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2019 Supreme(Del) 1256
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIBHU BAKHRU, J.
Ujjwal Jain and Others – Appellants
Versus
Union of India and Others – Respondents
Writ Petition (Civil) No. 5377 of 2016, Civil Miscellaneous Nos. 22424, 24097, 25986, 41287 of 2016, 21958 of 2017
Decided On : 14-02-2019
Advocate Appeared:
Pradeep Dhingra, Mohit Nandwani, Nishant Kumar, Hitendra, Praveen Kumar, Bharathi Raju, Rajeev Sharma.
Policies within the discretion of the organization are not subject to detailed judicial review unless they are found to be arbitrary, unreasonable, or in violation of the Constitution.
Headnote:
Slot Sale Policy - Challenge to Prasar Bharti's Slot Sale Policy - Guidelines for the SFC Scheme, Article 19(1)(g) of the Constitution of India - [47 of the Guidelines for the SFC Scheme, Article 19(1)(g) of the Constitution of India]
Fact of the Case:
The petitioners challenged Prasar Bharti's Slot Sale Policy, alleging it favored larger production houses and excluded smaller producers. They also sought evaluation of their proposals submitted under the SFC Scheme and claimed that the new policies were arbitrary and tailored to favor specific production houses.
Finding of the Court:
The court found that Prasar Bharti had the right to return proposals without processing, as per Clause 47 of the SFC Scheme guidelines. It held that the policies were within Prasar Bharti's discretion and not subject to detailed judicial review. The court dismissed the petition, stating that the policies did not violate the petitioners' fundamental rights and were not tailored to favor specific production houses.
Issues: Challenge to Slot Sale Policy, Evaluation of Proposals under SFC Scheme, Allegations of Favoritism and Bias
Ratio Decidendi: Prasar Bharti had the discretion to return proposals without processing, and the policies were not subject to detailed judicial review. The court found no violation of fundamental rights or evidence of favoritism.
Final Decision: The petition was dismissed, and pending applications were disposed of. Prasar Bharti was directed to return fees collected from producers whose proposals were not being evaluated under the SFC Scheme.
VIBHU BAKHRU, J.
1. The petitioners have filed the present petition, inter-alia, challenging the "Slot Sale Policy" (hereafter "the said policy"), as announced by respondent no. 2 (Prasar Bharti), by a request for proposal (RFP) issued on 23.05.2016. Further, the petitioners pray that directions be issued to respondent no. 2 to not give effect to the said policy.
2. The petitioners are producers of television content. The petitioners contend that the Prasar Bharti's decision to adopt the said policy is arbitrary and discriminatory qua the petitioners, inasmuch as, it is aimed at eliminating the competition in the market to favour larger production houses. The petitioners claim that the eligibility criteria as stipulated under the said policy, excludes all small production houses from participating and adversely affects their livelihood.
3. Prasar Bharti disputes the above. It contends that the said policy is neither arbitrary nor capricious and, therefore, not amenable to judicial review under Article 226 of the Constitution of India. The respondents submit that the eligibility criteria as set out under the said policy is to maintain and increase the quality of telecast content, and not to act against a producer, whether big or small.
Factual Background
4. The petitioners submit that respondent no. 3 (Doordarshan) has been following various policies for the commissioning and airing of programmes. Between 1980 and 2005, it worked through "Sponsored Programmes" whereby the producers would make a programme, pay respondent no. 3 a telecast fee and would recover their expenses by selling the Free Commercial Time (FCT) as allocated by respondent no. 3. Thereafter, in 2005, respondent no. 3 introduced the "Self-Financing Commissioning" (SFC) scheme, wherein respondent no. 3 would acquire programmes from the producers and market such programmes. Under the said policy, producers would be given the production cost after a period of 90 days. In 2013-2014, this policy was replaced by two schemes, the "Revenue Share Scheme" and the "Advertisement Funded Programme." Under the Revenue Share Scheme, producers would submit a proposal along with a pilot episode, for respondent no. 3's approval. Respondent no. 3 would then market the programme and share the revenue with the producer after deducting a pre-determined opportunity cost. Under the "Advertisement Funded Programme", the producer would submit a pilot episode along with a proposal. The producer was expected to meet his costs by marketing the allocated FCT.
5. On 11.11.2014, respondent no. 3 invited proposals under the SFC scheme for its prime time and mid time telecast slots, whereby the producer would produce the programme at his own risk, and if selected by respondent no. 3, the latter would market and telecast the programme. And, pay the producer after a period of 90 days. All rights stemming from the produced programme would vest with respondent no. 3. As per the said scheme, the producer was required to submit a pilot episode along with a demand draft of Rs. 25,000/- as processing fee. In terms of the said guidelines, respondent no. 3 would refund the processing fees if a programme was returned to its producer.
6. The petitioners submit that sometime in April 2015, respondent no. 3 indicated that the proposals received under the SFC scheme till 15.04.2015, would be processed between 28.04.2015 and 25.05.2015. Thereafter, the Evaluation Committee allegedly evaluated about 179 proposals, and approved 30 programmes.
7. On 17.11.2015, respondent no. 3 issued a letter proscribing its facilitation counter from accepting any SFC proposals with effect from 20.11.2015. The petitioners allege that between 15.04.2015 and 20.11.2015, around 154 proposals had already been received by respondent no. 3, and were pending evaluation. The petitioners' proposals under the SFC policy form a part of the said proposals as presented to respondent no. 3. According to the petitioners, each proposal costs
