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2010 DIGILAW 494 (ORI)

ORTEL COMMUNICATIONS LIMITED v. STATE OF ORISSA

2010-07-21

L.MOHAPATRA, S.K.MISHRA

body2010
JUDGMENT : L. Mohapatra, J. - The above two writ petitions have been filed challenging the workability of the Guidelines laid down in the notification dated 30.4.2009 issued by the Department of Energy, Government of Orissa in pursuance the judgment delivered by this Court in W.P.(C) No. 11762 of 2006, disposed of on 16.5.2008. 2. The petitioner in W.P.(C) No. 10059 of 2009 is a Multi Service Operator (MSO) whereas the petitioners in W.P.(C) No. 7745 of 2009 are Local Cable Operators (LCOs). 3. The facts giving rise to filing of the earlier writ petition and these two writ petitions are as follows: The petitioner (ORTEL) in W.P.(C) No. 10059 of 2009 started cable operation in the State of Orissa in the year 1995. The case of ORTEL is that the State Government in the year 1995 having failed to get a service provider for making provisions of entertainment in the State of Orissa, requested it to take on the assignment, the Nodal Agency being Orissa State Electronics Development Corporation (OSEDC). An investment agreement was executed between OSEDC and ORTEL on 17.6.1995, which is the subject matter of Annexure-4 to W.P.(C) No. 10059 of 2009. The case of ORTEL was recommended to the Orissa State Electricity Board (OSEB) for permission to allow use of its electrical poles on settlement of commercial terms and the said recommendation was approved in the 348th Board meeting of the Board held on 28.6.1995. Subsequently an agreement was executed between the OSEB and ORTEL on 6.7.1995 for utilizing the electrical poles to allow the cable network throughout the State on certain terms and conditions. ORTEL. invested huge amount of money in laying cables and made other expenditures for operating the cable network at different places in the State of Orissa and was continuing as the sole Multi Service Operator till Variety Entertainment Private Limited O.P. No. 2 in W.P.(C) No. 10059 of 2009 filed a writ petition before this Court vide W.P.(C) No. 11762 of 2006 challenging clause 6 of the notification dated 11.10.2001 providing laying of one cable in one pole. The said writ petition was disposed of on 16.5.2008 with the following observation and direction : Taking guidance from the judgment of the Hon'ble Supreme Court as referred hereinabove, it is clear that on a reading of the impugned notifications under Annexures 5 and 6 as well as its amendment thereafter by the State, it is clear that, no standard or norm for deciding the manner/ process to award the right to use such electrical poles has been prescribed. This is a clear case where the State has failed to provide the requisite standard or norm for selecting the beneficiaries. Therefore, since it is an obligation of the State to provide a "level playing field" and such "level playing field" can only be provided by embodying the principles of non-discrimination in the process of selection. The manner in which the State Government and opposite parties 2 and 3 have acted in entering into the contract with opposite party no. 4 clearly reveal that all such contracts entered into after the impugned notification were promulgated, do not meet these standard requirements of law. Even otherwise, all such contracts that have been entered into after the impugned notification were issued ought to have been made first by laying down the specific standards and norms and, thereafter, by bringing to the notice of the public at large by inviting applications and thereafter, by taking on its decision in a fair, just and transparent manner. In the present case, it is seen that the agreement that have entered into by opposite parties 4 and 5, after the date of promulgation of the impugned notification, do not satisfy the requirements of law. Accordingly, while upholding the notifications impugned herein as valid in law, we declare that the process adopted by the State/O.Ps. 2 and 3 in granting such benefits to opposite parties 4 and 5, are not consistent with the requirements of law. Accordingly, all agreements entered into by opposite parties 2 and 3 notifications issued, are held to be invalid and inoperative in law. Further directions are also issued to the State to issue necessary guidelines setting the norms and standards for selecting a cable operator who will be awarded the contract to operate their cable networks through the electrical poles of opposite parties 2 and 3. Further directions are also issued to the State to issue necessary guidelines setting the norms and standards for selecting a cable operator who will be awarded the contract to operate their cable networks through the electrical poles of opposite parties 2 and 3. Therefore, the opposite parties 2 and 3 are required to make a public advertisement inviting applications from intending cable operators and as a consequence thereof, it may award such contract on such terms and conditions as the State and the opposite parties 2 and 3 may deem just and proper. It is only in this manner that the doctrine of "level playing field" which is embodied in Article 19(1)(g) of the Constitution of India can be ensured. It must never be forgotten that the basic important element of the "rule of law", is "legal certainty" and it is well settled that Article-14 of the Constitution of India not only applies to Government policies but also extends to the contractual matters, which must also satisfy the test of "reasonableness". We further direct that the implementation of the aforesaid directions must be done within a period of six months from today. The entire procedure of fixation of norms and standards public advertisement and settlement of rights should be completed within a period of six months. In order to provide continuity service to the citizens/consumers the present arrangements as it exists today may continue till then." In pursuance of the said judgment, a decision was taken to allow three MSOs to operate the cable network and consequently use the electrical poles. As a consequence of such decision, the impugned notification dated 30.4.2009 was issued laying down the guidelines for selection of three MSOs and also the manner in which the three selected MSOs can take help of the LCOs in operating their respective cable network. 4. Shri R.K. Rath, the learned Senior Counsel appearing for' ORTEL drew attention of the Court to some parts of the guidelines in order to substantiate his submission that the said guidelines are not workable and that the ORTEL being in the business of cable operation in the State of Orissa from the year 1995, some preference in the matter of selection of three MSOs should have been extended to it. The learned counsel appearing for the local cable operators in W.P.(C) No. 7745 of 2009 submitted that the guidelines formulated by the State in the impugned notification do not take care of the interest of the Local Cable Operators and they have been left at the mercy of three MSOs, who may be selected for operating the cable network. Shri Sanjit Mohanty, the learned Senior Counsel appearing for opposite party No. 2 in W.P.(C) No. 10059 of 2009 (Variety Entertainment Private Limited) submitted that the notification impugned in both the writ petitions is a policy decision taken by the State Government with regard to selection of three MSOs and the Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot interfere with the policy decision and therefore, there is no scope for this Court to sit in appeal over the policy decision taken by the State and interfere with the same, it was further contended by the learned counsel that the petitioner-ORTEL Communications Limited in W.P.(C) No. 10059 of 2009 may have a legitimate expectation that some preference may be extended to it having operated the cable network from 1995, but such legitimate expectation will not be a ground to interfere with a policy decision taken by the State and accordingly prayed for dismissal of both the writ petitions. 5. It was contended by Shri Sanjit Mohanty, the learned Senior Counsel appearing for Variety Entertainment Private Limited that in exercise of jurisdiction under Article 226 of the Constitution of India, this Court cannot sit in appeal over a policy decision taken by the State and interfere with the same. As stated earlier, the State Government had taken a decision in pursuance of the judgment of this Court referred to earlier that it shall permit three MSOs to utilize the electrical poles for the purpose of operating cable network. This a policy decision of the State Government which has not been challenged in the writ petition. As stated earlier, the State Government had taken a decision in pursuance of the judgment of this Court referred to earlier that it shall permit three MSOs to utilize the electrical poles for the purpose of operating cable network. This a policy decision of the State Government which has not been challenged in the writ petition. As is evident from the submission made by Shri R.K. Rath, the learned Senior Counsel appearing for the ORTEL Communications Limited, the challenge is with regard to unworkability of the guidelines prepared for selection of three MSOs and non-consideration of the case of ORTEL for the purpose of giving a preference in the matter of selection of three MSOs, the said Company having operated the cable network in the State of Orissa for about fifteen years having invested near about 200 crores. In the case of Union of India and others Vs. Hindustan Development Corpn. and others the Court held that if it is a question of policy, even by way of change of old policy, the Courts cannot interfere with the decision. This decision was later on referred to by the Hon'ble Supreme Court in the case of Punjab Communications Ltd. Vs. Union of India and Others. In the case of Narmada Bachao Andolan Vs. Union of India and Others it was held that the Court in exercise of its jurisdiction will not transgress into the field of policy decision. In the case of Villianur Iyarkkai Padukappu Maiyam Vs. Union of India (UOI) and Others the Hon'ble Supreme Court held that it is neither within the domain of the Courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. The Court shall not interfere with a public policy merely because a public policy could be fairer or wiser. In the case of Delhi Science Forum and others Vs. Union of India and another policies adopted by the Parliament was under challenge. It was held that the Courts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the counter any such national policy should have been adopted or not. In the case of Delhi Science Forum and others Vs. Union of India and another policies adopted by the Parliament was under challenge. It was held that the Courts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the counter any such national policy should have been adopted or not. No direction can be given or is expected from the Courts unless while implementing such policies, there is violation or infringement of any of the constitutional or statutory provision. The Court further held that whether there is any legal or constitutional bar in adopting such policy, the Court can certainly examine the same. While examining Government contracts with reference to Article 14 of the Constitution of India in the case of Sterling Computers Limited and Others Vs. M and N Publications Limited and Others the Court held as follows: While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process". By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Court have inherent limitations on the scope of any such enquiry. But at the same time the Courts can certainly examine whether "decision making process" was reasonable rational, not arbitrary and violative of Art. 14 of the Constitution. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract. But, once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Art. 14 of the Constitution, the Court cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by Court amounts to encroachment on the exclusive right of the executive to take such decision. In the case of M/s. Ugar Sugar Works Ltd. Vs. In the case of M/s. Ugar Sugar Works Ltd. Vs. Delhi Administration and Others the Hon'ble Supreme Court held that where a policy of Government is not touched by mala fides and is not unfair, unreasonable or arbitrary, it will not be proper on the part of the Court to interfere with such a policy decision. A similar view has also been expressed by the Hon'ble Supreme Court in the case of Federation of Railway Officers Association and Others Vs. Union of India (UOI). In the case of Union of India (UOI) and Another Vs. International Trading Co. and Another the same view has been expressed. With reference to Article 14 of the Constitution of India, in the aforesaid judgment, the Hon'ble Supreme Court observed in the following manner: Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. While the discretion to change the policy in exercise of the executive power, when not trammeled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. The ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved, the nature of the right alleged to been infringed, the underlying purpose of the 'restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. On perusal of all the above decisions, it is clear that only when a policy decision is found to be arbitrary, unreasonable, irrational, perverse or not in public interest, the Court may examine the policy to the above extent. On no other ground the Court should sit in an appeal over a policy decision and interfere with the same. On perusal of all the above decisions, it is clear that only when a policy decision is found to be arbitrary, unreasonable, irrational, perverse or not in public interest, the Court may examine the policy to the above extent. On no other ground the Court should sit in an appeal over a policy decision and interfere with the same. Opposite party No. 2-Variety Entertainment Private Limited had come up before this Court in W.P.(C) No. 11762 of 2006 having failed in its endeavour to get an agreement executed with CESCO for use of electrical poles for the purpose of running a business in cable network. The Energy Department notification No. 18271 dated 11.10.2001 and notification No. 148 of the same Department dated 4.1.2002 stood on the way of Variety Entertainment Private Limited in getting such agreement executed. Clause 6 of the notification dated 10.11.2001 did not permit use of the electrical poles for more than one cable and the petitioner ORTEL Communication Limited having already executed agreement with erstwhile OSEB for use of electrical poles to lay down the cable, it was no more permissible in view of Clause 6 of the notification dated 11.10.2001 to allow any other cable operator to use the electrical poles. The Court examined the contentions of the parties therein and observed that the said notification dated 11.10.2001 has the effect of creating a monopoly by limiting the use of the electrical poles by one cable operator and accordingly set aside the said notification by declaring the same as unconstitutional for having not prescribed any procedure for selection and for not having provided a "level playing field". So far as this judgment is concerned, it was stated by the learned counsel for the parties that the matter had been carried to the Hon'ble Supreme Court but the SLP was dismissed. In view of the above, none of the counsel appearing for the parties objected to the policy decision of the State with regard to selection of three MSOs for the purpose of cable network by use of the electrical poles. 6. Shri R.K. Rath, the learned Senior Counsel appearing for the petitioner-ORTEL Communications Limited made two submissions in respect of the impugned guidelines. 6. Shri R.K. Rath, the learned Senior Counsel appearing for the petitioner-ORTEL Communications Limited made two submissions in respect of the impugned guidelines. The first submission made by the learned counsel is that the guidelines laid down in the said notification may ultimately found to be unworkable considering what has been laid down in paragraph-2 of Part-I of the said notification. The relevant paragraph referred to by the learned counsel appearing for the petitioner-ORTEL Communications Limited is quoted below: The Distribution Companies will short list MSOs after evaluation of the experience, net-worth, credit-worthiness etc. by assigning reasons. Thereafter, the price bid may be invited from amongst the short listed MSOs. The bidder offering highest bid shall be selected along with other bidders in total three in order of merit as per original financial bid subject to their agreement and acceptance of the highest bidding price. The two MSOs/ other than the highest bidder if agree and accept the highest bid for the entire area then they being selected will be allowed to operate along with highest bidder. With reference to the said paragraph, it was contended by Shri Rath, the learned Senior Counsel that after the bid, the highest bidder shall be selected with two others in order of merit as per original financial bid subject to their agreement and acceptance of the highest bidding price. The two other MSOs other than the highest bidder if agree and accept the highest bid for the entire area then they being selected will be allowed to operate along with highest bidder. There is no provision/guideline in the said paragraph to show what procedure is to be adopted in the event the second and third highest bidders do not agree and accept the highest bid. It was also contended by the learned counsel that there is no guideline to prohibit bids by MSOs, who actually do not intend to operate but quote such bid which shall be financially not feasible for any. other bidder to match. Learned counsel also submitted that the petitioner-ORTEL Communications Limited having invested huge amount of money in the business of cable network in the State of Orissa since 1995 and having vast experience in such business should have been given preference in the matter of selection of three MSOs. other bidder to match. Learned counsel also submitted that the petitioner-ORTEL Communications Limited having invested huge amount of money in the business of cable network in the State of Orissa since 1995 and having vast experience in such business should have been given preference in the matter of selection of three MSOs. So far as the first and second submission of the learned counsel are concerned, we find from paragraph-2 of Part-I of the impugned notification that the Distribution Companies will short list MSOs after evaluation of their experience, network, creditworthiness etc. by assigning reasons and thereafter invite price bids from the short listed MSOs. The bidder offering the highest bid shall be selected along with other bidders, in total three in order of merit as per original financial bid, subject to their agreement and acceptance of the highest bidding price. There is some substance in the contention of the learned counsel for the petitioner-ORTEL Communications Limited that in the event the second and third highest bidders do not agree and accept the highest bid, the procedure that is required to be adopted is not available in the guidelines. It is evident from the aforesaid paragraph-2 of Part-I of the notification that it is open for the second and third highest bidder to either accept the highest bid or go out of competition. In the event the second and third highest bidders do not accept the highest bid, the State shall have no other option except accepting the highest bid only and it will ultimately result in monopoly which is sought to be discouraged in view of the earlier judgment of this Court. Therefore, the guidelines in our view in the impugned notification should have also provided the procedure to be adopted in the event the second and third highest bidders refuse to accept the highest bid. In absence of such a provision in the guidelines, the intention behind issuing the notification of having three cable operators will be frustrated and may result in monopoly again. To the above extent, in our view, the guidelines are required to be reconsidered not being in public interest. 7. In absence of such a provision in the guidelines, the intention behind issuing the notification of having three cable operators will be frustrated and may result in monopoly again. To the above extent, in our view, the guidelines are required to be reconsidered not being in public interest. 7. So far as the second submission of the learned counsel for the petitioner-ORTEL Communications Limited is concerned, paragraph-3 of Part-1 of the impugned notification becomes relevant and the said paragraph is quoted below: The MSOs shall offer its bid towards lease rental of all electric poles of distribution licensee for the entire area. Initially, the payment of lease rental shall be made by MSOs for the period of three years in advance in one go. Thereafter, it shall be paid annually in advance. The MSO shall not sublease the right to any other person. Though it was contended by the learned counsel appearing for the State and Shri Sanjit Mohanty, the learned Senior Counsel appearing for Variety Entertainment Private Limited that the highest three bidders have to deposit rental for a period of three years advance in one go, we find from the said paragraph that it is not a pre-requisite for participating in the bid. There is no clear provision in the said paragraph to show that all the short listed bidders are required to deposit lease rental for a period of three years in advance before participating in the price bid. In absence of such a provision, it is possible that one MSO having no intention of operating the business in cable network may make a bid and ultimately if found to be the highest; bidder, withdraw from the bid. Therefore, in our view, the policy laid down should have also contained a provision clearly to the extent that before the MSOs put their financial bid, they should deposit the lease rental for a period of three years in advance and in the event, any such selected MSO withdraws from the bid, such amount in deposit shall be forfeited. 8. The third submission of Shri R.K. Rath, the learned Senior Counsel appearing for the petitioner is that the petitioner is operating the cable network in the State of Orissa since 1995 and has invested near about 200 crores in the meantime. 8. The third submission of Shri R.K. Rath, the learned Senior Counsel appearing for the petitioner is that the petitioner is operating the cable network in the State of Orissa since 1995 and has invested near about 200 crores in the meantime. Therefore, asking the petitioner at this stage to participate in the bid process and dismantle all the materials used for cable network in the event of failure on the part of the petitioner to be amongst the first three highest bidders would amount to unreasonableness and therefore, some preference should have been given to the petitioner in the matter of selection of the three MSOs. It was also contended by the learned counsel that the petitioner could be kept away from the bidding process and could be permitted to match the highest bid, so that there is no loss to the electricity distribution Companies. In the alternative the petitioner could be given a chance to negotiate and match the highest bid in the event it does not come within the first three highest bidders. In relation to this submission, Shri Sanjit Mohanty, the learned Senior Counsel appearing for Variety Entertainment Private Limited referred to some decisions of the Hon'ble Supreme Court to substantiate his submission that having operated the cable network for about fifteen years, the petitioner may have a legitimate expectation of having a preference in the matter of selection but on that ground, the Court cannot interfere with the policy decision. Reliance was placed by the learned counsel in the cases of Union of India and others Vs. Hindustan Development Corpn. and others, ; Punjab Communications Ltd. Vs. Union of India and Others, ; Union of India (UOI) and Another Vs. International Trading Co. and Another, and State of Arunachal Pradesh Vs. Nezone Law House, Assam. In all these decision, it was held that the doctrine of promissory estoppel and legitimate expectation cannot come in the way of public interest and public interest has to prevail over private interest. After the judgment was reserved in this case, a memo of citation has been filed by the petitioner referring to a decision of the Hon'ble Supreme Court in the case of Ravi Development Vs. Shree Krishna Prathisthan and Others. In the said reported decision, the petitioner Ravi Development had submitted a proposal to the Chief Executive Officer of MHADA for development of undeveloped land in certain areas. Shree Krishna Prathisthan and Others. In the said reported decision, the petitioner Ravi Development had submitted a proposal to the Chief Executive Officer of MHADA for development of undeveloped land in certain areas. A similar proposal was also submitted by Ravi Development to the Chief Minister of Government of Maharashtra who was also holing the portfolio of Housing. The proposal was sent to MHADA calling for a detailed report and the Chief Executive Officer of MHADA submitted a note regarding the proposal suggesting adoption of "Swiss Challenge Method" for Government approval. The said suggestion was accepted and it was recommended that proposal received could be advertised under "Swiss Challenge Method" on pilot basis. The matter was brought before the Bombay High Court when the contract was awarded to Ravi Development for developing Mira Road project and the Bombay High Court disapproved the "Swiss Challenge Method" and consequently allowed the writ application. The matter was thereafter brought to the Hon'ble Supreme Court by Ravi Development and in the said judgment the Hon'ble Supreme Court approved the "Swiss Challenge Method" adopted by the MAHDA and declined to interfere with the policy decision taken by the said authority in adopting the "Swiss Challenge Method". As is evident from paragraphs-6 and 9 of the said judgment, the "Swiss Challenge Method is followed in many countries. In an article written by M. Sivaraman, Founder, Centre for Legal Education and Applied Research, Chennai, under the heading "Swiss Challenge: New Vistas in Infrastructure Projects", the following has been written about what "Swiss Challenge Method" means: SWISS CHALLENGE The Swiss Challenge approach refers to suo-motu proposals being received by the government from the private participant. The private sector thus provides (a) all details regarding its technical, financial and managerial capabilities; (b) all details regarding technical, financial and commercial viability of the project/programme; and (c) all details regarding expectation of government support/concessions. The government may examine the proposal and if the proposal belongs to the declared policy of priorities, then it may invite competing counter proposals from others (in the spirit of 'Swiss Challenge' approach) giving adequate notice. In the event of a better proposal being received, the original proponent is given the opportunity to modify the original proposal. Finally the better of the two is awarded the project/programme for execution. In the event of a better proposal being received, the original proponent is given the opportunity to modify the original proposal. Finally the better of the two is awarded the project/programme for execution. A Swiss challenge is a form of public procurement in some (usually lesser developed) jurisdictions which requires a public authority (usually an agency of government) which has received an unsolicited bid for a public project (such as a port, road or railway) or services to be provided to government, to publish the bid and invite third parties to match or exceed it. It is an offer made by the original proponent to the government ensuring his process to be best by his initiative (as a result of his own innovative approach) or on the demand of the government to perform certain task. Some Swiss challenges also allow the entity which submitted the unsolicited bid itself then to match or better the best bid which comes out of the Swiss Challenge process. In our country, recent legislations such as Andhara Pradesh Infrastructure Development Enabling Act, 2001 and Bihar Infrastructure Development Enabling Act, 2006 point out that "Swiss challenge approach" is meant when a private sector participant (original project proponent) submits an unsolicited or suo-motu proposal and draft contract principles for undertaking a project, not already initiated by the government agency or the local authority and the government agency or the local authority then invited competitive counter proposals in such manner as may be prescribed by the government. The proposal and contract principles of the original project proponent would be made available to any interested applicants; however, proprietary information contained in the original proposal shall remain confidential and will not be disclosed. The applicants, then, will have an opportunity to better the original project proponent's proposal. If the government finds one of the competing counter proposals more attractive, then the original project proponent will be given the opportunity to match the competing counter proposal and win the project. In case the original project proponent is not able to match the more attractive and competing counter proposal, the project is awarded to the private sector participant, submitting the more attractive competing counter proposal. In case the original project proponent is not able to match the more attractive and competing counter proposal, the project is awarded to the private sector participant, submitting the more attractive competing counter proposal. The said legislations also define "unsolicited or suo-motu proposal" as a proposal in respect of a project not already initiated by the government or government agency or local authority and which proposal is submitted by any private sector participant to the government agency or local authority in respect of any infrastructure in the State supported by project specifications, technical, commercial and financial viability and prima facie evidence of the financial and technical ability of such private sector participant to undertake such project with full details of composition of the private sector participant and his financial and business background. Accordingly, under the Swiss challenge process, the contrasting feature from the conventional contracts of the public authorities lies in the fact that the initial proposal with all the related technical, financial and project specifications are offered by the private sector participant without requiring the public authority to expand its scare resources and time into the examination of the feasibility conceptualization and formulation of revenue models etc. with the result the said innovative process of unsolicited bidding has increasingly been resorted to by several state and central authorities in our country as well. While agreeing with the submissions of Shri Sanjit Mohanty, the learned Senior Counsel appearing for the Variety Entertainment Private Limited that the legitimate expectation cannot override public interest, we are also of the view that the "Swiss challenge method" is also another way of looking at the manner of selection of the MSOs and deserves consideration. 9. So far as W.P.(C) No. 7745 of 2009 is concerned, it was contended by Shri Milan Kanungo, the learned counsel appearing for the petitioners therein that before taking a policy decision in the impugned notification, the local cable operators were not heard and that their interest has not been taken care of in the said guidelines. It is not necessary to hear parties before taking a policy decision in view of the decisions rendered by the Hon'ble Supreme Court in cases of Bannari Amman Sugars Ltd. Vs. Commercial Tax Officer and Others, and BALCO Employees Union (Regd.) Vs. Union of India and Others. It is not necessary to hear parties before taking a policy decision in view of the decisions rendered by the Hon'ble Supreme Court in cases of Bannari Amman Sugars Ltd. Vs. Commercial Tax Officer and Others, and BALCO Employees Union (Regd.) Vs. Union of India and Others. So far as the second contention of the learned counsel for the petitioners therein that the LCOs have been left at the mercy of the MSOs is concerned, we find no substance in the said submission also. Part-II of the notification deals with the Local Cable Operators and it is specifically laid down that the Local Cable Operators will be selected by MSO who will be receiving the signal from MSO and distribute the same to the last mile subscribers at their premises in Residential/Commercial areas. The MSO will grant right of way to only one LCO in a particular area for laying Coaxial/ Optical Fibre Cables by using the electrical poles. It is, therefore, clear that the three MSOs that may be selected for the purpose of running the business of cable network have to take help of the LCOs and the only restriction is that the MSO will grant right of way only to one LCO in a particular area for laying Coaxial/Optical Fibre Cables by using the electrical poles. Therefore, the interest of the Local Cable Operators has been taken care of in the said guidelines. 10. In pursuance of the earlier judgment of this Court in W.P.(C) No. 11762 of 2006, a policy decision was taken by the State Government to allow three MSOs to use the electrical poles for the purpose of operating their respective cable network. This policy decision has not been challenged by any of the parties and therefore, the objection raised by the learned Senior Counsel Shri Sanjit Mohanty that the Courts have no jurisdiction to interfere with the policy decision of the Government need not be gone into. The challenge is in relation to the guidelines issued in pursuance of such policy decision and therefore, it cannot be said that the Court has no jurisdiction to suggest changes in the guidelines if ultimately the Court is satisfied that the guidelines laid down may become unworkable or that the said guidelines are unreasonable and may not be in public interest. 11. 11. We, therefore, for the reasons stated earlier, dispose of both the writ petitions with a direction to opposite party No. 1 to have a re-look into the guidelines in the light of the observations made in this judgment and bring about such modification in the guidelines so as to make it workable and reasonable. We also direct that adoption of the "Swiss Challenge Method" for the purpose of selection of three MSOs may also be considered since, we feel that even adopting the "Swiss Challenge Method", there shall be no loss of revenue to the electricity distribution Companies and no prejudice shall also be caused to any of the parties serious about operating a cable network in the State. S.K. MISHRA, J. 11. I agree.