Page 199 - ELT_15th July 2020_Vol 373_Part 2

2020 ] A.D. ENTERPRISE v. UNION OF INDIA 181

16. Mr. Bharati also cites the decision of a Learned Single Judge of the
Karnataka High Court in Om Traders v. Union of India, but to what purpose
we are unable to discern. The decision seems very much against him. There,
the Learned Single Judge had before him a group of petitions challenging
the policy. Both Ayurveda Sewashram Kalyan Samiti and Sri Adinath
Traders were cited. The petitioners in the Karnataka High Court alleged
that the authorities had no jurisdiction to issue a notification limiting quan-
tities or prescribing conditions, including registration. The learned single
Judge dismissed the writ petitions.
17. We do so as well. The writ petition is entirely without merit. It is dis-
missed. The Civil Application is disposed of accordingly. No costs.”
15. Thus, the Bombay High Court took the view that there is a power to
regulate and a power to impose quantitative restrictions, and in the absence of
challenge to the exercise of such power, the guidelines in the form of policy can-
not be declared as ultra vires the provisions of the Constitution of India. The
Bombay High [Court] took the view that the guidelines are a step towards im-
plementing a policy that had been in place past couple of years but, was in fur-
therance of a policy to promote the larger public interest.
16. After the decision of the Bombay High Court referred to above, the
policy came to be amended with effect from 13th September, 2019. We have al-
ready given a fair idea as regards the fine points of distinction between the old
policy and the new policy. There has been a remarkable shift in the new policy,
however, what is hurting the writ-applicant is the policy of ‘first-come-first-
serve’. This, according to the writ-applicant, is violative of Article 14 of the Con-
stitution of India. Mr. Dave seeks to fortify this submission by placing reliance on
the decision of the Supreme Court in the case of Centre for Public Interest Litigation
(supra). The relevant observations are as under :
“There is a fundamental flaw in the first-come-first-served policy inasmuch
as it involves an element of pure chance or accident. In matters involving
award of contracts or grant of licence or permission to use public property,
the invocation of first-come-first-served policy has inherently dangerous
implications. Any person who has access to the power corridor at the high-
est or the lowest level may be able to obtain information from the Govern-
ment files or the files of the agency/instrumentality of the State that a par-
ticular public property or asset is likely to be disposed of or a contract is
likely to be awarded or a licence or permission is likely to be given, he
would immediately make an application and would become entitled to
stand first in the queue at the cost of all others who may have a better
claim. This Court has repeatedly held that wherever a contract is to be
awarded or a licence is to be given, the public authority must adopt a
transparent and fair method for making selections so that all eligible per-
sons get a fair opportunity of competition. To put it differently, the State
and its agencies/instrumentalities must always adopt a rational method for
disposal of public property and no attempt should be made to scuttle the
claim of worthy applicants. When it comes to alienation of scarce natural
resources like spectrum etc., it is the burden of the State to ensure that a
non-discriminatory method is adopted for distribution and alienation,
which would necessarily result in protection of national/public interest. In
our view, a duly publicised auction conducted fairly and impartially is per-
haps the best method for discharging this burden and the methods like

EXCISE LAW TIMES  15th July 2020  199