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TMI Blog2004 (3) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 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' and 'turn over' also made in the said notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports 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 commercial values such as Chennai, Kolkatta, Delhi are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 promised an egalitarian society and the Contract Labour (Regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion 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 of justice, equity and good conscience, the law Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduled 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 inequalities in income, there is no room for equality. Either equality before law or equality in interest. 8. Mr. Vijay Narayanan, learned counsel appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 public accountability in all Governmental enterprises. But, the present question is one of the extent and scope of judicial review over such matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings 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 extent such a 'reasonable man' is Court's creation, is in a manner of saying, a mere transferred epithet. Lord Redcliffe observed (All ER p. 160): By this time, it might seem that the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. 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 party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 course, if done on a policy, should be on some rational and reasonable grounds. In Erusian Equipment and Chemicals Limited v. State of West Bengal, this Court observed as under (SCC p. 75, para 17) : 'When the Government is trading with the public, the democratic form of Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents 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 for the respondents 1 and 2 by stating that Ministry of Civil Aviation advised the respondents 1 and 2 that grouping of airports to be considered in such a manner so that the bids for smaller airports are not capable of bringing quality advertisements as they do not possess requisite ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Contracts is expressly vested in the State or its instrumentalities. No citizen has a fundamental right to insist that Government must enter into Contract with him. Similarly, the words 'meterial resources' used in Article 39(b) are wide enough to cover not only the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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