30 p.m. time slot very popular and also quoted a number of young talent in the field of music with the help of their huge infrastructural support which they have created with the financial assistance of financial corporation and bank. 27. Like the other petitioner it is also claimed that such programme is a sponsored programme and is therefore wholly dependent upon the commercial which are received as advertisement. It has been contended that economic viability, improvement and continuity of the programme is entirely dependent on such commercials. It is also claimed that all steps have been taken for creating infrastructure for running the said programme and substantial investment has been made basing upon the aforesaid particular time slot of 5-30 p.m. as the same has a good viewership and attract good commercials and advertisements. 28. It is however, necessary to record in this connection that unlike the other writ petitioners, M/s. H.P.C. Production has not entered into agreement with the respondents in the standard proforma which was used for the other petitioners; but the terms and conditions of permitting the present petitioner to telecast their aforesaid serial in the aforesaid time slot will appear from the various correspondence between the parties some of which have been annexed to the writ petition. 29. The respondents in their affidavit-in-opposition to such writ petitions do not deny that the said writ petitioners were permitted to telecast their programme the aforesaid time slot of 5-30 p.m. after duly approving their programme on payment of the requisite telecast fees as also the other fees and the number of episodes which they have been permitted to telecast either the originally or after granting extension thereof will end at the end of July. 30. 30. It is also not disputed by the respondent that all such programmes are sponsored programmes; but the claim of the petitioner that in case of such sponsored programme, viability of the same really depends upon the number of advertisement and commercial which can be received and the same is related to a time slot which is more popular to the viewers has not been denied specifically inasmuch as, the respondents merely made a bold denial thereof without making any other case in respect thereof. The same therefore cannot be a denial of such claim of the petitioners. As to the claim of the petitioners that they could make such time slot popular, there is only a bald denial in respect thereof. 31. But the fact that such time slot is 'viewers friendly' is admitted by the respondents as it will appear hereinafter. In the affidavit the main case of the respondents are that the writ petition is not maintainable as the dispute is of purely commercial nature, and under the relevant provisions of the agreement the respondent No.1 has unfettered right to effect change in the days of telecast of a serial and in particular to shift the programme to any other time slot without assigning any reason, with a prior notice of two weeks. 32. It is denied by the respondents that the impugned decision is arbitrary. On the contrary in the affidavit and respondents have justified their action by stating in detail the reason why such change of time slot was made in case of the petitioner. 33. In this connection the relevant extract of the paragraph 15 of the petition where such reasons have been given is quoted hereunder: "With reference to allegations contained in paragraph 20 of the said petition I say that the petitioners were well aware that the respondents intended to allot the time slot of 5-30 p.m. to 6 p.m. with effect from 10th April, 2000 to the Channel-8, the producer of 'Ekak Dasak Satak'. The said serial of Channel-8 is based on a very well known novel of famous Novelist Bimal Mitra. The respondents decided to telecast the said serial 'Ekak Dasak Satak' to give a cultural tilt and solidity of content to a programme at the said time slot. The said serial of Channel-8 is based on a very well known novel of famous Novelist Bimal Mitra. The respondents decided to telecast the said serial 'Ekak Dasak Satak' to give a cultural tilt and solidity of content to a programme at the said time slot. Since the said programme could not be made ready earlier as promised by Channel-8 the respondents were not in a position to telecast the same immediately after 9th February, 2000 and on that footing, allowed the petitioners to continue with their serial at the time slot of 5-30 p.m. to 6 p.m. on Mondays. In terms of content and viewership, the respondents felt that serial 'Ekak Dasak Satak' has natural claim to be telecast to a viewers friendly time slot. The said decision is a policy decision of the respondent No.1 and cannot be questioned. The budgetory grant to which the respondent No.1 had accustomed during all these years had been withheld by the Central Government instead, only a nominal grants-in-aid could be provided for by the Central Government, leaving the respondent No.1 to earn its own revenue for running of the Corporation. The respondent No.1 is facing a financial crunch as such, the prospect of earning of better revenue henceforth has become very important factor to be taken into account in shaping or implementing its policy. In terms of the agreement with Channel-8, the producer of 'Ekak Dasak Satak' to be telecast at a slot of 5-25 p.m. to 6 p.m. between Monday to Friday, the respondent No.1 stands to earn Rs. 13,85,000/- a week as against Rs. 2,03,000/- a week from the current programme now telecast between Monday to Friday at 5-30 slot." 34. In terms of the agreement with Channel-8, the producer of 'Ekak Dasak Satak' to be telecast at a slot of 5-25 p.m. to 6 p.m. between Monday to Friday, the respondent No.1 stands to earn Rs. 13,85,000/- a week as against Rs. 2,03,000/- a week from the current programme now telecast between Monday to Friday at 5-30 slot." 34. It will thus appear from the said statement made in the affidavit that although in the impugned order it has been stated that such change of time slot was made "due to unavoidable programme exigencies", such change of time slot in fact was made as Channel-8, the added respondent herein, were allotted the same time slot for telecasting their serial 'Ekak Dasak Satak' based on well-known Bengali Novel of famous Novelist Bimal Mitra and such decision was taken "to give a cultural tilt and solidity of content" to a programme at the time slot and in terms of content and viewership, the respondents felt that serial 'Ekak Dasak Satak' has natural claim to be telecast to a "viewers friendly" time slot. 35. It is also claimed that such a decision is a policy decision of the respondent No.1 and therefore cannot be questioned. Further reason for such change of time slot and giving the same to Channel-8 to telecast its aforesaid serial been given by the respondents is that the Channel-8 will pay much more than the existing producer and the respondents stands to earn Rs. 13,85,000/- a week as against Rs. 2,03,000/- a week from the current programme and as the respondent No.1 is facing a financial crunch because of withholding of budgetory grant by the Central Government the prospect of earning better revenue has become important factor to be taken into account in shaping or implementing the policy of the respondents. 36. It may be recorded that the added respondent Channel-8 who is now sought to be given the 5-30 p.m. time slot for which the petitioners are sought to be dislodged therefore and shifted to 4 p.m. time slot, has also filed an affidavit. From their affidavit itself it will appear that they have not yet filed the requisite bank guarantee and they are seeking to reduce the amount which they agreed to pay to Doordarsan. From their affidavit itself it will appear that they have not yet filed the requisite bank guarantee and they are seeking to reduce the amount which they agreed to pay to Doordarsan. It is not necessary at this stage to refer to the affidavit any further and the same will be done at the appropriate stage hereinafter. 37. It will appear from the impugned judgment of the trial court that the main submissions of the respondent No.1 before the trial court were that the writ applications are not maintainable as the dispute raised therein are purely commercial in nature and the sole intention of the petitioner being to enforce alleged contractual obligation the same should not be entertained, the petitioners having alternative remedy; under the agreement the respondent No.1 has an unfettered right to effect change in the date or time of a programme without assigning any reason with the prior notice of two weeks and as such condition of the agreement was accepted by the writ petitioner without any protest, the petitioners now cannot riggle out all the aforesaid provisions of the contract; the sponsorer of the petitioners were also well aware of the terms of the agreement and therefore neither the petitioners nor their sponsorer can make any complaint against shifting of time slot; such change of time slot has been made to give the same to Channel-8 as a policy decision to give a cultural tilt and solidity of the content to the programme and as the respondent No.1 was facing a financial crunch for the purpose of earning more revenue and in terms of the agreement with Channel-8 being the added- respondent, the respondent will earn Rs. 13,85,000/- week from the current programme. 38. It will further appear from the said judgement that the submission of the petitioners in all the four cases were that the said action of the respondent was wholly arbitrary and is in violation of Articles 14 and 19(1)(a) of the Constitution and the impugned decision of the respondent is subject to judicial review. It was also contended before the trial court by the petitioners that if the object of change of the time slot is for higher revenue the petitioners are prepared to pay at the rate at which the respondent No.1 has entered into an agreement with the added respondent. It was also contended before the trial court by the petitioners that if the object of change of the time slot is for higher revenue the petitioners are prepared to pay at the rate at which the respondent No.1 has entered into an agreement with the added respondent. It was also contended that before such change prior two weeks notice was not given. The contention of the respondent, however, such two weeks notice was not necessary to be given and it is sufficient if the same is flashed at the screen of the T.V. 39. It further appears from the impugned judgement that although all the writ applications were dismissed by the learned Judge, it was not held by His Lordship that the writ petitions are not maintainable as claimed by the respondents. It appears that His Lordship held inter alia, that there was no violation of right of the provisions under Article 19(1)(a) of the Constitution as the telecasting of the programme have not been totally stopped like the case in the decision cited by the petitioners and such Article 19(1)(a) of the Constitution does not give any right to the petitioner to insist on telecasting their production at a particular time for a indefinite point of time and some discretion should be allowed to the respondent No.1 to alter the time schedule of programme according to its choice. It was further held by His Lordship that if the respondent No.1 takes a policy decision to telecast a serial based on a popular novel in place of musical programme of the petitioner in order to give a cultural tilt and solidity of content of a programme and the said time slot, the court should not interfere with the said decision in the absence of patent mala fide, which is absent in the instant case. His Lordship has also rejected the contention of the petitioners that before change of time slot an opportunity of hearing should be given or it was necessary to give two weeks notice to the petitioner and held an announcement by Doordarshan in the screen at the schedule time indicating change of time slot before two weeks will be sufficient compliance of the said clause. 40. In the writ petition of M/s. Softline Multimedia His Lordship specifically held that there cannot any dispute with the proposition of law as submitted by Mr. 40. In the writ petition of M/s. Softline Multimedia His Lordship specifically held that there cannot any dispute with the proposition of law as submitted by Mr. Pal appearing for the writ petitioner that previous view of the Apex Court in the case of M/s. Radhakrishna Agarwal & Ors. vs. State of Bihar & Ors., reported in AIR 1977 SC 1496 , has been further relaxed in the case of The Gujrat State Financial Corporation vs. M/s. Lotus Hotels (P) Ltd., reported in AIR 1983 SC 848 and that an arbitrary and unreasonable decision of the Government authorities while acting in pursuance of a contract would be amenable to writ jurisdiction. 41. But after acceptance of such proposition of law His Lordship further referred to the decision of the Supreme Court in the case of L.I.C. of India & Anr. vs. Consumer Education and Research Centre & Ors., reported in (1995) 5 S.C.C. 482 , that while exercising the power under Article 226 of the Constitution of India the court would be circumspect to adjudicate the dispute arising out of contract depending on facts and circumstances of the case and therefore each case has to be examined on its facts and circumstances to find out the nature of the controversy. His Lordship further held the impugned decision of the respondent No.1 to advance the time slot by 90 minutes for the purpose of giving a way to a new serial based on popular novel should not be reviewed when there is no apparent mala fide on the part of the respondent No.1 and the respondent No.1 should be left with the discretion of taking a decision of introducing a serial based on novel in place of a musical programme at a particular point of time apart from question of raising higher amount of revenue. 42. 42. It will thus appear from the impugned judgement of the trial court that it was never held that the writ application was not maintainable as the dispute is purely of commercial nature as claimed by the respondent, but as His Lordship was of the view that there is no apparent mala fide in the decision of the respondent No.1 for change of the time slot and giving the same to another producer is a matter of policy and for earning more revenue therefore some discretion must be given to the respondent No.1 for change of such time slot and the same should not be interfered with under Article 226 of the Constitution. 43. In other words His Lordship was of the view that under the facts and circumstances of the case it was not a fit case where the writ court should interfere there being no apparent mala fide. 44. After considering the respective submissions of the parties and considering the entire material on records, we are however of the view the impugned judgement of the Trial Court cannot be sustained. 44. After considering the respective submissions of the parties and considering the entire material on records, we are however of the view the impugned judgement of the Trial Court cannot be sustained. As pointed out hereinbefore the Trial Court was not of the view that the writ application is not maintainable as contended by the respondents, but on the contrary accepted the submission of the petitioners that the previous view of the Apex Court in the case of Radha Krishna Agarwal vs. State of Bihar, reported in AIR 1977 SC 1496 , has been further relaxed in the case of Gujrat State Financial Corporation vs. Lotus Hotel(P) Ltd., reported in AIR 1983 SC 848 and that an arbitrary and unreasonable decision of the Governmental authorities while acting in pursuance of a contract would be amenable to writ jurisdiction; but notwithstanding the same the Trial Court was of the view following the decision of the Supreme Court in the case of LIC vs. Consumer Education and Research Centre, reported in AIR 1995 SC 1811 , that while exercising power under Article 226 of the Constitution the Court would be circumspect to adjudicate the dispute arising out of contract depending on the facts and circumstances of the case and held that no interference is called for in the cases in hand under the facts and circumstances of the case as there is no apparent mala fide and the change of time slot having been made as a matter of policy, some discretion has to be left to the respondents. 45. The learned Judge, however, completely overlooked that the specific case of the writ petitioners here is that the impugned action are wholly irrational and arbitrary and in violation of Article 14 of the Constitution and therefore even though there may be no patent mala fide in the impugned act the same is liable to be interfered with if such action is arbitrary and is in violation of Article 14 of the Constitution and even if the impugned decision is a policy decision, the Court can certainly interfere with the same if the same is arbitrary and is in violation of Articles 14 and 19 of the Constitution. 46. It appears to us the cases were never examined by the learned Judge from the said angle. 46. It appears to us the cases were never examined by the learned Judge from the said angle. The learned Judge never considered the question whether the impugned decision is arbitrary and violative of Article 14 of the Constitution. 47. The learned Judge also fell into error in overlooking that the Supreme Court in the case of Secretary, Ministry of Information Broadcasting, Govt. of India, & Ors. vs. Cricket Association of Bengal & Ors., reported in AIR 1995 SC 1236 , already held inter alia that right to freedom of speech and expression under Article 19(1)(a) of the Constitution includes the right to disseminate information by the best possible method through an agency of one's choice and the right to communicate includes right to communicate through any media that is available whether print or electronic or audio-visual and such right of the writ petitioners may certainly be affected even because of the change of the time slot from an important "viewers friendly" channel to an unimportant one although the agreement between the parties might not have been terminated by such action of the respondents. 48. The sum and substance of the submission of the learned Counsels appearing for the appellants is that the impugned decision is arbitrary, unfair and/or unreasonable, and is violative of Articles 14 and 19(1)(a) of the Constitution and the fact that the dispute also fails within the domain of contractual obligation would not relieve the State of its obligation to comply with the basic requirements of Article-14 and to this extent such obligation is of a public character. 49. Mr. 49. Mr. Samaraditya Pal, learned Counsel appearing for the one of the appellants, who has mainly argued on the aspect of violation of Article 14 of the Constitution because of the arbitrariness of the impugned decision of the respondents has submitted inter alia that the Prasar Bharati Corporation admittedly being a creature of a statute enacted by the Parliament namely Prasar Bharati Act, is a State within the meaning of Article 12 of the Constitution and under section 12 of the said Act, it has been invested with a public duty and obligation to organize and conduct public broadcasting services to inform, educate and entertain the public and to ensure a balance development of broadcasting on Radio and Television and therefore not only a public element and duty is involved in its functions for the implementation of its aforesaid obligation entrusted upon it by the said Act, the agreement which it enters into with different citizens for enabling them to telecast their programmes and to sell its time slot also involves a public and statutory element. 50. It has been further submitted the impugned agreement cannot said to be a pure commercial transaction as the Corporation is not carrying on a commercial activity while entering into such agreement but such agreement is entered into while implementing its aforesaid obligation under the Act to ensure that the broadcasting is conducted as a public service to provide and produce programmes. It has further been submitted by Mr. Pal that it is however wholly irrelevant even if an agreement is of a purely commercial nature inasmuch as if the impugned action of the State is arbitrary unfair or unreasonable the same will amount to violation of Article 14 of the Constitution and therefore will certainly be amenable to writ jurisdiction. 51. Mr. Pal that it is however wholly irrelevant even if an agreement is of a purely commercial nature inasmuch as if the impugned action of the State is arbitrary unfair or unreasonable the same will amount to violation of Article 14 of the Constitution and therefore will certainly be amenable to writ jurisdiction. 51. Mr. Pal further submitted inter alia relying upon a number of decisions of the Supreme Court and the High Courts that the law laid down by the Supreme Court in the case of Radha Krishna Agarwal vs. State of Bihar (supra) that arbitrary action of the State only at the threshold of the contract and not relating to concluded contracts will amenable to writ jurisdiction has undergone change in the subsequent decision of the Supreme Court of Dwarkadas Marfatia, where the Supreme Court specifically stated that the early decision in the case of Radha Krishna is incorrect; in Srilekha Vidyarthi, Delhi Transport Corporation & Ors. where it has been held that arbitrary action of the State even in case of concluded contract will be open to judicial review particularly when the same violates the Constitutional and Fundamental Rights of the citizens. 52. Mr. Pal has further submitted that there is no further scope of making any distinction between public law and private law while examining whether a particular arbitrary action of State is amenable to writ jurisdiction inasmuch as the concept of public law and private law was borrowed by us from the English Jurisprudence but even in England such distinction has lost its significance. 53. Mr. Pal has further submitted relying upon an English decision as also the decision of the Supreme Court in the case of Srilekha Vidyarthi (supra) that all State actions vis-a-vis the citizens in every sphere including contractual relation falls within the domain of public law and only actions between the two citizens will fall in the domain of private law. 54. Mr. 54. Mr. Shakti Nath Mukherjee appearing for the other appellant, who mostly dealt with the aspect of violation of Article 19 of the Constitution, relying on a number of decisions of the Supreme Court including the decision of the Supreme Court is the Cricket Association of Bengal case (supra) submitted that it cannot be disputed any further that the right to freedom of speech and expression under Article 19(1)(a) of the Constitution includes the right to disseminate information by the best possible method through an agency of one's choice and in exercise of such right therefore the petitioners have the right to telecast their programmes subject to the reasonable restrictions that may be imposed by any law under Article 19(2) of the Constitution. It has been submitted by Mr. Mukherjee further that the arbitrary decision of the respondents to shift the time slot of their programme from the viewers friendly 5-30 p.m. slot to 4 p.m. slot certainly affects their right even though the agreement might not have been terminated altogether as there will be less viewers for the 4 p.m. time slot and consequently there will be difficulty in getting the commercials but for which such a programme cannot survive. 55. Both Mr. Mukherjee and Mr. Pal have also submitted that impugned action of the respondents is wholly arbitrary inasmuch as the agreement between the parties cannot be altered unilaterally for earning more money, as claimed by the respondents as the Corporation does not carryon any commercial activity, but enter into the agreement while permitting the citizens to telecast their programmes in performance of its statutory and public duty for the purpose of carrying on the broadcasting as public services for educating and entertaining the members of the public. 56. Mr. Prodyosh Kumar Mallick followed by Mr. Shyam Sarkar learned Counsels appearing for the Prasar Bharati Corporation and other respondents have submitted inter alia that the dispute between the parties having arisen out of a concluded contract which again is purely of commercial nature, the same will not be open to judicial review and the writ application is therefore not maintainable. Prodyosh Kumar Mallick followed by Mr. Shyam Sarkar learned Counsels appearing for the Prasar Bharati Corporation and other respondents have submitted inter alia that the dispute between the parties having arisen out of a concluded contract which again is purely of commercial nature, the same will not be open to judicial review and the writ application is therefore not maintainable. It has been submitted that the decision of three Judges' Bench of the Supreme Court in the Radha Krishna Agarwal case still holds the fields, which was rendered following a Constitution Bench decision of the Supreme Court in case of Har Shankar and the subsequent decision of the Supreme Court relied upon by the petitioners for the purpose of contending that law laid down in the Radha Krishna Agarwal case subsequently has undergone change, are either of Benches comprising of lessor number of Judges or related to contracts at the threshold. 57. While it has been admitted by the learned Counsel for the respondents that even in case of a concluded contract writ will lie if there is a public or statutory element involved in the contract, they have submitted notwithstanding the fact that the Corporation is a creature of Prasar Bharati Act and section 12 of the Act provided that it shall be the primary duty of the Corporation to organize and conduct public broadcasting services to inform, educate and entertain the public, no public element is involved in the functions of the Corporation and specifically in the agreement which the Corporation entered into with the producers for the purpose of enabling the producer to telecast its programme. 58. It has also been submitted that in any view of the matter, the impugned action of the respondent is not at all arbitrary and is quite reasonable and the impugned decision has been taken as a matter of policy for the reasons explained in the affidavit and under the terms of the contract, the Corporation has not unfettered right to change the time slot without assigning any reason and without any notice to the petitioners. It has further been submitted the petitioners having entered into the contract with their eyes open cannot be allowed to approach the writ Court for the purpose of wriggling out of the terms of the contract and to modify the same to suit their purpose. 59. It has further been submitted the petitioners having entered into the contract with their eyes open cannot be allowed to approach the writ Court for the purpose of wriggling out of the terms of the contract and to modify the same to suit their purpose. 59. The learned Counsel for the added respondent Channel-8 has adopted the submissions of Corporation and has not made any separate submission. 60. Since it is admitted by the respondents that even in the case of a concluded contract writ will lie against an arbitrary action of the State if a public or statutory element are involved, we shall first of all examine whether any public or statutory element is involved in the agreement in question or the same is of purely commercial nature. 61. Before the Prasar Bharati Corporation was created, Doordarshan was a department of the Central Government under the Ministry of Information and Culture. 62. In the year 1990, the Parliament enacted the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (hereinafter referred to as the said Act) to provide for an establishment of a Broadcasting Corporation to be known as Prasar Bharati, to define its position, functions and powers and to provide for matters connected therewith or incidental thereof. 63. The said Act came into effect on and from 15.9.1997. 64. Under section 2(c) of the Act 'Broadcast' means the dissemination of any form of a communication like signs, signals, writing, pictures, images and sounds of all kinds while transmission of electro-magnetic waves through space or through cables intended to be received by the general public either directly or indirectly through the media of relay stations. 65. Section 3(1) of the Act empowers the Central Government to establish for the purposes of the Act a Corporation to be known as Prasar Bharati (Broadcasting Corporation of India). 66. Section 12 of the Act makes it absolutely clear that the intention of the legislature while providing for the establishment of Broadcasting Corporation of India was not for the purpose that such Corporation will carryon commercial activity but for the purpose that the same will discharge a very solemn public duty, namely, conducting public broadcasting services to inform, educate and entertain the public. 67. 67. Section 12(1) of the Act clearly lays down that it shall be the primary duty of the Corporation, to organize and conduct public broadcasting services, to inform, educate and entertain the public to ensure a balance development of broadcasting of Radio and Television. 68. It is therefore the statutory duty and obligation of the Corporation under the said Act to organize and conduct the public broadcasting services with the above purpose of informing, educating and entertaining the public. 69. Section 12(2) of the Act provides that the Corporation shall in the discharge of its function will be guided by the objectives as laid down in the various clauses under the said section. Examination of some of such clauses will immediately reveal that such public broadcasting services has to be conducted for the public purpose of educating or informing and entertaining the public. 70. Under section 12(2)(b) of the Act the Corporation while discharging its function has to be guided inter alia with the objectives of safeguarding the citizens right to be informed freely, truthfully and objectively on all matters of public interest national or international and presenting a fair and balanced flow of information including contrasting views. 71. The object of safeguarding the citizens right to be informed freely, truthfully and objectively on all matters of public interest national or international and prescribing a fair and balanced flow including contrasting views is nothing but ensuring the Fundamental Right of citizens of freedom of speech and expression under Article 19(1)(a) of the Constitution which includes right to be informed freely, truthfully and objectively on all matters of public interest. 72. Similarly another objective of such broadcasting under section 12(2)(d) is for providing adequate coverage to the various cultures and languages of the various regions of the country while broadcasting proper programmes which is also for the purpose of ensuring the aforesaid Fundamental Right of the Citizens under Article 19(1)(a) of the Constitution. Similarly the objectives under sections 12(2)(c), (g), (h), (i), (j), (k), (l), (m), (n) and (o) are all for the purpose of enforcing the various Constitutional obligation of the State relating to education, children, women, minorities, health care as also doing social justice to the people under the Directive Principles of State Policy as also under other provisions of the Constitution. Under section 12(3)(a) of the Act the Corporation is obliged to ensure that the broadcasting is conducted as a public service to provide and produce programmes. 73. Not only therefore the Corporation under the provisions of section 12 of the Act is invested with a statutory and public duty and the obligation to inform, educate and entertain the public by conducting the public broadcasting services, the aforesaid objects by which the Corporation has to be guided while discharging its functions will clearly indicate that all such functions are required to be performed by the Corporation in public interest. 74. Such being the duties and obligation of the Corporation and the nature of its functions under the Act, not only the functions of the Corporation under the Act to discharge such obligation and to fulfil such objectives are statutory and for public interest having public character and element, even the agreement or the understanding which it has to enter into with the citizens including the various producers for the purpose of discharging its functions under the Act is of a public nature having public and statutory element and the same is not at all of commercial nature. 75. Section 12(3) of the Act leaves no manner of doubt that while discharging such public obligations and public duty, the Prasar Bharati Corporation cannot act in whatever manner it likes, like a businessman or a merchant, but it has to act in consonance with the purpose of the creation of the Corporation under the Act and its public duty and obligation enjoined upon it under the Act and not de hors the same. 76. Section 12(3)(a) of the Act provides that the Corporation may take such steps as it thinks fit to ensure that broadcasting is conducted as a public service to provided and produce programmes. 77. Section 12(3)(c) of the Act also empowers the Corporation for fulfiling its aforesaid objective and obligation under the Act, to negotiate for purchase of or otherwise acquire, programmes and rights or privileges in respect of sports and other events, films, serials, occasions, meetings, functions or incidents of public interest for broadcasting and to establish procedure for the allocation of such programmes, rights or privileges to the services. 78. 78. It is pursuant to such empowerment under section 12(3)(c) of the Act, the Prasar Bharati Corporation is negotiating with citizens and producers to acquire their programmes and selling its time to the producers to enable them to telecast their programmes. 79. Section 33(1) of the Act empowers the Corporation to make regulations not inconsistent with the Act for enabling it to perform its functions under the Act. Section 12(7) of the Act empowers the Corporation to determine and levy fees and other services for advertisement and such programmes as may be specified by Regulation, which however cannot exceed the limit as may be determined by the Central Government. No such regulation under the Act however has yet been framed. 80. Such agreement or memorandum of understanding therefore are not being entered into by the Corporation for a commercial purpose, but in exercise of its functions under the Act for the purpose of fulfilment of its public duty and obligation under the Act in public interest. 81. Such agreement or memorandum of understanding therefore also have public and statutory element. 82. The Prasar Bharati Corporation being a State within the meaning of Article 12 of the Constitution all its action must be free from arbitrariness and must be informed with reasons and must be for public good apart from the fact that the same must be for the purpose of fulfilment of its public duty and obligation under the Act and has to be in consonance with Article 14 of the Constitution. 83. Any arbitrary action on the part of the Prasar Bharati Corporation therefore while dealing with the citizens and the producers while entering into a memorandum of understanding or agreement for fulfilment of its statutory obligation or/and even under the agreement for the enforcement thereof or otherwise will be in violation of Article 14 of the Constitution and therefore will be amenable to the writ jurisdiction. 84. While entering into contract or even while acting under the contract, all actions of the Corporation have to the consistent with the purpose of the Act and its statutory obligation and duties and cannot be de hors the same. 85. 84. While entering into contract or even while acting under the contract, all actions of the Corporation have to the consistent with the purpose of the Act and its statutory obligation and duties and cannot be de hors the same. 85. We do not find any merit in the submission of the learned Counsel appearing for the respondents that although the Prasar Bharati Corporation is a State within the meaning of Article 12 of the Constitution, no public element is involved in the matter of its contractual relations with the producers and such contractual relations are purely of commercial nature. 86. We also accept the submission of the learned counsels appearing for the petitioner that in view of the fact a public and statutory elements are involved in such contract which the Prasar Bharati Corporation has to enter into with different producers while exercising its functions and performing its duties under the Act, it is wholly immaterial whether such contract is of commercial in nature or not. Since such public element and statutory elements are involved in such contract, arbitrary action on the part of the Corporation in the realm of such contractual relation will be amenable to writ jurisdiction if the same is in violation of Article 14 or Article 19(1)(a) of the Constitution or is de hors the purpose of the Act and the statutory and public duties of the Corporation under the Act. 87. The question which immediately therefore comes for our consideration as to whether the impugned decision of the respondents can be said to be arbitrary. 88. But before deciding such question, it has also become necessary for us to decide whether writ will lie against an arbitrary action of the State in the realm of a concluded contract. Ordinarily we need not have to go into such question, as we have already held that in the instant case public and statutory element being involved in the agreement entered into by the Prasar Bharati Corporation with the producers for the purpose of fulfilment of its statutory and public duty and obligation and the objectives under the Act any arbitrary action in respect thereof will be amenable to jurisdiction, and on such ground alone the objection of the respondents that the impugned decision is not open to judicial review will fail. 89. 89. But Counsels for the parties insisted that such a point should also be decided by us being of great importance. 90. We also feel that it has become necessary to decide such point, since the position of law although according to us, became well settled because of number of decisions subsequent to the decision of Radha Krishna Agarwal, Prasar Bharati Corporation insisted that the law laid down in the case of Radha Krishna Agarwal remains unchanged and even in the new Millennium the Court is being asked by the Corporation to travel back 23 years against the time and to hold that the impugned decision being in the realm of concluded contract is not open to Judicial Review. 91. A three-Judges Bench of the Supreme Court in the case of M/s. Radha Krishna Agarwal vs. State of Bihar, reported in AIR 1977 SC 1496 , hold that at the very threshold or at the time of entering into the fields of consideration of persons with whom the Government could contract at all, the State, no doubt, acts surely in its executive capacity and is bound by the obligations which dealings of the State with the individual citizens import into every transaction entered into in exercise of its Constitutional powers; but after the State or its agents have entered into the field of ordinary contract the relations are no longer governed by the Constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se; no question arises of violation of Article 14 or of any other Constitutional provision when the State or its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of contracts only, unless statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from the contract. 92. In the said case the Supreme Court followed the Constitution Bench decision of the Supreme Court in the case of Har Shankar vs. Dy. Excise and Taxation Commissioner, reported in AIR 1975 SC 1121 . 93. 92. In the said case the Supreme Court followed the Constitution Bench decision of the Supreme Court in the case of Har Shankar vs. Dy. Excise and Taxation Commissioner, reported in AIR 1975 SC 1121 . 93. The law as laid down in the aforesaid case of M/s. Radha Krishna Agarwal (supra) therefore was that unless some statute steps in and confers some special statutory power or obligation on the State, in contractual relation between the State and a citizen in case of concluded contract the rights of the parties will be governed under the contract and no question will arise of violation of Article 14 or any other Constitutional provision. 94. Since it has already been held by us that a statutory and public element is involved in the contract in question, the decision of Radha Krishna Agarwal (supra) is not therefore against the petitioners but in their favour. 95. The same view was expressed by the Supreme Court in the case of State of Haryana vs. Jageram, (Three Judges Bench) reported in AIR 1980 SC 2018 , as also in the case of Berille Development Authority vs. Ajay Pal Singh, (Two Judges Bench) reported in AIR 1989 SC 1076 . 96. The aforesaid law laid down by the Supreme Court however appears to have undergone a definite change. 97. Mr. Mallick appearing for the respondents has submitted that the aforesaid decision in the case Radha Krishna Agarwal which followed the Constitutional Bench decision in the case of Har Shankar is still the law and has not undergone any change. 98. It however appears to us even before the decision in the case of Srilekha Vidyarthi, a three Judges Bench in the case of M/s. Dwarkadas Marfatia and Sons vs. Board of Trustees of the Bombay, reported in AIR 1989 SC 1642 , found the aforesaid decision in the case of Radha Krishna Agarwal to be not correct. 99. In the said case the Supreme Court was faced with the situation where the Board of Trustees of Bombay Port which was held to be a State within the meaning of Article 12 of the Constitution terminated the tenancy agreement of the appellant therein which was challenged on the ground that the same was arbitrary and in violation of Article 14 of the Constitution. It was held by the Supreme Court inter alia that public authorities which enjoy the benefit without being hidbound by the requirements of the Rent Act must act for public benefit and being a public body even in respect of its dealing with its tenant the Board of Trustees must act in public interest and an infraction of that duty is amenable to examination either in civil suit or in writ jurisdiction. 100. In paragraph 22 of the judgment Their Lordships took notice of the decision of Radha Krishna Agarwal (supra) and also the decision of the Supreme Court in the case of L.I.C. vs. Escorts Ltd., reported in AIR 1986 SC 1370 , which was cited in support of the contention that the public Corporations dealing with tenant is a contractual dealing and it is not a matter for public law domain and is not subject to judicial review. 101. After referring to the said decision Their Lordships held that it is not the correct position and explained the Escort's case. In this connection, paragraphs 22 and 23 of the said judgment are quoted hereinbelow: "22. Our attention was drawn to the observations of this Court in Radhakrishna Agarwal vs. State of Bihar, (1977) 3 SCR 249 : AIR 1977 SC 1496 . Reliance was also placed on the observations of this Court in Life Insurance Corpn. of India vs. Escorts Ltd., (1985) 3 Suppl. SCR 909 : AIR 1986 SC 1370 , in support of the contention that the public Corporations' enabling with tenants is a contractual dealing and it is not a matter for public law domain and is not subject to judicial review. However, it is not the correct position. The Escorts' decision reiterated that every action of the State or an instrumentality of the State, must be informed by reason. Indubitably, the respondent is an organ of the State under Article 12 of the Constitution. In appropriate cases, as was observed in the last mentioned decision, actions uniformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution. But it has to be remembered that Article 14 cannot be construed as a charter for judicial review of State action, to call upon the State to account for its actions in its manifold activities by stating reasons for such actions. 23. But it has to be remembered that Article 14 cannot be construed as a charter for judicial review of State action, to call upon the State to account for its actions in its manifold activities by stating reasons for such actions. 23. The contractual privileges are made immune from the protection of the Rent Act for the respondent because of the public position occupied by the respondent authority. Hence, its actions are amenable to judicial review only to the extent that the State must act validly for a discernible reason not whimsically for any ulterior purpose. Where any special right or privilege is granted to any public or statutory body on the presumption that it must act in certain manner, such bodies must make good such presumption while acting by virtue of such privileges. Judicial review to oversee if such bodies are so acting is permissible." 102. It was further hold by the Supreme Court in the said case that the Bombay Port Trust being a State within the meaning of Article 12 of the Constitution in respect of any right conferred or privileged granted by any statute subject to Article 14 and must be reasonable and taken only upon lawful and relevant grounds of public interest and wherever there is arbitrariness in State action Article 14 springs in and judicial review strikes such an action down and whatever be the activity of the public authority it should meet the test of Article 14. 103. It is also worth mentioning in this connection the decision of the 3 Judges Bench of the Supreme Court in the case of Md. Hanif vs. State of Assam, reported in (1969) 2 SCC 782 , that when several important issue of public law and Constitutional issues are raised writ application cannot be dismissed as it was done by the High Court in the said case on the ground that the petitioner was trying to enforce a contractual right as Article 226 is a remedy against violation of the citizen by the State or statutory authority and is remedy in public law. 104. 104. In the case of Kumari Srilekha Vidyarthi vs. State of U.P., reported in (1991) 1 SCC 212 , a Two Judges Bench of the Supreme Court made a clear departure from the pronouncement of the Supreme Court in the case of Radha Krishna Agarwal (supra) that the principle that the State action is also to be free from arbitrariness and be informed with reasons will be confined in the contractual matters only at the threshold at the time of entering into contract and not thereafter. 105. In Srilekha Vidyarthi's case the Supreme Court crossed such boundary laid down in the case of Radha Krishna Agarwal and held clearly and unequivocally that the requirement of Article 14 is extended even in the sphere of concluded contract for regulating the conduct of State activity; applicability of Article 14 to all executive actions of the State being settled and for the same reason its applicability at the threshold to the making of a contract in exercise of executive power beyond dispute, the State cannot thereafter cast off its personality and exercise unbridled power unfettered by the requirement of Article 14 in sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals whose right flow only from the terms of the contract without anything more. 106. The relevant observation of the Supreme Court in this connection made in paragraphs 20, 21, 22 and 24 is quoted hereinbelow: "20. Applicability of Article 14 to all executive actions of the State being settled and for the same reason its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute can it be said that the State can thereafter cast off its personality and exercise unbridled power unfettered by the requirement of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only from the terms of the contract without anything more? We have no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. We have no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if the requirement of Article 14 and contractual obligations are alien concepts which cannot co-exist." "21. The Preamble of the Constitution of India resolves to secure to all its citizens justice, social, economic and equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains 'Directive Principles of State Policy' which are fundamental in the governance of the country and are aimed at securing social and economic freedom by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excesses of State action, to realise the vision in the Preamble. This being the philosophy of the Constitution, can it be said that it contemplates exclusion of Article 14 non-arbitrariness which is basic to rule of law from State actions in contractual fields when all actions of the State are meant for public good and expected to be fair and just. We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the Constitutional scheme to accept the argument of exclusion of Article 14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals." "22. There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as it expected of it, for public good and in public interest. There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as it expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligation may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation can not divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions." "24. The State cannot attributed the split personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State of the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies flowing from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in public interest and those of a private individual, engaged in similar activities, being primarily for personal gain, which mayor may not promote public interest. Viewed in this manner, in which we find no conceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend even in the sphere of contractual matters for regulating the conduct of the State activity." 107. Mr. Mallick appearing for the respondent tried to contend that in the aforesaid decision of the Supreme Court was really considering a situation where the appointment of Govt. Advocates were terminated by the State Govt. and the Supreme Court already held that in such appointments public elements were involved and therefore the same cannot be viewed as purely commercial contractual matters once the appointment is made. The same is correct. 108. But at the same time, there cannot be any doubt whatsoever from the observation of the Supreme Court made in paragraphs 20, 21, 22 and 24 that Their Lordships consciously keeping in mind the earlier decision of the Supreme Court in the case of Radha Krishna Agarwal made a clear departure from the same and made a clear declaration of law that after conclusion of the contract the State cannot cast off its personality and exercises unbriddled power unfettered by the requirement of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals and personality of the State requiring regulation of its conduct in all sphere by requirement of Article 14 does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. 109. We are not oblivious of the fact, as pointed by Mr. 109. We are not oblivious of the fact, as pointed by Mr. Mallick, that the decision of Radha Krishna Agarwal was rendered by a three Judges Bench which followed the Constitution Bench decision in the case of Har Shankar and the aforesaid declaration of law has been made in the case of Srilekha Vidyarthi (supra) by Two Judges Bench of the Supreme Court. 110. But as it will appear hereinafter the said principle of law which was laid down in the case of Srilekha Vidyarthi has been followed subsequently more or less consistently by the Supreme Court whether Two Judges Bench or Three Judges Bench till date. It is true that in some of the judgments a discordant note was struck by justice Jeevan Reddy. But even in such judgments the decision of the Srilekha Vidyarthi was only sought to be distinguished and it was never held that the pronouncement of law in the aforesaid paragraphs in the case of Srilekha Vidyarthi was incorrect not the same was set aside by any larger Bench nor any comment was made about the observation of the Three Judges Bench in the case of Dwarkadas Marfatia after referring to the decision of Radha Krishna Agarwal, that such position is not correct. 111. In the case of Mahavir Auto Stores vs. India Corporation, reported in AIR 1990 SC 1031 : 1990(3) SCC 752 , it was held by the Supreme Court that the State when acting in its executive power enters into contractual relation of the individual, Article 14 would be applicable to the exercise of the power and such action must be subject to rule of law. 112. In the case of M/s. Hyderabad Commercials vs. Indian Bank & Ors., reported in AIR 1991 SC 247 , the Bank admitted its liability as to the unauthorised transfer of huge amount from the account of one of its customers to another but raising a plea that the same was done on oral instruction. Although the remedy of the aggrieved person was in a suit, relation between the parties being governed by contract, the Supreme Court directed the bank in writ proceeding to recredit the amount holding inter alia that the function of the nationalised bank in the aforesaid manner is detrimental to public interest and if it follows such a practice people will loose faith in the credibility of the bank. 113. 113. A two Judges Bench in the case of Lamba Industries vs. Union of India & Ors., reported in (1991) 2 SCC 407 , while deciding an appeal from the order of the Punjab & Haryana High Court and the question whether relief can be obtained by a party in writ jurisdiction even if it arises out of breach of contract of obligation against the State Trading Corporation which was held to be an authority within the meaning of Article 12 of the Constitution observed that such a question does not survive for obvious reasons that the jurisdiction of the High Court is wide and it knows where to grant relief and deny where. 114. In our view such observation of Their Lordships would mean that such a breach by an authority which is within the meaning of Article 12 of the Constitution is amenable to the writ jurisdiction, but whether a relief can or should be granted by the High Court is to be decided under the facts and circumstances of each case. 115. Even before the decision of the Supreme Court in the case of Dwarkadas Marfatia and Srilekha Vidyarthi, in the case of Gujarat State Financial Corporation vs. M/s. Lotus Hotels(P) Ltd., reported in AIR 1983 SC 848 , a Two Judges Bench of the Supreme Court held that the principle of promissory estoppel would be applicable against Gujarat State Financial Corporation which was an instrumentality of the State and an authority within the meaning of Article 12 of the Constitution, notwithstanding the fact the relation between the parties were governed by a concluded contract entered into under the provisions of the Act. 116. The State Financial Corporation did not disburse the loan in terms of the agreement entered into between the parties. The Supreme Court in the said case rejected the contention made on behalf of the appellant Gujarat State Financial Corporation that as the matter is in the realm of contract, the appellant at best can be charged with breach of contract for which the remedy is by way of damages or any other remedy available to the respondent for breach of contract but, in any case, a writ of mandamus cannot be issued compelling the Corporation to perform its part of the contract. 117. 117. It was held by the Supreme Court inter alia, that it is too late in the day to contend that the instrumentality of the State which would be other authority within the meaning of Article 12 of the Constitution can commit breach of a solemn undertaking on which other side has acted and then contend that the party suffering by the breach of contract may sue for damages but cannot compel specific performance of the contract. Not only the Supreme Court legitimately upheld the action of the High Court in a writ of Mandamus upon the said Corporation but disbursed the loan on the ground of principle of promissory estoppel. It also held that the rule inhabiting arbitrary action by the Government would equally apply where such Corporation dealing with the public whether by way of giving jobs or entering into contracts or otherwise and it cannot act arbitrarily and the action must be in conformity with some principle which meets the test of reason and relevance. 118. In our view the question whether even in case of concluded contract, arbitrary action of the State or a public authority within the meaning of Article 12 of the Constitution can at all be open to judicial review was settled by the decision of the Constitution Bench in the case of Delhi Transport Corporation vs. D.T.C. Mazdoor Congress & Ors., reported in AIR 1991 SC 101 . 119. It is true that in the said decision the Supreme Court inter alia, was considering the question whether Regulation 9(b) of the Regulation framed under section 53 of the Delhi Road Transport Act, 1950 which provides for termination of services of permanent employers on giving simple one month's notice for pay in lieu thereof in terms of agreement of employment without recording any reason is arbitrary, illegal, discriminatory and violative of the Audi Alteram Partem Rule and so constitutionally invalid and void. 120. 120. But at the same time it can hardly be overlooked that the majority of the Hon'ble Judges namely, Justice B.C. Roy, Justice L.M. Sarma, Justice P.B. Sawant and Justice K. Ramaswamy quoted in their judgement with approval the finding of the Supreme Court in the case of Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly, reported in (1986)3 SCC 156 : AIR 1986 SC 1571 , which is a clear pronouncement of law under Article 141 of the Constitution. 121. Paragraph 185 of the judgement in which, in our view, such pronouncement of law has been made by the majority of the Hon'ble Judges of the said Constitutional Bench is quoted hereunder: "185. The Corporation filed appeals before Supreme Court. The impugned questions for determination were (i) whether the appellant-Corporation was an instrumentality of the State so as to be covered by Articles 12 and 36 of the Constitution and (ii) whether an unconscionable term in a contract of employment entered into with the Corporation was void under section 23 of the Contract Act and violative Article 14 and as such whether Rule 9(i) which formed a part of the contract of employment between the Corporation and its employees to whom the said Rules applied, was void? This Court held that it being a Government Company within the meaning of Article 12 of the Constitution has to comply with the rights embodied in Part III of the Constitution and the Directive Principles and in Part-IV of the Constitution. It was further held that by extending the executive power of the union and each of the States to the carrying on any trade or business. Article 298 does not convert either the Union of India or any of the States which collectively form the Union into a merchant buying and selling goods or carrying on either trading or business activity, for the executive power of the Union and the States, whether in the field of trade or business or in any other field is always subject to Constitutional limitations and particularly the provisions relating to Fundamental Rights in Part III and is exercisable in accordance with and for the furtherance of the Directive Principles of State Policy." 122. From such observation of the Supreme Court therefore it clearly appears that the Constitutional Bench made a declaration of law that by extending the executive power of the Union and each of the States to the carrying on any trade or business, Article 298 does not convert either the Union of India or any of the State which collectively form the Union, into a merchant buying and selling goods or carrying on either trading or business activity, for the executive power of the Union and the States, whether in the field of trade or business or in any other field, always subject to Constitutional limitations and particularly the provisions relating to Fundamental Rights in Part III and is exercisable in accordance with and for the furtherance of the Directive Principles of State Policy. 123. Such being the law declared by the Constitutional Bench of the Supreme Court the distinction which the three Judges Bench of the Supreme Court in the case of Radha Krishna Agarwal wanted to make between action of the States with citizens while entering into a contract and its relation with the citizens in the realm of concluded contract totally vanishes and becomes wholly irrelevant. 124. Because of such clear pronouncement of law in the manner aforesaid, such observation of the Constitution Bench cannot be confined only to relation between the States and a citizen in service jurisprudence as it was sought to be argued by the respondent. 125. In this connection it will also be worth noting of the decisions subsequent to the year 1991 till date. 126. A three Judges Bench of the Supreme Court in the year 1993 in the case of Food Corporation of India vs. M/s. Kamdhenu Cattle Food Industries, reported in (1993) 1 SCC 71 , although was dealing with a question of legitimate expectation of a citizen, in the matter of tender, made a clear and general observation of law to the effect (paragraph 7) that in contractual sphere as in all other State Actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. It was further held that there is no unfettered discretion in public law; a public authority possesses power only to use them for public good and the same imposes the duty to act fairly and to adopt a procedure which is fair play in action, due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities. It was further held that rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review. 127. In the case of LIC of India and Anr. vs. Consumer Education & Research Centre and Ors. reported in 1995 (5) SCC 482 , the Supreme Court was considering the question whether the appellant LIC was justified in law in restricting the term policy only to the specified class, namely, salaried persons in Government, quasi Government or reputed commercial firms. 128. It was held by the Supreme Court inter alia as follows: "23. Every action of the public authority or the person acting in public interest or any act that gives rise to public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element (sic that) becomes open to challenge. If it is shown that the exercise of the power is arbitrary, unjust and unfair, it should be no answer for the State, its instrumentality, public authority or person whose acts have the insignia of public element to say that their actions are in the field of private law, and they are free to prescribe any conditions or limitations in their actions as private citizens, simpliciter do in the field of private law. Its actions must be based on some rational and relevant principles. It must not be guided by irrational or irrelevant considerations. Every administrative decision must be hedged by reasons. The distinction between private law and public law is now settled by this Court in LIC vs. Escorts Ltd. by a Constitution Bench thus (SCC p. 344 para 102)" "If the action of the State is related to contractual obligations or obligations arising out of the tort, the Court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances." "26. This Court has rejected the contention of an instrumentality or the State that its action is in the private law field and would be immuned from satisfying the tests laid under Article 14. The dichotomy between public law and private law rights and remedies, though may not be obliterated by any strait-jacket formula, it would depend upon the factual matrix. The adjudication of the dispute arising out of a contract would, therefore depend upon facts and circumstances in a given case. The distinction between public law remedy and private law field cannot be demarcated with precision. Each will be examined on its facts and circumstances to find out the nature of the activity, scope and nature of the controversy. The distinction between public law and private law remedy has now become too thin and practicably obliterated." "27. In the sphere of contractual relations the State, its instrumentality, public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational facts into consideration or appear arbitrary in its decision. Duty to act fairly is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by the public interest." 129. Duty to act fairly is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by the public interest." 129. It was further held in the said decision that an unfair and untenable or irrational clause in a contract is also unjust and amenable to judicial review. It was further held that it is settled law that if a contract or a clause in contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties; in dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services of goods in terms of the dotted line contract. 130. It was further held (in paragraph 29 of the judgment) while exercising the power under Article 226, the Court would be circumspect to adjudicate the disputes arising out of the contract depending on the facts and circumstances in a given case; the distinction between the public law remedy and private law field cannot be demarcated with precision: each case has to be examined on its own facts and circumstances to find out the nature of the activity or scope and nature of the controversy. 131. A two Judges Bench of the Supreme Court in the case of Style (Dress Land) vs. Union Territory, Chandigarh & Anr., reported in (1999) 7 SCC 89 , was considering a question whether the sharp increase in rent of leased commercial property made an certain condition under the provision of section 3(1) of the Act, which authorises the Central Government to sell, lease or otherwise transfer any land or building belonging to the Government in Chandigarh on such terms and conditions as it may think fit to impose, was arbitrary or not. 132. It was held by the Supreme Court that Government cannot act like a private individual in imposing the conditions solely with the object of extracting profits from its leases, Governmental actions are required to be based on standards which are not arbitrary or unauthorised. 132. It was held by the Supreme Court that Government cannot act like a private individual in imposing the conditions solely with the object of extracting profits from its leases, Governmental actions are required to be based on standards which are not arbitrary or unauthorised. It was further held non-arbitrariness being the necessary concomitant of the rule of law it is imperative that all actions of every public functionary in whatever spheres must be guided by reasons and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all powers must be for public good instead of being abuse of power. 133. In the said case admittedly no rule was framed regarding imposition of terms and conditions of the lease including enhancement of rent and it was held by the Supreme Court that in absence of such rule the action of the respondent regarding imposition of such terms and conditions of the lease including the enhancement of rent is required to be fair and reasonable and not actuated by considerations which could be termed as arbitrary or discriminatory. In laying down such law the Supreme Court followed its earlier decision in the case of Srilekha Vidyarthi (supra). 134. A three Judges Bench in the case of M.I. Builders Put. Ltd. vs. Radhey Shyam Sahu & Ors., reported in (1999) 6 SCC 464 , was considering a challenge of disposal of Municipal properties to private builders contrary to statutory provision. 135. Admittedly the relation between the Municipality and the private builders was contractual as the contract was already entered into. 136. While considering such challenge the Supreme Court examined the terms of the agreement in question and held that not only the clause of the agreement are unreasonable but they are atrocious and the agreement is completely one sided in favour of the builders. 137. In the said case the Supreme Court also clearly explained how the court will examine in a particular case whether the impugned act of the State is reasonable or not, to which we shall come back shortly. 138. 137. In the said case the Supreme Court also clearly explained how the court will examine in a particular case whether the impugned act of the State is reasonable or not, to which we shall come back shortly. 138. It was held further that unreasonableness has thus become a generalised rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purpose, a wide category or errors commonly described as irrelevant considerations, and mistakes and misunderstandings which can be classed as self-misdirection or addressing oneself to the wrong question. It was further held while the abuse of discretion has variety of differing legal facets in practice the courts often treat then as distinct. When several of them will fit the case, the court is often inclined to invoke them all. The one principle that unites them is that powers must be confined within the true scope and policy of the Act. 139. It was further held that every decision of the authority except the judicial decision is amenable to judicial review and reviewability of such a decision cannot now be questioned. It was further held however, a judicial review is permissible if the impugned action is against law or in violation of the prescribed procedure or is unreasonable, irrational or mala fide. The Supreme Court quoted the following observation of Chief Justice Chagla in the case of State of Bombay vs. Laxmidas Ranchhoddas, reported in AIR 1952 Bom. 468 (para12). "60. It may be that interference by the High Court may result in inconvenience or difficulty in administration. But what we have to guard against is a much greater evil. When we find in the modern State wide powers entrusted to Government, powers which affect the property and person of the citizen, it is the duty of the courts to see that those wide powers are exercised in conformity with what the legislature has prescribed. We are not oblivious of the fact that in order that the modern State should function the Government must be armed with very large powers. But the High Court does not interfere with the exercise of those powers. The High Court only interferes when it finds that those powers are not exercised in accordance with the mandate of the legislature. We are not oblivious of the fact that in order that the modern State should function the Government must be armed with very large powers. But the High Court does not interfere with the exercise of those powers. The High Court only interferes when it finds that those powers are not exercised in accordance with the mandate of the legislature. Therefore, far from interfering with the good governance of the State, the Court helps the good governance by constantly reminding the Government and its officers that they should act within the four corners of the statute and not contravene any of the conditions laid down as a limitation upon their undoubtedly wide powers." 140. A three Judges Bench of the Supreme Court in the case of Common Cause, a Registered Society vs. Union of India & Ors., reported in (1999) 6 SCC 667 , which was heard on review, inter alia, was considering the scope of judicial review and public law remedy vis-a-vis the dispute between the citizen and the State or its instrumentality. 141. It was held inter alia, that executive or administrative action of State or its instrumentality or statutory or public bodies which are in violation of fundamental rights or which are arbitrary or oppressive in violation of Article 14 or any statute are open to judicial review. It was further held as follows: "40. Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of Constitutional powers by the High Court and the Supreme Court under Articles 226 and 32 has been categorised as power of 'judicial review'. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of fundamental rights guaranteed by the Constitution. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of fundamental rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other articles dealing with fundamental right every executive action of the Government or other public bodies, including instrumentalities of the Government, or those which can be legally treated as 'Authority' within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of this Court under Article 32 or the High Courts under Article 226 and can be validly scrutinised on the touchstone of the Constitutional mandates." After explaining what is public law field and private law field it was further held that public law field since its emergence is ever expanding in operational dimension, and its expanse covers even contractual matters. 142. In Paragraph 44 of the judgment the Supreme Court specifically referring to the judgment of the Supreme Court inter alia, in the case of Gujarat State Financial Corporation vs. Lotus Hotel (supra), Mahabir Auto vs. Union Oil Corporation (supra). Dwarkadas Marfatia (supra) held that although initially the Supreme Court was of the view the decision making process for award of a contract would be amenable to judicial review but a breach of contractual obligation arising out of the contract already executed would not be so enforceable, the court changed its opinion in subsequent decision and held that every arbitrary and unreasonable decision of the Government authorities while acting in pursuance of a contract would also be amenable to the writ jurisdiction. 143. The aforesaid paragraphs 44 of the judgment quoted hereunder: "44. Government decisions regarding award of contracts are also open to judicial review and if the decision-making process is shown to be vitiated by arbitrariness, unfairness, illegality and irrationality, then the Court can strike down the decision-making process as also the award of contract based on such decision. This was so laid down by this Court in Tata Cellular vs. Union of India. This was so laid down by this Court in Tata Cellular vs. Union of India. Initially the Supreme Court was of the opinion that while the decision-making process for award of a contract would be amenable to judicial review under Article 226 or 32 of the Constitution, a breach of a contractual obligation arising out of a contract already executed would not be so enforceable under such jurisdiction and the remedy in such cases would lie by way of a civil suit for damages. But the Court changed its opinion in subsequent decisions and held that even arbitrary and unreasonable decisions of the Government authorities while acting in pursuance of a contract would also be amenable to writ jurisdiction. This principle was laid down in Gujarat State Financial Corpn. vs. Lotus Hotels (P) Ltd. This Court even went to the extent of saying that the terms of contract cannot be altered in the garb of the duty to act fairly. Duty to act fairly in respect of contracts was also the core question in Mahabir Auto Stores vs. Indian Oil Corporation in which this Court relied upon its earlier decisions in E.P. Royappa vs. State of T.N., Maneka Gandhi vs. Union of India; Ajay Hasia vs. Khalid Mujib Sehravardi; Ramana Dayaram Shetty vs. International Airport Authority of India as also Dwarkadas Marfatia & Sons. vs. Board of Trustees of the Port of Bombay." 144. It will thus appear from all the abovementioned decisions of the Supreme Court that although in the year 1977 in the case of Radhakrishna Agarwal (supra) it was initial view of the Supreme Court that arbitrary action of the State in its decision making process for awarding of a contract and therefore at the threshold of the contract would be amenable to the writ jurisdiction and an arbitrary action relating to a concluded contract will not be open to judicial review, such view has undergone a definite change because of the subsequent decision of the Supreme Court and the law laid down by the Supreme Court at present is that even arbitrary and unreasonable decisions of the State or the Government authorities even while acting in terms of a contract already entered into would also be amenable to the writ jurisdiction. 145. 145. We are of the view after considering all the aforesaid decisions that where challenge is made on the ground of violation of Article 14 of the Constitution that the impugned act is arbitrary, unfair or unreasonable or on the ground of violation of any other fundamental or Constitutional rights, the fact that the dispute also falls within the domain of congratulate obligation, whether at the threshold or after entering into the contract, would not relieve the State of its obligation to comply with the basic requirement of Article 14 as all the State actions must be free from arbitrariness and must be informed with reasons. 146. It will also be worthwhile in this connection to refer to the decision of Justice D.C. Banerjee in the case of Surendra Prasad Misra vs. Oil and Natural Gas Commission, reported in AIR 1987 Calcutta 1 and in the case of Peerless Drive Limited & Anr. vs. Union of India & Ors., reported in 1993(2) CHN 362 and of Justice G.R. Bhattacharjee in the case of Jonaky Ganguly vs. Union of India, reported in 1994(2) CLJ 320 and of Justice S.B. Sinha in the case of Assam Brooke Exports Ltd. & Anr. vs. Export Credit Guarantee Corporation of India & Ors., reported in 1998(1) CWN 65. 147. vs. Export Credit Guarantee Corporation of India & Ors., reported in 1998(1) CWN 65. 147. It is true that in some of the decision subsequent to Lotus Hotel (supra) and Srilekha Vidyarthi (supra) but before Common Cause (supra), the Supreme Court appeared to have followed the principle laid down in the case of Radhakrishna Agarwal, but as we shall presently see that in none of such case the Supreme Court either overruled the decision in the case of Lotus Hotel and Srilekha Vidyarthi nor did it hold the decision in the aforesaid case of Lotus Hotel and Srilekha Vidyarthi are incorrect what is more such decisions were rendered by the Supreme Court overlooking the observation of the three Judges Bench of the Supreme Court in the case of Dwarkadas Marfatia that the position as laid down in the case of Radhakrishna Agarwal and others is not correct position and the clear pronouncement of law of the Constitution Bench of the Supreme Court in the case of Delhi Transport Corporation (supra) made in paragraph 185 of the judgment that Article 298 of the Constitution does not convert either the Union of India or any of the States which collectively form the Union into a merchant buying and selling goods or carrying on either trading or business activity, for the executive power of the Union and the States whether in the field of trade or business or in any other field, always subject to Constitutional limitations. 148. The decision of the Supreme Court in the case of State of Haryana & Ors. vs. Jage Ram & Ors., reported in AIR 1980 SC 2018 , relied upon by Mr. Mallick need not be discussed in view of the fact that the said decision of the Supreme Court is pre Lotus Hotel and Srilekha Vidyarthi case. The decision of the Supreme Court in the case of Bareilly Development Authority & Anr. vs. Ajay Pal Singh & Ors., reported in AIR 1989 SC 1076 , relied upon by Mr. Mallick is pre Srilekha Vidyarthi but post Lotus Hotel decisions. 149. The decision of the Supreme Court in the case of Bareilly Development Authority & Anr. vs. Ajay Pal Singh & Ors., reported in AIR 1989 SC 1076 , relied upon by Mr. Mallick is pre Srilekha Vidyarthi but post Lotus Hotel decisions. 149. It was held in the said case inter alia, following the case of Radhakrishna Agarwal when the contract entered into by State is non-statutory and purely contractual the relations are no longer governed by the Constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se and therefore no writ can be issued to compel the authority to remedy a breach of a contract pure and simple. 150. The Supreme Court however had no occasion to consider in the said case what is the effect of the decision of the Supreme Court in the case of Lotus Hotel. 151. In the case of State of U.P. & Ors. vs. Bridge & Roof Co. (India) Ltd., reported in AIR 1996 SC 3515 , a two Judges Bench of the Supreme Court held inter alia under the facts and circumstances of that particular case that the contract between the parties was not a statutory contract, but governed by the provisions of the Contract Act and also by certain provisions of Sale of Goods Act and any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated in a writ petition but this is a matter either for arbitration as provided by the contract or for civil court. 152. It however appears to us after going through the aforesaid decision that Their Lordships had no occasion to consider what is the effect of the decisions of the Supreme Court rendered in the case of Lotus Hotel, Dwarkadas Marfatia, Srilekha Vidyarthi, Delhi Transport Corporation and the host of the other decisions subsequent to the decision of Radgeshyam Agarwal and Their Lordships really decided the case under the facts and circumstances of that particular case without laying down any general law that in case of concluded contract there be any interference under any circumstances. 153. Mr. 153. Mr. Mallick, learned Counsel appearing for the Prasar Bharati Corporation, has very much relied on the observation of the Supreme Court that it is not possible to read the doctrine of fairness and reasonableness into the contracts to which State is a party on the ground that the State cannot act unreasonably or unfairly even while acting under a contract involving State power, as made by a three Judges Bench of the Supreme Court in the case of Assistant Excise Commissioner & Ors. vs. Issac Peter, reported in 1994(4) SCC 104 . 154. Mr. Mallick appearing for the respondents has drawn our attention to the fact that Justice J.S. Verma who delivered the judgement of the Supreme Court in the case of Srilekha Vidyarthi is also a party to the judgement in the case of Issac Peter and has submitted that the Supreme Court made such observation after taking note of the decision of Srilekha Vidyarthi and therefore the law laid down in the case of Srilehha Vidyarthi was deviated from in the case of Issac Peter. 155. It, however, appears to us after going through the decisions in the case of Issac Peter that the same is not an authority for the proposition that arbitrary action of the State in the field of concluded contract will not be amenable to writ jurisdiction. 156. In the said case the question before the Supreme Court was whether there was a failure on the part of the State in supplying the arrack undertaken by it to supply and whether the licensees are entitled to any rebate/remission in the amounts payable by them under the contracts on account of such failure, if any. Rule 6 of Kerala Abgari Shops (Disposal in Auction) Rules, 1974 provided the general conditions applicable to licensees of arrack shops, both retail and wholesale and Rules 6(26) specifically provided that no remission or abatement of the rental shall be claimable by the licensees or any account whatsoever. Rule 8(1) of the said Rule contemplated a monthly quota of arrack which shall be allowed for the shop and which shall be announced by the auctioning officer at the time of auction. Rule 8(1) of the said Rule contemplated a monthly quota of arrack which shall be allowed for the shop and which shall be announced by the auctioning officer at the time of auction. The said Rule further provided that additional supplies of arrack which the Assistant Excise Commissioner may permit in excess of the announced monthly quota and any undrawn quantity in any quarter can be allowed to be drawn in the next quarter. 157. The grievance of the writ petitioner in the said case was that during the month of April and May the authorities could not supply the additional quantities of arrack requested for by him and at the same time they were demanding the instalments dues. In the writ petition the reliefs were asked for a declaration that the Rule 6(26) of the Auction Rules are ultra vires and for a direction upon the respondents to supply additional quantities of arrack requested by the petitioners and not to enhance monthly payment due except that amount as is payable on the basis of arrack actually supplied and also to prevent the Government from conducting the re-auction or from terminating his licence. 158. It was held by the Supreme Court in paragraph 14 of the judgement that the contract between the parties was governed by statutory provisions and they constitute the terms and conditions under the provisions and the licensees cannot depart from there and it is not even open to any officer of the Government either to modify, amend or alter the said terms and conditions. 159. It was further held by the Supreme Court on merits of the said case in terms of the said contract that the monthly quotas have to be supplied and an additional quota in excess of the monthly quota, in fact, was supplied by the authorities to the extent it was possible for them. It was further held that the provisions of the said contract was of clear and unambiguous and therefore even if the petitioners might have incurred loss in the business the same is of no consequence when the authority acted in terms of contract. 160. The Supreme Court thereafter held the theory of legitimate expectation will not apply in such a case. Thereafter in paragraph 26 of the judgment the following observations were made:- "26. 160. The Supreme Court thereafter held the theory of legitimate expectation will not apply in such a case. Thereafter in paragraph 26 of the judgment the following observations were made:- "26. Learned Counsel for respondents then submitted that doctrine of fairness and reasonableness must be read into contracts to which State is a party. It is submitted that the State cannot act unreasonably or unfairly even while acting under a contract involving State power. Now, let us see, what is the purpose for which this argument is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory at least to the extent of previous year's supplied––by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purposes is to say that if the State is not able to so supply, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duly to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the State which is not there in the contract. ........" 161. It will thus appear from the abovementioned observation of the said case itself that the doctrine of fairness was sought to be invoked by the petitioners for the purpose of modifying or altering a statutory contract viz., although the contract stated that supply of additional quota is discretionary, it was claimed by the petitioner to be obligatory. It was held by the Supreme Court that doctrine of fairness cannot be invoked for the purpose of altering or modifying statutory contract. 162. The Supreme Court also distinguished its earlier decision in the cases of Dwarkadas Marfatia, Srilekha Vidyarthi and further held that in case of contract freely entered into with the State, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract namely, the State for the purpose of altering or adding to the terms and conditions to the contract. 163. 163. In the said decision, however, the Supreme Court never held that the observation of the Supreme Court in the case of Dwarkadas Marfatia that the decision in Radhakrishna Agarwal does not lay down the correct position, are not correct. 164. The decision of two Judges Bench of the Supreme Court in the case of Rajasthan Co-operative Dairy Federation vs. Mahalakshmi Marketing Service Pvt. Ltd., reported in 1996(10) SCC 405 , upon which also reliance has been placed by the learned Counsel appearing for the respondents is not an authority for the proposition that arbitrary action of the State in the realm of concluded contract will not be open to a judicial review. Under the facts and circumstances of that particular case the Supreme Court held that cancellation of a contract in the said case was not an arbitrary action violative of any fundamental right of the respondent No.1 and the doctrine of Audi Alteram Partem cannot be imported under the facts and circumstances of that particular case. 165. A two Judges Bench of the Supreme Court in the case of State of Orissa & Ors. vs. Narayan Prasad, reported in 1996(5) SCC 740 , relied upon by the respondents is also not an authority for the proposition that other action of the State in the realm of concluded contract will not be open to the judicial review. Under the facts and circumstances of that particular case it was held that a person who takes into contractual obligation with his eyes open and works the entire contract, cannot be allowed to turn around and question the validity of the obligations under the contract. 166. The Constitutional Bench decision of the Supreme Court in the case of Har Shankar vs. Dy. Excise and Taxation Commissioner, reported in AIR 1975 SC 1121 , was followed in the said case. 167. 166. The Constitutional Bench decision of the Supreme Court in the case of Har Shankar vs. Dy. Excise and Taxation Commissioner, reported in AIR 1975 SC 1121 , was followed in the said case. 167. But in the said case neither the Supreme Court had occasion to consider the decision of the Supreme Court in the case of Dwarkadas Marfatia and Srilekha Vidyarthi nor it was stated what is the effect of the general law laid down in the case of Srilekha Vidyarthi that even arbitrary action of the State in the realm of concluded contract is to open to judicial review and particularly the observation of the Constitution Bench of the Supreme Court in the case of Delhi Transport Corporation vs. D.T.C. Mazdoor Congress (supra) that extending the executive power of the Union and each of the States to carry on any trade or business under Article 298 of the Constitution does not convert either the Union of India or any of the States into a merchant buying and selling goods or carryon either trade or business activities, for the executive power of the Union and the State whether in the field of trade and business or in any other field is always subject to Constitutional limitations and particularly the provisions relating to fundamental rights in Part III and is exercisable in accordance with and for the furtherance the Directive Principles of State Policy. 168. 168. After careful examination therefore of all the abovementioned decisions we are of the view that law laid down in the case of Radhahrishna Agarwal that judicial reviewability of an arbitrary action of the State in the contractual field will only remain confined at the threshold of the contract and not in case of concluded contract, has definitely undergone a change (as held in the case of Common Cause) and now the view of the Supreme Court is Article 298 of the Constitution does not convert the Union or any of the States into a merchant buying and selling goods or carrying on either trading or business activities and an executive power of the State is always subject to Constitutional limitations and particularly the provisions relating to fundamental rights in Part III of the Constitution and is exercisable in accordance with and for the furtherance of Directive Principles of State Policy whether in the field of trade or business or in any other field (as held in the Constitutional Bench of Supreme Court in the case of Delhi Transport Corporation). 169. As the State therefore cannot act like an ordinary merchant in buying and selling or in its trading or business activities and it has also been settled beyond any dispute by a number of judicial decision of the Apex Court for more than a decade that the State actions must always be free from arbitrariness and must be informed with reasons and must always be for public good and Article 14 of the Constitution will spring into action wherever there is any arbitrariness, even in the realm of concluded contract the action of the State cannot be arbitrary and therefore arbitrary actions of the State even in the realm of concluded contract will be open to judicial review, particularly when Constitutional rights of a citizen is involved and affected. 170. In our view therefore the distinction which was made in the case of Radhakrishna Agarwal between the State actions at the threshold of the contract and the State actions in case of concluded contract is no more of relevance and has vanished. 171. This is more so in view of the fact that public law and private law divide is of no relevance any further in India when the action of the State of instrumentality is challenged as violative of Article 14 of the Constitution. 172. 171. This is more so in view of the fact that public law and private law divide is of no relevance any further in India when the action of the State of instrumentality is challenged as violative of Article 14 of the Constitution. 172. In India we have a limited Government, limited under a written Constitution and therefore it has been rightly submitted by Mr. Pal appearing for the petitioners that Article 14 of the Constitution cannot be deviated from or wiped out by the State in the contractual field nor the State can claim immunity from the same under the shield of private law. 173. Mr. Pal has drawn our attention to the fact that even in England wherefrom we have borrowed the concept of private law and private law, its jurisprudential justification has been questioned. 174. Karal Harlow, a lecturer of law in the London School of Economics in his Article "Public and Private Law: Definition without Distinction" published in the Modern Law Review, Volume 43 May 1980 opined that a jurisdictional division between public and private law cases is old fashioned and undesirable in principle. After referring to various judicial decisions he explained how the distinction between the two was made and what was the significance and utility thereof. He expressed his view that such distinction was made to creating an exception to the general principle of civil liability in favour of public authorities. He opined that the effect of creating special immunities for the administration is to distort development of the law by artificially sheltering public authorities from liability; this may occasionally create injustice by requiring a private individual to ensure the mistakes of the public authorities. He argued in the said Article against the creation and retention of general immunities as the same will offend the principle of equalities before the law which ought to be the paramount consideration. He argued in the said Article against the creation and retention of general immunities as the same will offend the principle of equalities before the law which ought to be the paramount consideration. He was further of the view that public private classification is wholly irrelevant to the organisation of the modern society where the major sphere of social life passes from the private to the public not merely in the sense that more and more activity is state activity but in the sense that more and more private activity becomes public in its scale and its effect in the sense that the oil company is felt to be as public as the State electric utility, the private hospital and the private school with their growing need for massive State subsidies, as public as the municipal hospital and the State School. It was further observed: "The structure of the modern State is such that public and private industry, autonomous statutory bodies, regional boards and Central Government departments all jostle for place. They carryon identical functions which are allocated in a haphazard fashion. Some, like the Post Office, are transmogrified from departments of State to autonomous bodies overnight, yet carry out the same task and retain the same privileges. No activity is typically Governmental in character nor wholly without parallels in private law. Even the most characteristic function may be delegated - as when the law and order function is exercised by private armies levied by executive or private service employed on occasion by Government agencies. The changes which have occurred during the last two decades are analysed by some in terms of 'a shift from private law, concerned with security of the individual to public law, concerned with welfare and social utility.' Others more correctly, in my view, have identified a shift in the prevailing individualist legal theory of the nineteenth century to the welfare oriented policies of modern socialist democracies, characterised, as these increasingly are, by the interpretation of public and private institutions and capital. The 'night-watchman' State is rapidly being replaced by a State whose functions range from welfare to commercial activities and from law and order to education." 175. More or less the same view has been expressed by Sue Arrowsmith in her Article "Judicial Review and the Contractual Powers of Public Authorities" published in the Law Quarterly Review, Vol. 106. 176. The 'night-watchman' State is rapidly being replaced by a State whose functions range from welfare to commercial activities and from law and order to education." 175. More or less the same view has been expressed by Sue Arrowsmith in her Article "Judicial Review and the Contractual Powers of Public Authorities" published in the Law Quarterly Review, Vol. 106. 176. An extract from the opinion of the author in the said Article which is indeed interest viz. reading, will reveal that this public law/ private law divide is now treated as out-dated and out-moded even in England which gave birth to such ideas, is quoted hereunder:- "How far do the public law principles of judicial review apply to the exercise by a Government body of its contractual powers? Despite the massive expansion of judicial review in the last two decades the courts still show some hesitation in applying these principles to the Government's contractual activities. For a long time there has been a tendency to see contract as a purely private matter and to assume that contractual activities are not subject to review. This is surely attributable in part to Dicey who encouraged us to believe that contract is a matter best left to the private law, and also perhaps to the influence of the concept of freedom of contract. The last few years have seen an increasing challenge to this traditional view: there has been a note able increase in the number of reported cases in which the exercise of contractual powers has been. challenged on public law grounds, and in several the courts have accepted that judicial review is available. However, it would be premature to say that the courts now accept that the contractual powers of public authorities are subject to review in the same manner as other powers of Government. Frequently it is said that a 'mere' or 'pure' contractual power is not reviewable, and that there must be some specific 'public law' element to a contractual decision before review is available. In some cases, on the other hand, the courts have not seen this as a limitation on review." "The law imposes obligations on contracting parties in many contexts, particularly where bargaining power is unequal, as it is likely to be in this situation. In some cases, on the other hand, the courts have not seen this as a limitation on review." "The law imposes obligations on contracting parties in many contexts, particularly where bargaining power is unequal, as it is likely to be in this situation. It has imposed similar obligations on social clubs, trades union and professional and sporting bodies whose jurisdiction depends entirely on contract, so why should it not do so on local authorities? From the citizens's point of view it is purely fortuitous whether a licensing scheme happens to involve a contractual relationship between himself and the public body. The Government may decide to adopt the contractual approach in order to be able to use contractual remedies, or for some other reason, or for no special reason at all; or it may rely purely on its unilateral regulatory power. Surely the rights of the citizen should not depend on which method is chosen, unless in designating the contractual method the legislature shows a clear intention to remove the protection usually given by public law. Whether public law obligations should be capable of express exclusion, at least in a contract which has been freely negotiated, is a more difficult point which cannot be examined in detail here. But certainly they should not be excluded merely because there happens to exist a contractual relationship into which they could, in theory, have been incorporated." "In support of this view the decision in the employment case of R. vs. East Berkshire Health Authority, ex-P. Walsh was cited to the Court. It was sought to distinguish Kelly as 'manifestly' involving an exercise of statutory power, although precisely how it was said to be different is not clear from the judgment. Slade L.J., who gave the main judgment on this point, refused to accept this suggested distinction between the 'public' and 'private' powers of a Government body: 'True it is' he said 'that the immediate origin of the power in question was a contract, consisting of an agreement for a lease. But the agreement itself would appear clearly to have been entered into in exercise of powers having a 'statutory or public' origin, viz., the powers conferred by sections 111 and 123 of the Local Government Act, 1972. But the agreement itself would appear clearly to have been entered into in exercise of powers having a 'statutory or public' origin, viz., the powers conferred by sections 111 and 123 of the Local Government Act, 1972. The suggestion that the grant of an agreement for a lease by a council would constitute the exercise of a power having a 'statutory or public' origin while the exercise of right reserved by that agreement to the lessor council would constitute the exercise of a power having a 'private' origin, in my view, comes near to playing with words; the ultimate origin of each power is surely the statute'. This statement was made in general terms and was not specifically directed to the tort of misfeasance in public office. However, as indicated, the Judge went on to state that it was unnecessary to pursue the question of how far this reasoning would apply in an action for judicial review, and confined the rest of this judgment to considering the scope of the authority's tortious liability. On this point he continued as follows: "All powers possessed by a public authority, whether conferred by statute or by contract, are possessed 'solely in order that it may use them for the public good' [see Wade's Administrative Law (6th ed. 1988 p.400)]. In the present context, in my judgment, it is not the judicial nature of the relevant power but the nature of the council's office which is the important consideration. It is the abuse of a public office, which gives rise to the tort." "This reasoning is purely equally applicable in the context of judicial review: the distinction between powers deriving directly from statute and those arising under a contract is an arbitrary and formalistic one. As suggested before, a public authority surely has no prima facie claim to the freedom of action enjoyed by private individuals in the exercise of contractual rights: it is the public nature of the body which should give rise to an obligation to treat citizens fairly and reasonably. As with licences, the mere existence of an agreement does not provide a strong argument for excluding such principles. Slade L.J. seemed inclined to accept that such powers should generally be subject to judicial review, but seemed to hesitate in endorsing such a principle because of the authority of the Walsh decision. As with licences, the mere existence of an agreement does not provide a strong argument for excluding such principles. Slade L.J. seemed inclined to accept that such powers should generally be subject to judicial review, but seemed to hesitate in endorsing such a principle because of the authority of the Walsh decision. It has been suggested, however, that the distinction between public and private law in the employment cases, whether at the substantive or procedural levels, is an anomaly which probably owes its survival to special factors concerned with employment law. It is a pity that the court in Hones did not go firmly with its instincts and confirm what seemed to be implicit in the earlier decisions, that the exercise of powers under a lease generally should be reviewable." "The law already recognises principles concerned with the public interest in the context of contracting such as the rule against fattening of discretion by contract and the rule requiring a Parliamentary appropriation before a party can enforce contractual payment against the Government. But general doctrines such as the rule against bad faith may also safeguard the public interest by, for example, preventing a procurement which is influenced by personal factors and does not represent the best value for money. It may be that problems have been seen previously in reviewing in this area because of two particular difficulties. One is the disruption which may occur to the supply of goods and services as a result of legal action; the other is the potential for hardship to innocent parties if a contract can be struck down for some breach of public law. These are important concerns which must be dealt with adequately if judicial review of procurement is to be accepted. But as I have argued in detail elsewhere, it is indeed possible to deal with them without refusing to review at all. Thus, for example, the principles of procedural fairness can be applied so as not to burden an authority unduly––a hearing should not be required in every case where it is proposed to refuse an award, while possible disruption from legal action can be minimised by a careful use of the Court's discretion to refuse relief. There is no reason, however, why procurement should be immune, in principle from the operation of the principles of judicial review. There is no reason, however, why procurement should be immune, in principle from the operation of the principles of judicial review. The decisions so far in England have concerned the award of contracts, but public law rights should apply equally to the exercise of contractual rights. It would be odd if the courts were to review a refusal to reaward a contract which had come to an end, as in England, but not to terminate a contract actually in existence. The possibility of review of the exercise of contractual rights in this area has already been recognised by the Canadian Courts." "In this brief survey it has been suggested that the perception of contract as a 'private' matter appears to have influenced the Courts' approach to the judicial review of the Government's contractual activities. In a number of cases the courts have looked for some special element of 'public law' before they would review the exercise of contractual powers, an approach which has produced some artificial distinctions. It has been suggested that it is difficult to see why the simple fact that the power in question is a contractual one should affect the scope of judicial review. It may be purely fortuitous whether a regulatory scheme involves a contractual relationship or whether it is carried out purely by unilateral regulation. Even when an activity has a parallel in the private sector- as with procurement, leasing or employment- public law principles designed to protect citizens should apply because of the public nature of the body, and they may also have some role in protecting the public interest. The mere existence of a contract in any of these cases is not a convincing argument for saying that the applicant should have negotiated for himself, the protection normally given by public law." "It is suggested, then, that the way forward now is for the courts to adopt the same approach to the judicial review of contractual powers as they do to the review of other activities of Government. In other words, they should accept that these powers are reviewable as a matter of principle but that review may be negated or limited by specific policy factors, rather than continue searching for some 'public law' element to the decision as a justification for applying public law doctrines to the case before them." ……… ……… ……… ……… ……… 177. In other words, they should accept that these powers are reviewable as a matter of principle but that review may be negated or limited by specific policy factors, rather than continue searching for some 'public law' element to the decision as a justification for applying public law doctrines to the case before them." ……… ……… ……… ……… ……… 177. Such opinions of the aforesaid English Authors are more relevant in India where Government, unlike in England, is a limited Government, limited by Constitutional obligation as enjoined under a written Constitution. It is also worthwhile in this connection to refer in this connection to the observation of Prof. Wade that all powers possessed by a public authority whether conferred by statute or by contract, are possessed solely in order that it may be used for public good (Prof. Wade Administrative Law, 6th Edition, 1988 page 400). 178. Such opinion of Prof. Wade is now a law in our country pronounced by the Supreme Court time and again in a number of judicial decisions. 179. The observations of Lord Denning MR in the case of O'Reilly vs. Mackman & Ors., reported in 1982(3) All. E.R. 680, also is indeed illuminating an extract of which from the said judgment is quoted hereunder–– "Private law and public law." "In modern times we have come to recognise two separate fields of law, one of private law, the other of public law. Private law regulates the affairs of subjects as between themselves. Public law regulates the affairs of subjects vis-a-vis public authorities. For centuries there were special remedies available in public law. They were the prerogative writs of certiorari, mandamus and prohibition. As I have shown, they were taken in the name of the sovereign against a public authority which had failed to perform its duty to the public at large or had performed it wrongly. Any subject could complain to the sovereign; and then the king's courts, at their discretion, would give him leave to issue such one of the prerogative writs as was appropriate to meet his case. But these writs, as their names show, only gave the remedies of quashing, commanding or prohibiting. They did not enable a subject to recover damages against a public authority, nor a declaration, nor an injunction. But these writs, as their names show, only gave the remedies of quashing, commanding or prohibiting. They did not enable a subject to recover damages against a public authority, nor a declaration, nor an injunction. This was such a defect in public law that the courts drew on the remedies available in private law, so as to see that the subject secured justice. It was held that if a public authority failed to do its duty and, in consequence, a member of the public suffered particular damage therefrom, he could sue for damages by an ordinary action in the courts of common law; ........... ……… ……… ……… ……… ……… Now that judicial review is available to give every kind of remedy, I think it should be the normal recourse in all cases of public law where a private person is challenging the conduct of a public authority or a public body, or of anyone acting in the exercise of a public duty." 180. The same view has been expressed by the Supreme Court in the case of Srilekha Vidyarthi and Common Cause. In the case of Common Cause (supra) Supreme Court held as follows: "40. Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of Constitutional powers by the High Court and the Supreme Court under Articles 226 and 32 has been categorised as power of 'judicial review'. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of fundamental rights guaranteed by the Constitution. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of fundamental rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other Articles dealing with fundamental rights, every executive action of the Government or other public bodies, including instrumentalities of the Government, or those which can be legally treated as 'authority' within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of this Court under Article 32 of the High Courts under Article 226 and can be validly scrutinised on the touchstone of the Constitutional mandates. 41. In a broad sense, therefore, it may be said that those branches of law which deal with the rights/duties and privileges of the public authorities and their relationship with the individual citizens of the State pertain to 'public law', such as Constitutional and administrative law, in contradiction to 'private law' fields which are those branches of law which deal with the rights and liabilities of private individuals in relation to one another. 42. The distinction between private law and public law was noticed by this Court in ........... of India vs. Escorts Ltd. in which the Court observed as under: (SCC p.344, para 102) 'Broadly speaking, the court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances.' 43. Public law field, since its emergence, is ever expanding in operational dimension. Its expanse covers even contractual matters." 181. Public law field, since its emergence, is ever expanding in operational dimension. Its expanse covers even contractual matters." 181. The contention of the respondents therefore that the impugned decision being in the realm of concluded contract is not open to Judicial Review is not tenable and the same is rejected. 182. Now therefore it is necessary for the Court to examine whether the impugned decision of the respondents can be said to be arbitrary and irrational and is violative of the right of the petitioners guaranteed under Articles 14 and 19(1)(a) of the Constitution. 183. After considering the respective submissions of the parties and the entire material on records we have got no hesitation to hold, not only the impugned decision is wholly arbitrary and in violation of Articles 14 and 19(1)(a) of the Constitution, the same is also ultra vires, the object and purpose of Prasar Bharati Act, 1990 and the statutory obligation of the Corporation under the Act as the decision to change time slot in favour of the added respondent Channel-8 has been made primarily with a view to earning more revenue, and clause I of the standard proforma of the agreement is ultra vires Article 14 of the Constitution. 184. So far as the case of M/s. H.P.C. Production is concerned, as pointed out hereinbefore, no agreement has been entered into in the standard proforma of the contract prepared by the respondents. 185. But in the case of M/s. Softline Multimedia & Ors. the writ petitioners entered into an agreement with the respondents in a standard proforma of agreement prepared by the respondents. 186. In clause-I of the said agreement it is stated that DD will have unfettered right to effect any change in the schedule time and day of the telecast (including change of channel without any notice) "however, whenever a change in the schedule/allotted time slot is made it shall be announced by DD at the originally scheduled time slot of telecast, while slotting the programme DD will have the option to shift the programme to any other slot deem fit by DD without assigning any reason with notice of two weeks". 187. It is worth noting in this connection that such clause in the agreement reserving unfettered right has also been challenged by the petitioners praying for quashing of the same. 188. 187. It is worth noting in this connection that such clause in the agreement reserving unfettered right has also been challenged by the petitioners praying for quashing of the same. 188. By the impugned order being annexure 'E' to the writ petition the petitioners communicated that due to unavoidable programme exigencies the programme of the petitioners currently running at 5.30 p.m. slot on Monday DD-l (Regional) will be shifted to 4 p.m. on DD-I (Regional) of same day and such change is effective with immediate effect. 189. In the impugned order therefore it was stated such change of time slot is made due to unavoidable programme exigencies. 190. But in the affidavit-in-opposition it is stated as pointed out hereinbefore by the respondents inter alia, that such change of time slot was made for accommodating the serial 'Ekak Dasak Satak' based on a novel of Sri Bimal Mitra, produced by Channel-8, the added respondents as the respondents decided to telecast the said serial to give a 'cultural tilt' and solidity of contract; to a programme at the 5-30 p.m. time slot; in terms of contract and viewership the respondents felt that the said serial has natural claim to be telecast to a viewers friendly time slot and the same is a policy decision; the Corporation is facing a financial crunch and as such the prospect of earning better revenue has become very important factor to be taken into account in shaping its policy and Channel-8 has offered double the amount which is being paid by the writ petitioners per week. 191. It has been argued by the learned Counsel's for the respondents the discretion of the respondents under the agreement change the time slot being unfettered and the petitioners having entered into such contract with eyes open, cannot invoke the writ jurisdiction of the court to riggle out of the terms of the contract. 192. It is, however, never the case of the petitioners that they want to come out of the terms of the contract. 193. 192. It is, however, never the case of the petitioners that they want to come out of the terms of the contract. 193. On the contrary it is the petitioners who are complaining of arbitrary, violation of contract by the respondents in that the respondents admittedly having approved their programme and having allotted the 5.30 p.m. time slot which is admittedly viewers friendly the same cannot be changed arbitrarily even during the subsistence of the contract and the respondents being the public authorities and State within the meaning of Article 12 of the Constitution their actions must always be free from arbitrariness and informed with reasons and the discretion of State or its instrumentality or of a public authority can never be unfettered. 194. It has been rightly submitted by Mr. Pal that the concept of unfettered discretion of a State or a public authority is unknown to our Constitutional scheme and is antithesis to rule of law. 195. As observed by Prof. Wade in his aforesaid book powers of all other public authorities are subordinate to the law just as much in the case of Crown and the Ministers as in the case of Local Authorities and Ors. public bodies and all such sub-ordinate powers have two inherent characteristics, first they are all subject to legal limitations; there is no such thing as observed or unfettered administrative power, second and consequently it is always possible to any power to be abused. 196. Such principle is even more true in India where we have a written Constitution which is supreme and the Government is limited by the Constitution. 197. All actions of the Government and the public authorities are subject to the Constitutional limitations including Article 14 of the Constitution which guarantees equality of opportunity before law and equal protection of law for all citizens. All actions of the State therefore, whatever might be the field, will be subject to limitations of Article 14 of the Constitution and therefore must be free from arbitrariness and was informed with reasons. The discretion of the public authorities therefore cannot be unfettered but is subject to such Constitutional limitations. 198. All actions of the State therefore, whatever might be the field, will be subject to limitations of Article 14 of the Constitution and therefore must be free from arbitrariness and was informed with reasons. The discretion of the public authorities therefore cannot be unfettered but is subject to such Constitutional limitations. 198. Question therefore of reserving of an unfettered discretion, which is wholly unconstitutional for by Prasar Bharati Corporation which is a statutory bodies and State within the meaning of Article 12 of the Constitution and which is performing public and statutory duties as enjoined upon it by the Prasar Bharati Corporation Act, 1990 by carrying out broadcasting and telecasting as a public services for the purpose of educating, informing and entertaining the public cannot arise and the same is liable to be struck down being ultra vires Article 14 of the Constitution. As observed by Professor Wade–– "The common thing of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely––that is to say, it can validly be used only in right and proper way which Parliament when conferring it is presumed to have intended. (Wade, 7th Edn. Page 391) This is the precise content of the wall-known concept of malice in law. It is also treated as an abuse of the trust, express or implied, reposed in an authority." 199. The Prasar Bharati Act, 1990 clearly indicates the nature and purpose of the entrustment in favour of the Corporation. The different powers enumerated in the Act are patently intended to facilitate its proper functioning. No particular power can, however, be so construed as to enable the Corporation to act in a manner in disregard of its primary purpose of defeat its basic obligation. 200. In this connection the decisions of the Supreme Court in the case of R. M. Seshadri vs. Tanjore & Ors., reported in AIR 1954 S.C. 847 and in the case of P.H. Kalishal vs. Union of India, reported in AIR 1979 S.C. 1457 , may be referred to. 201. 200. In this connection the decisions of the Supreme Court in the case of R. M. Seshadri vs. Tanjore & Ors., reported in AIR 1954 S.C. 847 and in the case of P.H. Kalishal vs. Union of India, reported in AIR 1979 S.C. 1457 , may be referred to. 201. It shocks the conscience of the court that a public and statutory bodies like the Corporation performing public duties can incorporate such an unconstitutional clause reserving unfettered discretion and can even claim such unfettered discretion before the court which is antithesis to Rule of law. 202. When in the new millennium the demand for the citizens appears to be for right to information and total transparency in the functioning of the Government and public bodies, a public body like the Corporation claiming unfettered discretion is trying to strike at one of the basic ingredients of Rule of Law, namely, fairplay in all administrative action and in actions of public bodies. 203. It also appears to us that although in the impugned order it has been stated that a change of time slot in question has been made for programme exigencies, in the affidavit some other reasons have been given which certainly cannot come within the meaning of exigencies of programme. 204. It appears after having indicated in the order that such change have been made because of exigencies of programme the same was sought to be improved upon by giving some other reasons for such change to time slot in the affidavit, which, however, is not permissible in law as hold by the Supreme Court in the case of Mahendra Singh Gill, reported in AIR 1978 S.C. 851 . The decisions in the case of Gordhandas Bhanji, reported in AIR 1952 S.C. 16 may also be referred to. 205. When the respondents have stated in the impugned order that such change of time slot have been made for the exigencies of programme obviously the same would mean because of emergent or urgent need or demand which is unavoidable such charge is made. 206. The reason disclosed in the affidavit also for such change of time slot clearly appears to us to be wholly arbitrary and in gross violation of Article 14 of the Constitution. 207. 206. The reason disclosed in the affidavit also for such change of time slot clearly appears to us to be wholly arbitrary and in gross violation of Article 14 of the Constitution. 207. The Prasar Bharati Corporation being the creature of the statute namely, the Prasar Bharati Act, its powers and functions are circumscribed strictly by the provisions of the Act. 208. Under the provisions of the said Act it has to function as a public broadcasting services and it is its primary duty to organise and educate public broadcasting service for informing, educating and entertaining the public and to ensure a balanced development of broadcasting on radio and television. It is also required to take appropriate steps to ensure that broadcasting is conducted as public service to provide and produce programmes. 209. No provisions of the Act either expressly or impliedly permits the Corporation to carryon its aforesaid public duty with a profit motive for earning more revenue although section 12(7) of the Act empowers the Corporation to determine and levy fees and other service charges for or in respect of the investment and such programmes as specified by regulation, subject to the limits determined by the Central Government. On the contrary section 17 of the Act clearly provides that for the purpose of enabling the Corporation for discharge its function efficiently under this Act, the Central Government may, after due appropriation made by Parliament by law in this behalf, pay to the Corporation in each financial year the proceeds of the broadcast receiver licence fees, if any, as reduced by the collection charges and such other sums of money as that Government considers necessary. 210. Under the provisions of the Act itself therefore it is for the Central Government to take appropriate steps for giving grants to the Corporation for enabling the Corporation to discharge its functions efficiently. 210. Under the provisions of the Act itself therefore it is for the Central Government to take appropriate steps for giving grants to the Corporation for enabling the Corporation to discharge its functions efficiently. If the Corporation is really facing financial crunch as alleged by the Corporation and the Central Government is not taking appropriate steps under section 17 of the said Act for giving grants to the Corporation to enable to discharge its function efficiently and asking the Corporation to earn its own revenue for running of the Corporation, the same does not entitle the Corporation to act in a manner de hors the provisions of the Act and its obligation under the Act by functioning like a trader or businessman to earn more instead of functioning as a public service broadcasting for the purpose of informing, educating and entertaining the members of the public, which is a statutory obligation of the Corporation. 211. This is of course not to say the Corporation is not entitled to charge anything or earn some revenue while permitting a producer to telecast this programme. Even though functioning as a public service broadcasting for the purpose of educating and entertaining the public while permitting a producer to telecast his programme by selling its time slot, it can certainly charge some amount, as it is being done by the Corporation. In fact section 12(7) of the Act empowers the Corporation to determine and levy fees and other charges. 212. But once after negotiation with a producer it approves a particular programme of a producer for telecasting for certain period and also determine and levy fees and charge in respect thereof during the subsistence of the period of the agreement itself, the Corporation certainly thereafter cannot unsettle such agreement and sell the same time slot even before the expiry of the agreement of with the original producer, to another producer because the Corporation will get more money from the new producer. 213. If such conduct on the part of a public authority is permitted there will be no certainty at all of the agreement entered into by a citizen with the State or a public authority and there will be no fairness in State action. Such conduct of the respondent therefore is wholly arbitrary, unfair, irrational and violative of Article 14 of the Constitution. 214. Such conduct of the respondent therefore is wholly arbitrary, unfair, irrational and violative of Article 14 of the Constitution. 214. To permit such action on the part of the Prasar Bharati Corporation will also mean that after entering into such contract which involves statutory and public element as pointed out hereinbefore, is to enable the Corporation to riggle out of the same for making more profit. Furthermore to permit the same may lead to a absolutely preposterous situation inasmuch as under such circumstances the Corporation will also be entitled to modify or cancel the new contract even during the period of its subsistence, entered into with the new producer for getting more revenue if a third producer offers even more amount for permitting him to telecast his programme in the same time slot. The result will be there will be no certainty for a producer when he enters into an agreement with Prasar Bharati Corporation for telecasting his programme that the Corporation will however the agreement entered into with him and permit him to telecast his programme for the entire period agreed to by the parties. 215. The change of time slot in the manner aforesaid will also be wholly unreasonable and arbitrary as the same will cause serious prejudice to the petitioners. 216. It is not disputed that the programme of the petitioners which have been permitted to telecast by the respondents are sponsored programmes. It is also not disputed that in such sponsored programme, the success of the programme and the ability of the producer to continue telecasting of this programme in respect of all its episodes approved by the Corporation almost entirely depends on the number of commercials and advertisements it can obtain who are permitted to use certain portion of the time slot allotted to the producer. It cannot also be disputed that a particular time slot which is more 'viewers friendly' that is when it is expected to be watched by maximum number of viewers, attracts more advertisements and commercials than a time slot when a programme is expected to be watched by a lesser number of viewers. It cannot also be disputed that a particular time slot which is more 'viewers friendly' that is when it is expected to be watched by maximum number of viewers, attracts more advertisements and commercials than a time slot when a programme is expected to be watched by a lesser number of viewers. Although the respondents in their affidavit have denied the claim of the petitioners that by their own effort they have developed that particular time slot commercially, in the affidavit-in-opposition, the respondents themselves have admitted that 5.30 p.m. time slot is 'viewers friendly', in fact, it has been stated in paragraph 15 of the affidavit-in-opposition, while explaining the reason why time slot for the petitioners have been changed and the same is sought to be given to Channel-8 for telecasting its serial 'Ekak Dasak Satak' that the respondents felt that such a serial has a natural claim to be telecast in a viewers friendly time slot. 217. When the respondents therefore admit that 5.30 p.m. time slot is viewers friendly which admittedly was allotted to the petitioners after approval of their programme which is to continue for the period which has already been permitted by the Corporation, it is wholly arbitrary for the respondents to change such time slot to 4 p.m. and thereby deprive the petitioners of such 'viewers friendly time slot' even before expiry of the agreement with the petitioners for furthering the added respondent Channel 8. 218. We are also of the view that by such action the Corporation has made a hostile discrimination against the petitioner; notwithstanding the fact that the petitioners are paying all the fees and charges as fixed by the Corporation and the agreement between the parties was subsisting, the corporation is seeking to favour Channel 8 by giving it the same time slot as it wanted to pay more. An unreasonable classification therefore is made between a producer who is already paying fees and charge fixed by Corporation and affluent producer who has ability to pay much more. 219. It is also not clear what has been meant by the respondents by stating that they decided to telecast the said serial 'Ekak Dasak Satak' to give "a cultural tilt and solidity of content to a programme" at the said time slot. 219. It is also not clear what has been meant by the respondents by stating that they decided to telecast the said serial 'Ekak Dasak Satak' to give "a cultural tilt and solidity of content to a programme" at the said time slot. Unless it is decided by the respondents that the musical programme of the petitioners, which admittedly the respondents approved (after fulfilling of all conditions and after examining the pilot cassettes) lacks cultural tilt and solidity of content and such programme is so culturally inferior to 'Ekak Dasak Satak' that it requires immediate replacement, the question of taking such decision of giving cultural tilt cannot arise. That is, however, not the case of the respondents. It has not been disclosed, in absence of any regulation framed under the Act who has taken the decision about giving cultural tilt and solidity programme" how and on what basis. As it will appear hereinafter that the fundamental right of a citizen to freedom of speech and expression also includes the right to inform, educate and entertain the public by the best possible method through an agency of one's choice which is only subject to reasonable restriction which again can be imposed by law. But admittedly no regulation has been framed. Then how and what basis such decision could be taken and by whom? When such change of time slot from 'viewers friendly' to less viewers friendly will affect such fundamental right of the petitioners, whether a serial based on a famous novel is culturally superior than a musical programme is indeed a vexed and difficult question and cannot depend on the whims and caprice of the officers of D.D. but same objective tests are required to be framed. 220. It is submitted by the learned Counsel appearing for the respondents under section 12 of the Prasar Bharati Corporation Act it is the duty of the Corporation not only to organize and conduct public broadcasting services to inform, educate and entertain public but also to ensure a balanced development of broadcasting on radio and television. It has been submitted that for fulfilment of the aforesaid object, the aforesaid serial has been chosen in preference to the musical of the petitioners. 221. No such case has been made out by the respondents in their affidavit and such submission has been made only at the time of hearing. It has been submitted that for fulfilment of the aforesaid object, the aforesaid serial has been chosen in preference to the musical of the petitioners. 221. No such case has been made out by the respondents in their affidavit and such submission has been made only at the time of hearing. But if that is really the reason for seeking to displace the existing producer like the petitioner from its time slot during the subsistence of the agreement entered into between the parties, how the same will help to ensure a balanced development of broadcasting on television. If by such contention it is sought to be meant that along with musical programme there should also be serials based on famous novel of famous literatures, such decision has to be taken by the respondents at the time of considering of a proposal of a producer before its approval and before entering into agreement, based on proper materials, and not after entering into agreement. 222. It appears that specific allegation of the writ petitioners in the case of M/s. H.P.C. Production in paragraph 9 of the affidavit-in-reply is that the percentage of total time utilised for telecast of daily soaps vis-a-vis total available time earmarked by Doordarsan Kendra, Calcutta for sponsored programme is also about 85% and the time which is being utilised for arising weekly programme is as low as 15% and such a ratio has also created a serious imbalance in the programme of Doordarsan Kendra Calcutta which, according to the petitioner, is detrimental to the interest of the viewers and the creative producers like the petitioner. In paragraph 7 of the said affidavit-in-reply it has also alleged that excepting Doordarsan Kendra, Calcutta all other Kendras in the country have a balanced programme containing programme of diverse nature and variety. 223. It is, however, not for this court for the purpose of the present proceeding to go into the question whether a proper balance in programme in terms of the obligation of the Corporation under the Act is being maintained by Doordarsan Kendra, Calcutta. 224. 223. It is, however, not for this court for the purpose of the present proceeding to go into the question whether a proper balance in programme in terms of the obligation of the Corporation under the Act is being maintained by Doordarsan Kendra, Calcutta. 224. But fact remains nothing has been disclosed in the affidavit, in spite of challenge of the decision that as such decision is arbitrary and is violative of Articles 14 and 19 (1) (a) of the Constitution, on what basis the decision was taken that serial 'Ekak Dasak Satak' because of cultural tilt and solidity of programme has a natural claim to viewers friendly slot at 5.30 p.m. and the requirement to do so is so urgent that the existing programmes of producer being the petitioner which are already being telecast in such time slot after having duly approved by the respondents required to be dislodged therefrom even before expiry of the period of agreement. 225. It has also been stated in the affidavit-in-opposition that such a decision has been taken as a policy decision of the respondent No.1 that is Prasar Bharati Corporation and the same therefore cannot be questioned. 226. In spite of repeated queries from the court the respondents have failed to produce any document to show that such policy decision has been taken by Prasar Bharati Board upon which under section 3(4) of the Act the General Superintendent's direction and Management of the Affairs of the Corporation has vested and which Board under the aforesaid provisions can exercise such power and do all such acts and things as being exercised or done by the Corporation under the Act. The respondents even have failed to produce any documents to show that at least the policy decision has been taken by the executive members of the Board who under section 5 of the Act is chief executive of the Corporation and exercise such powers and discharge such functions of the Board as may be delegated to him subject to the supervision and control of the Board. 227. Mr. Sarkar also appearing for Prasar Bharati Corporation has submitted inter alia that Doordarsan Kendra, Calcutta which is a unit of the Corporation is empowered to take policy decision in respect of the said Kendra. But it has not been shown how it is so empowered. 228. 227. Mr. Sarkar also appearing for Prasar Bharati Corporation has submitted inter alia that Doordarsan Kendra, Calcutta which is a unit of the Corporation is empowered to take policy decision in respect of the said Kendra. But it has not been shown how it is so empowered. 228. That apart in the affidavit it has been stated that such a policy decision is of the respondent No.1 that is the Corporation itself and no material has been produced before this court in spite of repeated queries from the court such decision has been taken by which officer of the Doordarsan Kendra, Calcutta. 229. The affidavit-in-opposition has been affirmed on behalf of the respondents by the Assistant Director of the said Doordarsan Kendra who has affirmed the relevant paragraphs as true to his knowledge. But the Assistant Director being not even the Station Director certainly cannot take a policy decision for the Corporation or even for the concerned Kendra unless such power is delegated to him by the appropriate authority. No materials has been produced before the court to show that the Assistant Director has been so delegated with such power. 230. It also appear to us that the statement as to such alleged policy decision is absolutely vague and it has not even been clearly disclosed what is the policy of the respondent notwithstanding the challenge of the petitioners, that the impugned decision of the respondents are violative of Articles 14 and 19(1)(a) of the Constitution. 231. The contention of the respondents that since the same is a matter of policy the same cannot be questioned is also not tenable. 232. It is true the court will not interfere with the policy decision of the State or its instrumentalities and even if such a policy appears to the court to be foolish it is not for the court to substitute its own satisfaction for that of the State or its instrumentalities and to decide what should be better policy. 233. But it is equally well settled if such policy is arbitrary or mala fide, it can certainly be judicially reviewed. Reference may be made in this connection to the decision of the Supreme Court reported in AIR 1973 SC 106 , Bennett Caleman and Co. Ltd. & Ors. vs. Union of India; J. T. 1994 (2) SC 569, State of U.P. vs. U.P. University Colleges Petitioners's Association; and 1995(1) All. Reference may be made in this connection to the decision of the Supreme Court reported in AIR 1973 SC 106 , Bennett Caleman and Co. Ltd. & Ors. vs. Union of India; J. T. 1994 (2) SC 569, State of U.P. vs. U.P. University Colleges Petitioners's Association; and 1995(1) All. E.R. 611, R. v. Secretary of State for Foreign Affairs, ex parte would Development Movement Ltd. 234. The trial court although has not held that the impugned decision is not judicially reviewable, has not inferred with the order on the ground that as there is no patent mala fide in the impugned decision, some discretion should be given to the respondents in selecting the programme particularly when the same is a matter of policy. 235. The learned Judge has completely failed to consider that court can also interfere with the arbitrary decision of the State and its instrumentalities or of a public authority if the same is violative of Article 14 of the Constitution and even if the same is a matter of policy, the same can be interfered with if it is arbitrary. 236. As pointed out hereinbefore although the respondents claimed immunity from judicial review of their decisions on the ground that such decision has been taken as a matter of policy, failed to satisfy this court that such policy at all does exist or if it does exist it has been formulated by an authority having jurisdiction to do so. 237. It is to be remembered in this connection that Prasar Bharati Corporation and all its different units being different Doordarsan Kendras in different States, being creature of the statute namely, Prasar Bharati Act and having been invested with the public duty of running the broadcasting service as a public service for the purpose of educating, informing and entertaining the people and to ensure that the broadcasting is conducted as a public service to provide and produce programmes, for the purpose of performing its duties and obligation under the Act and in exercising its functions thereunder, a policy decision in respect of the same has to be in consonance with such purpose and object of the Act and such public duties of the Corporation and not de hors the same. If any policy is framed which is apart from arbitrary is also against its primary duty as enjoined upon the Corporation, namely, to organize and conduct public broadcasting services to inform, educate and entertain the public and to ensure a balance development of broadcasting on radio and television and to ensure that broadcasting is conducted as a public service to provide and produce programme, the same will be ultra vires the provisions of the Act and cannot be sustained. 238. That apart as the Prasar Bharati Corporation in the matter of dealing with producer for the purpose of ensuring that the broadcasting is conducted as a public service to provide and produce programme in the matter of fulfilment of its duty under the Act cannot act arbitrarily and any arbitrary decision may affect right of the producer under Article 14 as also Article 19(1)(a) of the Constitution, a policy decision has to be taken only by an authority who has power and authority under the Act to take such decision. Otherwise there is every likelihood to pass off the whims and caprice of a particular officer of the Corporation as a policy decision. 239. For the reasons stated above we therefore have no hesitation to hold that the impugned decision of the respondents is wholly arbitrary, unreasonable and unfair when it is tested in the anvil of Article 14 of the Constitution and is violative of the same. 240. The trial court although has not held that the right of the petitioner under Article 19(1)(a) of the Constitution cannot be affected by arbitrary decision of the respondents, however, has held that such right of the petitioner has not been affected as the respondents have not terminated the agreement entered into with the petitioners but merely has changed the time slot from 5.30 p.m. to 4 p.m. and in exercise of such right the petitioner cannot claim to have their programme telecast in the same time slot indefinitely. 241. All citizens including a producer who wants to telecast his programme have the fundamental right to the freedom of speech and expression under Article 19(1)(a) of the Constitution, subject to the provision of any law imposing reasonable restrictions under Article 19(2) of the Constitution. 242. 241. All citizens including a producer who wants to telecast his programme have the fundamental right to the freedom of speech and expression under Article 19(1)(a) of the Constitution, subject to the provision of any law imposing reasonable restrictions under Article 19(2) of the Constitution. 242. The Corporation is really an instrumentality of the State established to provide convenient mode and medium for the fuller enjoyment of the aforesaid right guaranteed under the Constitution. 243. It has rightly been contended by Mr. Sakti Nath Mukherjee also appearing for the petitioner that power to enter into a commercial contract or accept any commercial advertisement under such document really cannot alter or affect its basic character or Constitutional obligation of the Corporation and all incidental or ancillary powers of the Corporation are supposed to be subservient to the basic obligation of Corporation. 244. The fact that 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 and entertained has been settled by the Supreme Court in the case of Secretary, Minister of Information and Broadcasting, Government of India & Ors. vs. Cricket Association of Bengal & Ors., reported in (1995) 2 SCC 161 : AIR 1995 SC 1236 . 245. It has been held whereas the former is the right of the telecaster and the latter is that of the viewers. 246. It has been further held by the Supreme Court in no uncertain terms in the aforesaid decision that right to freedom of speech and expression under Article 19(1)(a) of the Constitution includes the right to disseminate information by the best possible method through an agency of one's choice so long as the engagement of such agency is not in contravention of Article 19(2) of the Constitution and does not amount to improper or unwarranted use of the frequencies. 247. In the said case the dispute was between the Cricket Association of Bengal and the concerned Ministry of Central Government relating to telecasting of the cricket matches. 248. The Supreme Court held in the said case the promotion of sports also includes its popularization through all legitimate means. For the said purpose they are duty bound to select the best means and methods to reach the maximum number of listeners and viewers. 249. 248. The Supreme Court held in the said case the promotion of sports also includes its popularization through all legitimate means. For the said purpose they are duty bound to select the best means and methods to reach the maximum number of listeners and viewers. 249. In this connection it is worthquoting the extracts of certain portions of the judgment in different paragraphs when Their Lordships have summarised the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2) of the Constitution. "14. In Odyssey Communications (P) Ltd. vs. Lokvidayan Sanghatama it was held that the right of citizens to exhibit films on Doordarshan subject to the terms and conditions to be imposed by Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19(1)(a) which can be curtailed only under circumstances set out under Article 19(2). The right is similar to the right of a citizen to publish his advertisement hearings, etc. subject to the terms and conditions of the owners of the media." "43. We may new summarise the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2). The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self-fulfilment. It enables people to contribute to debates on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one's opinion without interference to as large a population in the country, as well as abroad, as is possible to reach." "44. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one's opinion without interference to as large a population in the country, as well as abroad, as is possible to reach." "44. This fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2) of the Constitution." "45. The burden is on the authority to justify the restrictions.............................. Unlike in the American Constitution, limitations on fundamental rights are specifically spelt out under Article 19(2) of our Constitution. Hence no restrictions can be placed on the right to freedom of speech and expression on grounds other than these specified under Article 19(2)." "75. ................. 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 and entertained. The former is the right of the telecaster and the latter that of the viewers." "78. There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies. What is further, the electronic media is the most powerful media both because of its audio-visual impact and its widest reach covering the section of the society where the print media does not reach. The right to use the airwaves and the content of the programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the society free from control both of the Government and the dominant influential sections of the society. This is not disputed. That is why the need to have a central agency representative of all sections of the society free from control both of the Government and the dominant influential sections of the society. This is not disputed. But to contend on that account the restrictions to be imposed on the right under Article 19(1)(a) should be in addition to these permissible under Article 19(2) and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of the frequencies as well as by the wider reach of the media. If the right to freedom of speech and expression includes the right of disseminate information to as wide a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. It may warrant a greater regulation over licensing and control and vigilance on the content of the programme telecast. However, this control can only be exercised within the framework of Article 19(2) and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures. The only limitation on the said right is, therefore, the limitation of resources and the need to use them for the benefit of all. When, however, there are surplus or unlimited resources and the public interests so demand or in any case do not prevent telecasting, the validity of the argument based on limitation of resources disappears. It is true that to own a frequency for the purposes of broadcasting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject. That is why the doctrine of fairness has been evolved in the US in the context of the private broadcasts licensed to share the limited frequencies with the central agency like the FCC to regulate the programming. "120. The law on the subject discussed earlier makes it clear that the fundamental right to freedom of speech and expression includes the right to communicate effectively and to as large a population not only in this country but also abroad, as is feasible. There are no geographical barriers on communication. Hence every citizen has a right to use the best means available for the purpose. At present, electronic media, viz., TV and radio, is the most effective means of communication. The restrictions which the electronic media suffers in addition to those suffered by the print media, are that (i) the airways are a public property and they have to be used for the benefit of the society at large, (ii) the frequencies are limited, and (iii) media is subject to pre-censorship. The other limitation, viz., the reasonable restrictions imposed by law made for the purposes mentioned in Article 19(2) are common to all the media." "122. We, therefore, hold as follows:- (i) The airways or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since the electronic media involves the use of the airwaves, this factor creates an inbuilt restriction on its use as in the case of any other public property. (ii) The right to import and receive information is a species of the right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property, viz., the airwaves, involved in the exercise of the right and can be controlled and regulated by the public authority. However, this right to have an access to telecasting has limitations on account of the use of the public property, viz., the airwaves, involved in the exercise of the right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved in the use of the electronic media is in addition to the restrictions imposed on the right to freedom of speech and expression under Article 19(2) of the Constitution." 250. In the case of Tata Press Limited vs. Mahanagar Telephone Nigam Ltd., reported in 1995(5) SCC 139 , a three Judges Bench of the Supreme Court has held even a commercial speech to be a part of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. In the Motion Picture Association case reported in 1999(6) SCC 150 the Supreme Court followed its decision in Cricket Association of Bengal case (supra). 251. Such being the position of law when a procedure approaches the Prasar Bharati Corporation or any of its units or telecasting his programme for the purpose of entertaining the members of the public, the same is a part and parcel of his right to freedom of speech and expression as guaranteed under Article 19(1)(a) of the Constitution which include the right to disseminate information by the best possible method through an agency of one's choice. So long as such engagement of the agency, here the Corporation, is not in contravention of Article 19(2) of the Constitution. 252. The Corporation therefore cannot restrict such fundamental right of the petitioner under Article 19(1)(a) of the Constitution. Such right is subject to only reasonably restriction under Article 19(1)(a) of the Constitution, but such reasonable restriction can be imposed only by a law. 253. No doubt, such right of the petitioners to disseminate information by the best possible method through an agency of one's choice in the instant case the Corporation, will also be the subject in some inherent limitations like availability of frequency and a particular time slot. 254. 253. No doubt, such right of the petitioners to disseminate information by the best possible method through an agency of one's choice in the instant case the Corporation, will also be the subject in some inherent limitations like availability of frequency and a particular time slot. 254. In the instant case admittedly after fulfilment of all conditions and formalities for the purpose of telecasting a programme, and the programme of the petitioners was admittedly selected and approved by the respondents for the purpose of entertaining the members of the public and admittedly also the petitioners having been given a viewers friendly time slot at 5.30 p.m. obviously because it was thought by the respondent that the programme of the petitioner is fit for such time slot, the petitioners are certainly entitled to continue their programme in the aforesaid time slot for the entire period for which he was permitted to telecast such programme under the agreement and such right of the petitioners cannot be interfered with arbitrarily as it has been done in the instant case. It has been submitted that as the agreement of the petitioners has not been cancelled but merely he has been shifted to a different time slot, from 5.30 p.m. to 4p.m., it cannot be said that there has been any arbitrary, interference with the right of the petitioners under Article 19(1)(a) of the Constitution. 255. By the impugned decision although the agreement with the petitioners has not been cancelled, but shifting the programme from the viewers friendly slot at 5.30 p.m. to 4 p.m. which is admittedly less viewers friendly certainly affects the right of the petitioners of freedom of speech and expression. 256. In exercise of such right which include the right to disseminate information by the best possible method, the petitioners have also the right to select the best means and methods to reach the maximum number of listeners and viewers. By telecasting their musical programme at 5.30 p.m. which is a viewers friendly slot the petitioners so long were able to reach the maximum number of listeners and viewers which will not be possible now because of such shifting and the before such right of the petitioner under Article 19(1)(a) of the Constitution is certainly affected. 257. By telecasting their musical programme at 5.30 p.m. which is a viewers friendly slot the petitioners so long were able to reach the maximum number of listeners and viewers which will not be possible now because of such shifting and the before such right of the petitioner under Article 19(1)(a) of the Constitution is certainly affected. 257. It is not also disputed that the continuity and existence of such type of programme which are sponsored programmes are very much dependent on the availability of commercials and advertisements which enable the producers including the petitioner to pay not only the telecast charges to the respondent but to give them additional revenue and to earn revenue themselves; but because of shifting of the programme to less viewers friendly slot there will be lesser chance of getting commercials and advertisements as the organisation who gives such commercials and advertisements will also have a lesser number of viewers, affecting the very viability of such programme. 258. It has been submitted by the learned Counsel appearing for the respondents that the petitioners because of such shifting for apprehending affection of their commercial interest as it will appear from the writ petition and the same therefore cannot be affection of the right of freedom of speech and expression. 259. Similar type of argument was already rejected by the Supreme Court in the aforesaid decision of the Cricket Association of Bengal's case (supra). It was the submission of the Central Government before the Supreme Court in the said case that the Cricket Association of Bengal in seeking of telecasting the cricket matches through Doordarsan was not really promoting sports for popularization the same but the whole purpose was to earn revenue. 260. Rejecting such contention it was held by the Supreme Court that in asserting such right the Cricket Association of Bengal incidentally can certainly earn also some revenue. 261. The fact therefore in the instant case the petitioners by telecasting their programme for the purpose of disseminating information for entertaining the members of the public is also earning revenue and the same will also be effected because of shifting of the programme does not mean that because of such arbitrary shifting of the programme of time slot their right of freedom of speech and expression is not affected. 262. 262. We therefore hold that the impugned arbitrary shifting of the time slot of the petitioners from viewers friendly at 5.30 p.m. to less viewers friendly time slot at 4 p.m. certainly affects the right of freedom of speech and expression of the petitioners as guaranteed under Article 19(1)(a) of the Constitution and therefore such decision is liable to be struck down particularly when such restriction was not by any law. 263. It has been submitted by the learned counsel appearing for the respondents that some amount of discretion have to be given to them in the matter of selecting the programmes and also in the matter of allotment of a particular time slot for a particular producer but for which it will not be possible for DD to function effectively. 264. We agree that some discretion has to be given to the DD in such matters. 265. But as pointed out hereinbefore such discretion cannot be an unfettered discretion as claimed by the respondents, but such discretion has to be exercised judiciously and reasonably in the context of a particular situation in consonance with Articles 14 and 19(1)(a) of the Constitution and consistent with the purpose of the Prasar Bharati Act and the duties and obligations enjoined upon the Corporation. 266. It is worth nothing in this connection although the Supreme Court in the case of Sterling Computer and Tata Cellular has held that for the proper functioning of the administration, "some freedom at the joint" must be given to the authorities, it has also been held that such discretion however cannot be used arbitrarily. 267. The difficulties which may be faced by the Corporation in this regard appears to be its own creation. 268. Section 32(1) empowers the Central Government to make rules for carrying out the provision of the Act. 269. Section 33(1) of the Act empowers the Corporation to make regulations not inconsistent with the Act and the Rules for enabling it to perform its functions under the Act. 270. Although almost three years have passed since the coming into operation of the Act no regulation has yet been framed by the Corporation under section 33(1) of the Act for enabling it to perform its function under the Act, as we are informed by the learned counsels appearing for the Corporation. 271. 270. Although almost three years have passed since the coming into operation of the Act no regulation has yet been framed by the Corporation under section 33(1) of the Act for enabling it to perform its function under the Act, as we are informed by the learned counsels appearing for the Corporation. 271. But because of the non-framing of the regulation it appears that the Corporation is performing its functions under the Act under executive orders. 272. Although the same no doubt is permissible so long the regulation is not framed, non-framing of the regulation does not give liberty to the functionaries of the Corporation to act arbitrary in violation of Articles 14 and 19 of the Constitution or de hors the purpose of the Act and its duty and obligation under the Act. 273. As it will appear from section 33(1) of the Act that even the regulation to be framed thereunder has to be consistent with the Act and the Rules and therefore till such regulation is framed the executive orders to be passed for enabling the Corporation to perform its functions under the Act have to be consistent with the Act. 274. While it is not for the Court to advise the Corporation in the matter of performance of its duty and carrying on its functions under Act, we can only hope that under section 30 of the Act the Corporation will frame regulations consistent with the purpose of the Act and its duty and obligation thereunder for carrying out its functions under the Act without any further delay, which will certainly lessen the chance of arbitrary action on the part of the functionaries of the Corporation by introducing an elements of certainty in their action and making such actions more transparent. 275. The present cases in hand, in our view, is a clear example how because of the absence of regulations the functionaries of the Corporation are acting arbitrarily. 276. We have already discussed hereinabove why the decision of the respondents to change time slot in the manner aforesaid is arbitrary. 277. Unfortunately, the matter however does not stop at that. 275. The present cases in hand, in our view, is a clear example how because of the absence of regulations the functionaries of the Corporation are acting arbitrarily. 276. We have already discussed hereinabove why the decision of the respondents to change time slot in the manner aforesaid is arbitrary. 277. Unfortunately, the matter however does not stop at that. Although no malice in fact has not been pleaded by the petitioners specifically, the facts which have emerged from the materials of records, even make the reason given by the respondents in their affidavit for change of the time slot in favour of the added respondent doubtful and can create a reasonable apprehension in the mind of a citizen that such change has been made to favour the added respondent Channel-8. 278. One of the reasons stated in the affidavit for taking the impugned decision was that the Channel 8 was offering much more money than the existing producers. But it will appear from the affidavit-in-opposition of the added respondent, M/s. Channel 8 that the rate of Rs. 4.29 lakhs per day fixed at the time of approval of the programme of Channel 8, was subsequently reduced to Rs. 2.78 lakhs and the date of announcement of the telecast was 12.4.2000 and not 12.2.2000. Then again although under the standard proforma of the agreement a producer is required to furnish a bank guarantee to DD for an amount equal to double the sponsorship fee mentioned under clause 11(VI) of the agreement, as it will appear from the affidavit of the said Channel 8 and the affidavit-in-reply of the petitioners that a bank guarantee was furnished on 15.10.1999 by Channel 8, that is even before its proposal for the serial was submitted or approved. In its affidavit filed before us in opposition to the stay application it is now being claimed by Channel 8 that it has a continuing bank guarantee with Doordarshan although no such provision has been made under the agreement. 279. It also appears from the pleadings of the parties that although the Corporation has refused to consider telecasting of serial by other producers on the ground that because of long queue of serials as a matter of policy for the period of 2 years the Corporation will not consider any proposal for telecasting of serials, exception has been made in case of the added respondent, Channel 8. 280. It will appear from annexure A to the supplementary affidavit affirmed by the appellants before the Trial Court in the case of M/s. Softline Multimedia that the Deputy Director (Programme) of Doordarshan, Calcutta informed M/s. Prerona in reply to their letter dated 7.4.1998 in regard to submission of proposal for telecast of daily soap entitled Nayaya on the DD-1 (Regional) channel under the sponsored category that in view of the fact a large number of proposals for daily soap as well as weekly programmes for being telecast under the sponsored category which have been considered by the Corporation are waiting for slotting, a policy decision has been taken for not accepting any fresh proposal from any outside producer for a minimum period of 2 years with effect from April, 1998. 281. By the said letter the said M/s. Prerona was advised to keep in touch with the Corporation so that they are able to submit their proposals as and when DD Calcutta starts accepting fresh proposals for sponsored programme from outside producers. 282. In their affidavit-in-opposition to the stay application before the Appeal Court the respondents after admitting the existence of such a policy decision claims that the same was modified which "would be apparent from the writ petition of Kalpana Ghosal". 283. After perusal of the said writ petition filed by Kalpana Ghosal being W.P. No. 1261 of 2000 it does not appear to this Court that the said writ petition can be treated as proof of change of the aforesaid policy. 284. The aforesaid writ petition was moved by said Smt. Kalpana Ghosal challenging an alleged arbitrary and discriminatory action of the respondent-Corporation in accepting serial of other persons after intimating her that because of the aforesaid policy decision not to accept any serial for over 2 years, the serial prepared by her could not be accepted. 285. The said writ petition is proof of the fact while on the ground of policy decision serial of same producers are being refused, even during the period of subsistence of such policy favour is being shown by the respondent-Corporation to Channel 8 by accepting their proposal for telecasting of serial. 286. 285. The said writ petition is proof of the fact while on the ground of policy decision serial of same producers are being refused, even during the period of subsistence of such policy favour is being shown by the respondent-Corporation to Channel 8 by accepting their proposal for telecasting of serial. 286. No document has been produced before this Court showing any decision of the Board of the Prasar Bharati Corporation or even any written decision of the Director of DD Calcutta for the Director General of Doordarshan modifying the aforesaid policy of not accepting any serial for a period of 2 years from April, 1998. 287. From the said facts as aforesaid it can be reasonably inferred that for the reason best known to the Corporation favour is being shown to the Channel 8 Corporation. It appears from the affidavit of the respondents and their written argument the decision in favour of Channel 8 was taken in Delhi. 288. It is also worthnoting in this connection that the impugned decision for change the time slot although has been made by the respondents primarily for the reason that added respondent Channel 8 will be paying more than the double the amount paid by the petitioners the respondents have not accepted the proposals made by the writ petitioners, before the Trial Court that if money is the criteria, they are ready to pay more than Channel 8. It has been submitted by the petitioners that if the money is the criteria, before shifting the time slot of the petitioners, the respondents could have asked the petitioners themselves to pay more as they received higher offer from Channel 8 which was never done. 289. It will not be out of place in this connection to mention that the writ petitioners in their affidavit-in-reply have annexed two letters, one written by the Hon'ble Union Railway Minister to the Hon'ble Union Minister for Information and Broadcasting (Annexure A to the Affidavit-in-reply) and the other written by the Hon'ble Minister of State for Communication to the Hon'ble Union Minister for Information and Broadcasting. 290. 290. It will appear from the letter of the Hon'ble Railway Minister that when forwarding the representation one of the producers she commented that it was evident that the authorities of DD were contemplating to take a decision for change of a time slot in favour of a big business house at the cost of eliminating at least 10 small producers. It will appear from the other letter written by the Hon'ble Minister of State for Communication that while forwarding a representation of one of the producers who was sought to be dislodged from the time slot because of the aforesaid decision of DD, he commented that it was shocking to learn that the proposed programme of Channel 8 has been accepted even before it was formally approved and the same was sought to be done for favouring one particular big producer house at the cost of serious prejudice to 10 small established producers of West Bengal. 291. Although copies of such letters were forwarded to the functionaries of the Prasar Bharati Corporation also, the Corporation in their affidavit before the Appeal Court did not deal with such letters at all and merely submitted at the time of hearing that comments of such Ministers are of no consequence. 292. In course of hearing of the two appeals after going through the various materials produced before this Court by the parties it also appears to us that in absence of any regulation, the DD is proceeding in a manner as if it is still a department of the Central Government under the Ministry of Information. 293. It appears that agreement with the parties in the standard proforma agreement is being entered into on behalf of the Corporation by the Director General of Doordarshan. Under the Prasar Bharati Act however the Director General of Doordarshan has no power to act on behalf of the Corporation. As it will appear from section 3(4) that the general superintendence, direction and management of the affairs of the Corporation as vested in the Prasar Bharati Board which may exercise of such powers and to do all such acts and things as may be exercised or done by the Corporation under the Act. As it will appear from section 3(4) that the general superintendence, direction and management of the affairs of the Corporation as vested in the Prasar Bharati Board which may exercise of such powers and to do all such acts and things as may be exercised or done by the Corporation under the Act. Under section 3(5) of the Act although the Director General (Doordarshan) is of the ex officio member of the said Board, but he has not been empowered under the Act to exercise the power and the functions of the Corporation. 294. Under section 3(6) of the Act, the Corporation is empowered to appoint such committee as may be necessary for the efficient performance or exercise and discharge of its functions and duties. 295. Under section 5 of the Act, the Executive Member of the Board is the Chief Executive of the Corporation and he shall subject to the control and supervision of the Board, exercise such powers and discharge such functions of the Board as it may be delegated to him. 296. The learned counsel for the respondents, however, produced a copy of the notification No. G-17011/2/96-FAS dated 27-2-1998 containing a copy of the resolution passed by the Prasar Bharati Board in its first meeting held on 10 and 11th December, 1997. It will appear from the said resolution at the said Board that it was resolved inter alia that all the financial powers which are vested in Prasar Bharati under the Prasar Bharati Act, 1990 shall be exercised by the Executive Member of the Chief Executive. 297. It was further resolved that both the Director General (All India Radio and Doordarshan) shall continue to exercise powers as delegated to them as Secretary to the Government of India in consultation with their respective internal financial Advisories and the said Director General and authorised other officers not below the level of DOG/C to exercise the financial and administrative powers as Head of the Department. 298. Firstly, as pointed out hereinbefore, the Act does not empower the Prasar Bharati Board to delegate its powers and functions to any officer or member of the Board excepting the Chief Executive of the Corporation under section 5 of the Act and as pointed out hereinbefore section 3(6) of the Act empowers the Corporation to appoint Committees for performance and exercise of and discharge of its functions, powers and duties. 299. 299. It is not understood therefore under what provisions of the Act the Board passed the resolution permitting the Director General of Doordarshan and All India Radio to continue to exercise powers as delegated to them as Secretary of the Government of India. Such powers was delegated to them as Secretary to the Government of India when Doordarshan was a department of the Central Government of the Ministry of Information and Broadcasting. 300. After coming into operation of the Prasar Bharati Act the DD and all its Kendras ceased to be department of the Central Government. The Prasar Bharati Corporation now is a statutory Board created by the said Act and the General Superintendence, direction and management of the affairs vested in the Prasar Bharati Board. Such direction of the Board in its resolution has the effect of delegating to the said Director General the powers and functions of the Board. But as pointed out hereinbefore there is no provision of delegation of its powers and functions to any officer other than executive member who is the Chief Executive of the Corporation. 301. It also appears to us even many forms are being used still now which were prepared when the Doordarshan was a department of the Government but which are no mere appropriate after creation of the Corporation under the Act. 302. It appears to us the very often the Corporation seems to be under the impression that it is still a department of the Central Government overlooking that it is now statutory body under an Act of Parliament and its powers and functions are circumscribed by the provisions of the Act. 303. It may be recorded however that the petitioners because of the reasons stated above have not contended that because of the same the agreement is void. 304. But we are constrained to make such comments, as going through all such materials brought to our notice, we are of the view that notwithstanding the fact that the Corporation is invested under the Act with the solemn public duty of broadcasting and telecasting as a public service for the purpose of informing educating and entertaining the members, in the performance of its aforesaid duties the Corporation is proceeding in a very casual manner without proper application to mind. 305. 305. We have made the above comments also with the hope that the Corporation shall take appropriate steps including framing a regulation for removal of all such deficiencies and defects. 306. It is also too late in the day to contend as it has been done by the learned counsel for the Corporation, that the petitioner having entered into the contract with their eyes open, cannot now turn around and complaint of the clause 1 reserving unfettered discretion in view of the various decisions of the Supreme Court including in the case of Central Inland Water Transport vs. Brojanath Ganguly, reported in Delhi Transport Corporation vs. DTC Majdoor Union. Admittedly, the petitioners had to sign "on a dotted line contract" in a standard proforma and it cannot be said that the petitioner have the equal bargaining power with that of the Corporation. In such view of the matter even after the entering into the agreement, it is open to the petitioners to complain of the said clause, reserving unfettered discretion for the Corporation not only because is unconscionable but also because the same is wholly unconstitutional and is against the entire Constitutional scheme and violative of Article 14 of the Constitution. 307. We also held that before such change of time slot as per the terms of the agreement itself the petitioners were entitled to two weeks' notice. 308. We are unable to agree with the Trial Court and the learned counsels appearing for the respondents that the provisions for giving two weeks' notice in the agreement will be sufficiently complied with if the same is flashed in the screen of Doordarshan. 309. As it will appear from clause A of the standard proforma of agreement that the provisions made therein relating to change in the scheduled time and of telecast is indeed vague and in consistent with each other. Firstly, it has been stated that the D.D. will have unfettered right to effect change in the scheduled time and day of the telecast (including change of channel) without notice. Immediately thereafter it is stated, "however, whenever a change in the scheduled/allotted time slot is made, it shall be announced by DD at the originally scheduled time slot of telecast. Firstly, it has been stated that the D.D. will have unfettered right to effect change in the scheduled time and day of the telecast (including change of channel) without notice. Immediately thereafter it is stated, "however, whenever a change in the scheduled/allotted time slot is made, it shall be announced by DD at the originally scheduled time slot of telecast. Thereafter it is again stated "while slotting the programme, DD will have the option to shift the programme to any other slot deemed fit by DD without assigning any reason with a notice of two weeks". 310. When thus in the said agreements apart from making a provisions to make an announcement by DD at the originally scheduled time slot of telecast whenever a change in the scheduled/allotted time slot is made, it is also provided that while slotting the programmes, DD will have the option to shift the programme with a notice of two weeks although without assigning any reason, such provision appears to us to be distinct and separate from the provision of making an announcement in the television at the originally scheduled time slot of telecast about change in the scheduled/allotted time. 311. If there is any vagueness in the said provision and there is inconsistencies between the various provisions obviously the interpretation, which will favour the petitioner who will be affected by the change, has to be given. 312. That apart, it appears to us the provisions for announcement at the originally scheduled time slot of telecast DD no itself about change in the scheduled/allotted time slot has been made for the benefit of the viewers, whereas subsequent provisions for giving two weeks notice while shifting the programme to any other slot has been made for the benefit of the existing producer who will be affected by such change to enable him to make proper arrangements in respect thereof. 313. Under such circumstances under the agreement such two weeks' notice has to be given to the producers in case of such change which has not been done in the instant case. 314. The decisions relied upon by the learned Counsel appearing for the Corporation of our High Courts in the case of Bholanath Das vs. Raja Durga Prasad, reported in 12 CWN 724 and in the case of M.K. Gossine & Co. Put. 314. The decisions relied upon by the learned Counsel appearing for the Corporation of our High Courts in the case of Bholanath Das vs. Raja Durga Prasad, reported in 12 CWN 724 and in the case of M.K. Gossine & Co. Put. Ltd. vs. Dytrone (I) Ltd., reported in 69 Company Cases 757, have no manner of application in the instant case. 315. From the affidavit-in-opposition of the respondent also it will appear that they themselves have admitted that the shifting of the programme to any of the slots can be made without assigning any reason with a notice of two weeks. It was never pleaded in the affidavit that such notice of two weeks means that for two weeks such change of time slot will be announced on the Doordarshan screen. 316. It is interesting to note even respondent No.8, namely, Channel 8 in whose favour such shifting has been made in its affidavit has admitted the two weeks' notice to the affected producers is required to be given. 317. We are also unable to accept the contention of the learned counsel for the respondents that in absence of the specific pleadings relating to violation of Articles 14 and 19(1)(a) of the Constitution the Court should not go into such question, not being called upon to do so in the instant case. 318. While it is true that in absence of proper pleadings the Court may not enter into a particular question, in our view, the respondents are estopped from taking such stand at this stage of the proceedings. 319. It appears to us that in the affidavit-in-opposition to the writ petition such a stand was never taken. From the impugned judgment and order also it does not appear that such a stand was taken at before the trial Court even at the time of hearing. On the contrary, it appears to this Court that at the Trial Court the respondents were fully aware as to the specific contention raised by the writ petitioners inter alia as to the violation of Articles 14 and 19 of the Constitution, but no objection was taken as to the absence of proper pleadings for which the Trial Court also examined such question raised by the petitioners although ultimately held against the petitioners on merits. The respondents therefore were never caught by surprise; if the respondents would have taken such objection before the Trial Court, the petitioners might have an opportunity at least to pray for amendment of the pleadings. 320. That apart, it appears to us that although no specific pleadings has been made, as to how, the right of the petitioners' guaranteed under Articles 14 and 19(1)(a) of the Constitution have been violated, there is specific pleading in the writ petitions as to the arbitrary and unreasonable and irrational action by the respondents and there are sufficient materials and the pleadings on record wherefrom it can be ascertained by the Court whether there has been any violation of Articles 14 and 19(1)(a) of the Constitution. 321. The submissions of the learned counsels for the Corporation that no interference should be made with the impugned decision under Article 226 in view of the existence of alternative remedy by way of arbitration is also not tenable. 322. It has been submitted on behalf of the Corporation that clause 23 of the standard proforma of the agreement, which provides inter alia in the event of any dispute or difference between the parties thereto such dispute or difference shall be resolved by mutual consultation and if such resolution is not possible then the same shall be referred to the Chief Executive of Prasar Bharati whose decision shall be final, is an arbitration clause and therefore if the petitioner was aggrieved by the decision in question they should have gone for arbitration under the aforesaid provision of the agreement. 323. It has been submitted by the learned counsel appearing for the appellants, on the other hand, that a reading of the said clause in the agreement will indicate that the same is not an arbitration clause and even assuming the same is, question of reference to the Chief Executive of Prasar Bharati would not arise as according to the respondents themselves be approved the action of the respondents in the matter of change of such time slot in favour of Channel 8. 324. 324. While normally the Court will not interfere unless alternative remedy is exhausted, it is also well settled that existence of alternative remedy is not an absolute bar but more of public policy and the Writ Court may certainly interfere notwithstanding the existence of alternative remedy when there is violation of natural justice, there is lack of jurisdiction or in any other fit and proper case. 325. In the instant case, the entire challenge of the petitioner was that the impugned decision was wholly arbitrary and affecting their Fundamental Right under Article 14 and Article 19(1)(a) of the Constitution and is against the Constitutional scheme. 326. Such points cannot be decided by an Arbitrator. 327. It also does not appear to us that the clause in question can really be said to be an arbitration clause. It is not even clearly stated in the said clause that the matter shall be referred to the Chief Executive of Prasar Bharati for arbitration. 328. We also find substance in the submission of the learned counsel for the appellants that when the Corporation claims that their decision has been approved by the Executive Officer, it will really be futile for the petitioners to refer the dispute for his decision, obviously he having already made up his mind. 329. It is pertinent to note in this connection that in the affidavit the respondents have not taken any stand that the aforesaid clause of the agreement is an arbitration clause and therefore the matter should have referred to the arbitration of the Executive Officer. 330. Before concluding, we may now summarise our views as to the nature of duties and functions of the Corporation and the limitation thereof. 331. The scheme of the Prasar Bharati Act, 1990 and its different provisions clearly indicate that the Corporation is the repository of a public trust and the Parliamentary mandate requires it to protect and promote a public purpose, namely, to enrich the content and quality of public life by facilitating the dissemination of information. 332. Apart from the limitation inherent in the very being of an authority, the nature of the entrustment requires the Corporation to act in consonance with the assigned purpose. 333. 332. Apart from the limitation inherent in the very being of an authority, the nature of the entrustment requires the Corporation to act in consonance with the assigned purpose. 333. A statutory Corporation requires enabling provision in the constituting Act to undertake diverse activities; such provisions very often include ancillary or incidental provisions with a view to enable the authority to achieve the primary purpose. 334. The function of an authority like the Prasar Bharati Corporation is the Constitutional requirement to act fairly, reasonably, and in non-arbitrary manner. The power of the Corporation is limited by the provisions of the Act. The Corporation being statutory body its powers are circumscribed in the Act itself and it cannot travel beyond the same. 335. The function of the Corporation is also related to the field of its operation under Article 19 of the Constitution, as all citizens have the right to the freedom of speech and expression subject to the provision of any law imposing reasonable restrictions. The Corporation is nothing but a machinery established by the State after the judgment of the Supreme Court in the Cricket Association of Bengal case (supra) to provide a convenient mode and medium for the fuller enjoyment of the aforesaid guaranteed right; its power to enter into an commercial contract or accept any commercial advertisement really cannot alter or affect its basic character or Constitutional obligation. 336. The Corporation therefore has to function under four limitations, namely, limitation arising out of the statutory entrustments, limitation inherent in the being of the Corporation as an authority, limitation imposed by Article 14 of the Constitution and the limitation emanating from the field of its operation governed by Article 19(1)(a) of the Constitution. 337. Conferment of power however is one thing and the legalities and the proprieties of its exercise is an altogether different thing; the two aspect often cannot be equated as quite often the power contained for one purpose is sought to be exercised for a different purpose, as it has been done in the instant case. 337. Conferment of power however is one thing and the legalities and the proprieties of its exercise is an altogether different thing; the two aspect often cannot be equated as quite often the power contained for one purpose is sought to be exercised for a different purpose, as it has been done in the instant case. Instead of taking the decision for the purpose of functioning as public service broadcasting for informing, educating and entertaining the public, the impugned decision has been taken for the purposes extraneous to the purposes assigned to the Corporation under the Act, and that too in violation of the limitation imposed upon it by Article 14 and the limitations emanating from the field of its operations governed by Article 19(1)(a) of the Constitution. 338. In the result both the appeals succeed. The impugned judgment and order of the trial court dismissing the writ petitioners are hereby set aside. 339. Both the writ petitions namely, W.P.No. 1438 of 2000 [M/s. Softline Multimedia & Anr. vs. Prasar Bharati (Broadcasting Corporation of India & Ors.)] and W. P. No. 1441 of 2000 [M/s. H.P.C. Production & Ors. vs. Prasar Bharati (Broadcasting Corporation of India) & Ors.] are hereby allowed. 340. The impugned decision of the respondents being Annexure 'E' to the writ petition dated 9th February, 2000 changing the time slot of the programme of each of the petitioners from 5.30 p.m. slot to 4 p.m. slot of the same day are hereby quashed. 341. The clause-1 of the standard proforma of agreement used by the respondents while entering into an agreement with the producers for broadcasting their programmes reserving unfettered discretion for changing their programmes is hereby quashed. 342. Let a writ in the nature of Certiorari be issued accordingly. 343. Learned Counsel appearing on behalf of the Prasar Bharati Broadcasting Corporation as also the respondent Nos. 2 and 3 prays for stay of operation of the order so far as the same clause reserving unfettered discretion in the standard proforma of the agreement. Such prayer is considered and refused. 344. Xerox certified copy, if applied for, shall be made available to the parties as expeditiously as possible. 345. All parties are to act on a signed copy of the minutes of the operative portion of this judgment. G. C. De, J.: I agree. Both the appeals succeeded.