9911796707
TMI Blog2004 (3) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... of indoor and outdoor advertisements hitherto. The third respondent herein is a licencee for Trivandrum, Bangalore and Hyderabad. The first respondent has issued a notification in newspapers on 27.11.2003 inviting Tenders for indoor and outdoor advertisements. In the said notification, they have divided all the airports into four groups. In the said notification, it is provided that minimum of three years experience in advertisement and display business at Transportation centres and having a minimum annual turnover of ₹ 25 crores from such advertisement business. The said notification was cancelled by an intimation dated 26.12.2003 published in The Hindu' daily. Another notification dated 30.01.2004 was issued by the first respondent, which was also published in newspaper. In the said notification, it is prescribed that persons having minimum of three years experience in advertisement and display business at Airports, Seaports, Railways as a whole, bus terminals, bus shelters and public places and having a minimum four months prescribed Minimum Reserved Licence Fee, hereinafter referred to as "MRLF" are eligible. The explanation to the words 'experience' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advisory board also recommended to the Board of Airports Authority of India for modification of the commercial manual. Airports Authority of India, in its 73rd Board meeting held on 07.02.2004 effected necessary modification in the commercial manual. On the basis of the amended commercial manual, fresh Tender was invited on 30.01.2004 clubbing of airports and widening the scope of experience and to include advertisement in public place also from persons having a minimum of 12 months of prescribed MRLF as a turnover. The Airports Authority of India is the highest policy making authority. As far as the respondents 1 and 2 are concerned, on commercial consideration and for maximum revenue realisation, they have grouped the airports and fixed MRLF as such the same cannot be questioned under Article 226 of the Constitution of India. 5. The case of the third respondent is that he is a leader in airport advertising and received various awards from the first respondent. As regards CBI enquiry, it is stated that the same will not entitle it from participating in the Tender. According to the third respondent, grouping is not done for the first time. During 1997, airports of different comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment offered to certain old contractors the option to purchase Kendu leaves for the year 1968 on terms mentioned therein. The reason suggested by the Government that these offers were made because the purchasers had carried out their obligations in the previous year to the satisfaction of the Government is not of any significance. From the affidavit filed by the State Government it appears that the price fetched at public auctions before and after January, 1968 were much higher than the prices at which Kendu leaves were offered to the old contractors...." In the above case, the Honourable Supreme Court held that the Government of Orissa invited Tenders for advance purchase only from the purchasers of Orissa Kendu leaves during the previous year, who had carried out the obligation to the satisfaction of the Government in performance of open competition. The Honourable Supreme Court held that action of the Government was violative of Articles 14 and 19 of the Constitution of India. (ii) Secretary, Haryana State Electricity Board v. Suresh, , in which in para Nos. 1, 3, 17 and 18, it was held thus : "1. The doctrine of equality as enshrined in the Constitution promi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terpretation of a beneficial piece of legislation, question of interpreting the same with a narrow pedantic approach would not be justified. On the contrary, the widest possible meaning and amplitude ought to be offered to the expressions used as otherwise the entire legislation would lose its efficacy and Contract labour would be left at the mercy of the intermediary. 18. As noticed above the draconian concept of law is no longer available for the purpose of interpreting a social and beneficial piece of legislation specially on the wake of the new millennium. The democratic polity ought to survive with full vigour: socialist status as enshrined in the Constitution ought to be given its full play and it is in this perspective the question arises-is it permissible in the new millennium to decry the cry of the labour force desirous of absorption after working for more than 240 days in an establishment and having their workings supervised and administered by an agency within the meaning of Article 12 of the Constitution-the answer cannot possibly be in the affirmative the law Courts exist for the society and in the event law Courts feel the requirement in accordance with principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th special care the educational and economic interests of the weaker sections of the people, including in particular the scheduled castes and scheduled tribes and to protect them from social injustice and all forms of exploitation. Indeed, in a society where equality of status and opportunity do not obtain and where there are glaring inequalities in incomes, there is no room for equality, either equality before law or equality in other respects." In this case, the Honourable Supreme Court held that Articles 14 and 18 are to be understood in the light of Articles contained in Part IV of the Constitution (Per. B.P. Jeevan Reddy, J.) for himself and on behalf of N.H. Kania, C.J., M.L. Venkatachaliah, J, A.M. Ahmadi, J.). Article 14 enjoins upon the state not to deny to any person "equality before the law" or "the equal protection of the laws", within the territory of India. The concept of expression equality before law is illustrated not only by Articles. 15 to 18, but also by the several Articles in Part IV, in particular Articles 38, 39-A, 41 and 46. In a society where equality of status and opportunities do not obtain and where there are glaring inequalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se maximum revenue for the group as a whole by including the smaller airports. If the person having lesser turnover are allowed to participate in the Tender, interest of the Airport will be highly prejudiced. It is also canvassed by the learned counsel that fixation of conditions and eligibility criteria are well within the realm of the authorities and it cannot be questioned by the petitioner under Article 226 of the Constitution of India. The learned counsel also denied that the impugned notification is violative of Articles 14, 19(l)(g) and 39(b) of the Constitution in any manner and prayed for dismissal of the writ petition. 9. Mr. Vijay Narayanan, learned counsel appearing for the respondents 1 and 2 relied on the following decisions : (i) G.B. Mahajan v. Jalgaon Municipal Council, , wherein in Para Nos. 22, 26, 38, 39, 40, 45 and 46, it was held thus : "22. The criticism of the project being 'unconventional' does not add to or advance the legal contention any further. The question is not whether it is unconventional by the standard of the extant practices, but whether there was something in the law rendering it impermissible. There is, no doubt, a degree of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich pass from one branch of law to another-as did the expressions 'void', and `voidable' from private law areas to public law situations-carry over with them meanings that may be inapposite in the changed context. Some such thing has happened to the words "reasonable", "reasonableness" etc. In Tiller v. Atlantic Coast Line Rail Road Company, Justice Frankfurter said : "A phrase begins life as a literary expression; its felicity leads to its lazy repetition ; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas." 39. Different contexts in which the operation of 'reasonableness' as test of validity operates must be kept distinguished. For instance as the arguments in the present case invoke, the administrative law test of 'reasonableness' as the touchstone of validity of the impugned resolutions is different from the test of the 'reasonable man' familiar to the law of torts, whom English law figuratively identifies as the 'man on the Clapham omnibus'. In the latter case the standards of the 'reasonable man', to the exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expectation pointed out that it must be founded on sanction of law. Any claim based on legitimate expectation, without anything more cannot confer a right. The reasonableness on restrictions must be determind from stand point of general public interest. It was also held that the scope of judicial review in the matter relating to policy decision of the Government when it was taken in purported exercise of statutory powers in public interest, acting reasonably and in good faith-held not to be interfered with. (ii) Air India Limited v. Cochin International Airport Limited, , wherein in para 7, it was held thus : "7. The law relating to award of a Contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 488, Fertilizer Corporation Kamgar Union (Regd.) v. Union of India, , CCE v. Dunlop India Ltd., , Tata Cellular v. Union of India, , Ramniklal N. Bhutta v. State of Maharashtra, and Raunaq International Limited v. I.V.R. Construction Limited, . The award of a Contract, whether it is by a private pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pectation is irrational or perverse or one which is no reasonable person could have made. A claim based on merely legitimate expectation without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time; present, past and future. How significant is the statement that today is tomorrow's yesterday. The present is as we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law." In this case, it is held by the Apex Court that a mere legitimate expectation without anything more cannot ipso facto give a right. For legal purposes, expectation is not same anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law. (iv) Tata Cellular v. Union of India, , wherein in paras 93 and 94, it was held thus : "93. In Union of India v. Hindustan Development Corporation, , this Court held thus (SCC p. 515, para 9); "...the Government had the right to either accept or reject the lowest offer but that of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... successfully competing in the open Tender bids. As far as CBI enquiry is concerned, the third respondent is extending his full cooperation and in any event it will not debar the third respondent from participating in the Tender. The alleged collusion by the third respondent with the respondents 1 and 2 is baseless and the learned counsel termed the said allegation as mischevious. It is also denied by the learned counsel that the petitioner's right has not been infringed or violated in any manner by issuance of the Tender notification and prayed for dismissal of the writ petition. 11. Mr. G. Rajagopalan, learned senior counsel appearing for the petitioner advanced arguments to the effect that grouping various Airports into group I to IV without reference to the commercial potential and other aspects is unconventional, arbitrary, violative of Article 14 of the Constitution. In Support of the said argument, the learned senior counsel pointed out that minimum reserve price for each Airport in a group substantially varies and, therefore, grouping different Airports to a single group is untenable. The above said contention was contraverted by Mr. Vijay Narayanan, learned counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule of law accepted by the Constitution under Article 19(1)(g) of the Constitution. Under Article 19(l)(g) of the Constitution a citizen shall have the right to practice any profession, carry on any occupation, trade or business. Article 39(b) contemplates that State shall, in particular, direct it's policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good. The words 'distributed' used in Article 39(b) may be broadly construed so that the Court may give full and comprehensive effect to the Statutory intent of Article 39. It includes distribution of goods or services throughout a community. The words apportionment, allotment, allocation, classification clearly falls within its scope. Article 39(b) and (c) have to be integrated with the provisions of Part III and have to be read together to achieve the objective of a walfare State and an egalitarian social order. Article 19(6) provides that nothing in Article 19(l)(g) shall prevent the State from carrying on business, trade etc., whether to the exclusion complete or partial of citizens or otherwise. The power to enter into Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. It can fix its own terms of invitation to the Tender but the State, its Corporation and instrumentalities are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though the decision is not amenable to judicial review, the Courts can examine the decision making process and interfere, if it is found vitiated by mala fides, unreasonableness and arbitrariness. It is also the duty of the Court to keep the larger public interest in mind in order to decide whether it's intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest required interference, the Court should interfere. [Followed Air India Limited v. Cochin International Airport Limited (supra)]. 18. The concept of equal treatment in terms of Article 14 of the Constitution of India applies also to matters of Governmental policy or any action of the Government relating to contractual matters. If the contractual matters fail to satisfy the test of reasonableness, it would be unconstitutional. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the hear ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
