ZEE TELEFILMS LIMITED Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE petitioners herein challenge Annexure-H order issued by the 1st respondent permitting the 5th Respondent to use the electrical poles of the 4th respondent Board for the purpose of laying their Cable TV Network. 'shorn of detailed argumentative pleadings, the brief facts of the case are as follows:

(2.) THE petitioners are established Cable TV Network operators in the cities of Bangalore and mysore since about one year. The 1st petitioner applied for permission to the 1st respondent for the use of electricity poles for the purpose of laying cable wires. In response to the said application, the 2nd respondent sent Annexure-B communication intimating that the 1st respondent has constituted a Committee to examine the request for the use of the electricity poles of the 4th respondent and that the said Committee would examine the representation of the petitioner and others. It called upon the petitioners to furnish the information noted therein. On 21-9-1995, the petitioner submitted its comprehensive bid, Annexure-C. By another communication, Annexure-D dated 23-9-1995, the petitioner offered Rs. 252/- per year per pole for exclusive user and Rs. 108/-per year per pole for non-exclusive user. Again a letter annexure-E dated 23-9-1995 from the 2nd respondent was received on 5-10-1995 by the petitioner calling upon them to indicate the rate in the event of non-exclusive user of the poles. This conduct of the 2nd respondent is clearly mala fide, as the said letter requested the petitioner to submit the reply by 27-9-1995, whereas the said letter itself was posted on 28-9-1995. As the required information had already been furnished by them, the petitioner did not submit any further reply. Thereafter, the petitioner was expecting an intimation intimating the date of opening the tender and hoped that the State would follow a fair procedure for consideration of different competitive bids. While so, they were shocked to learn from a newspapers that the 5th respondent has been selected to set up Cable TV Network for Karnataka. On coming to know of the same, the petitioner faxed a representation to the Chief Minister of Karnataka on 7-12-1995 reproducing their offer and sought to review the decision to confer the largesse to the 5th respondent. Subsequently, the petitioner received the order dated 6-12-1995 which is annexure-H whereby the 2nd respondent has in an arbitrary and mala fide manner selected the 5th respondent for the grant of exclusive permission for the use of electricity poles for its cable network. The arbitrary and mala fide nature of the order is evinced from the circumstances that the order states that the 5th respondent shall provide two satellite channels to the Government and the K. E. B. free of cost. This cannot be done without prior permission of the Central government and besides, the 5th respondent has no facility to provide the same as well. The 5th respondent has no ability, reputation or standing for establishing a cable network. Besides, the state Government had not floated any tender for establishing an 'information Superhighway' in the State. The grant of licence in this behalf is the exclusive privilege of the Central Government under the Telegraph Act. The petitioner was never asked to give its offer to establish 'information Superhighway'. All that was sought for was the use of poles for laying the cable network. Therefore, the establishment of 'information Superhighway' is absolutely unconnected and irrelevant for the request of the grant of permission to establish the Superhighway and no tender had been floated in this behalf. The petitioner has offered Rs. 252/- and Rs. 108/ respectively for exclusive and non-exclusive user of the poles. The State Government has granted the permission to the 5th respondent for far lower rate. Besides, the Government while granting permission has abridged the petitioner's right relating to exercise of freedom of speech in the guise of power under Article 19 (2) of the Constitution. The State is bound to provide all infrastructure to all to enable them to exercise a meaningful exercise of the right of freedom. The only right of respondent Nos. 1 to 4 in this behalf is to evaluate and assess different competitive tenders received. No notice was given to the petitioner inviting tenders for establishing 'information Superhighway' nor were they called for any negotiation in this behalf before granting the largesse to the 5th respondent. The 5th respondent is an influential industrial house able to obtain various favours from the bureaucratic and political circles. The 1st respondent had not followed fair and legal procedures and there is no need for respondents Nos. 1 and 4 to consider any secret offer by the 5th respondent. Had the offer for 'information Superhighway' been made known to the petitioner, they would have also submitted their offer. In any event, the state Government cannot grant permission for such sophisticated system arbitrarily. By their conduct, respondents Nos. 1 and 4 have created a monopoly in favour of the 5th respondent which is prejudicial to the fundamental right of freedom of expression guaranteed under Article 19 (1) (a) of the Constitution of India. The entire process of administrative decision is vitiated by mala fides; it has taken into account irrelevant consideration while excluding relevant consideration. Annexure-H is, therefore, liable to be quashed.

(3.) ALL the respondents have filed separate and detailed statement of objections. The 1st respondent contended as hereunder: