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TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNALNEW DELHI
DATED 13TH MARCH, 2012
Petition No.376 (C) of 2011
Shri Hanuman Communications … Petitioner
Vs.
Sun 18 Media Services South Pvt. Ltd. … Respondent
Petition No.377 (C) of 2011
Shri Hanuman Communications … Petitioner
Vs.
Maa Television Network Ltd. … Respondent
Petition No.378 (C) of 2011
Shri Hanuman Communications … Petitioner
Vs.
Ushodaya Enterprises Pvt. Ltd. … Respondent
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BEFORE:
HON’BLE MR. JUSTICE S.B. SINHA, CHAIRPERSON
HON’BLE MR.P.K. RASTOGI, MEMBER
In Petition No. 376 (C) of 2011
For Petitioner : Mr. Yoginder Handoo, Advocate
For Respondent : Mr. Nitin Bhatia, Advocate
In Petition No. 377 (C) of 2011
For Petitioner : Mr. Yoginder Handoo, Advocate
For Respondent : Ms. Vismai Rao, Advocate
In Petition No. 378 (C) of 2011
For Petitioner : Mr. Yoginder Handoo, Advocate
For Respondent : Mr. Balaji Srinivasan, Advocate
J U D G E M E N T
Petitioner, a Multi Service Operator operating in the town of Shadnagar
in the State of Andhra Pradesh, has filed these petitions inter-alia praying for a
direction upon the Respondents herein to supply signals of their respective
channels to its network as provided under Clause 3.2 of the
Telecommunication (Broadcasting & Cable Services) Interconnection
Regulations, 2004, as amended from time to time (‘The Regulations’).
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2. We would notice the factual matrix involved in Sun 18 Media Services
Pvt. Ltd. case.
Petitioner made a request to the predecessor in interest of the
Respondent on or about 20.4.2011. However, the same was addressed to a
wrong entity namely M/s. Sun Distribution Systems. Along with the said
purported letter, several documents were said to have been annexed.
Respondent, however, denies and disputes the receipt thereof.
3. A reminder thereto was sent on 05.6.2011, wherewith also no document
was annexed. Reference, however, was made therein to the purported letter of
request dated 20.4.2011. A second reminder was sent to the Respondent on or
about 28.6.2011, wherewith again no document was annexed.
Inter-alia on the premise that the Respondent has failed and/or
neglected to comply with their statutory obligations, as is provided under
Clause 3.5 of the Regulations, this petition has been filed on or about
19.9.2011.
4. Respondent in its reply, inter-alia, contends that on receipt of the
documents annexed to the petition for the first time, it made verification
thereof, whereupon it was found that the LCOs of the Petitioner do not have the
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requisite infrastructure to run their respective networks and in fact some of
them have illegally been set up in their residential houses.
Some of the subscribers, according to the Respondent, have been
obtaining supply of signals from another MSO namely M/s. Shadnagar
Communications, which goes to show that the informations furnished by the
Petitioner were wrong.
5. Maa TV and Ushodaya Enterprises, beside raising discrepancies in
various documents filed by the Petitioner, contend that the Registration
Certificate possessed by it is illegal having been granted by the Postal
Authorities for a period of two years, which is impermissible in terms of Rule 3
of the Cable Television Networks (Regulation) Rules, 1994.
6. By reason of an order dated 17.10.2011 having regard to the pleadings of
the parties, the following issues were framed :-
(i) Whether the petitioner has provided the contact details to the
respondent in terms of the TRAI Regulations?
ii) Whether the respondent has denied supply of its signals to the
petitioner?
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7. The parties hereto have adduced their respective evidences.
Whereas the Petitioner has examined Shri G. Srinivas Yadav, Sun 18 has
examined Mohd. Amer Siddique, Ushodaya has examined Shri A. Sadanandam
and Maa TV has examined Shri K. Siva Adinarayana.
8. Mr. Handoo, learned counsel appearing on behalf of the Petitioner, would
contend :-
(i) Petitioner having supplied to the Respondent requisite
documents including Registration Certificate, List of
equipments, SLRs, Cable Registration Certificate of the
LCOs, the map showing the manner in which the cable has
been laid as also the subscription agreement with Zee Turner
Ltd., there is absolutely no reason as to why they should not
be directed to supply signals of their respective channels to
its network;
(ii) In terms of Clause 3.5 of the Regulations, the Broadcaster
being under a statutory obligation to respond to such
request within a period of 60 days and except Ushodaya, no
other Respondent having done so, it must be held that they
failed to perform their statutory obligations.
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9. Mr. Nitin Bhatia, learned counsel appearing on behalf of Sun 18 Media
Services South Pvt. Ltd., urged :-
(i) Petitioner having not made a valid request, the purported
letter dated 20.4.2011 having been addressed to a wrong
person, this petition must be held to be pre-mature;
(ii) It is incorrect to contend that despite receipt of the letter of
request, the Respondent did not make any effort to verify the
informations supplied by the Petitioner, as PW-1 himself has
categorically stated that a reply from the Respondent had
been received;
(iii) Some of the LCOs/subscribers having taken supply of
signals from another MSO, no direction as has been sought
for by the Petitioner, should be issued;
(iv) Petitioner having not supplied the details of the agreement
with Zee Turner, nor having proved the same in accordance
with law, no reliance can be placed thereupon;
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(v) RW-1, Mohd. Amer Siddique having clearly proved that the
premises, from which the LCOs are stated to have been
operating, are situated in a residential area and some of
them are not even in habitable conditions, the Petitioner is
not entitled to any relief;
(vi) Even the Municipal authorities having clearly stated that no
cable operation business having been going on from the
premises in question, the Petitioner’s case must be held to
be incorrect.
10. Ms. Vismai Rao, learned counsel appearing on behalf of Maa TV,
submitted :-
(i) The Cable Registration Certificate having been granted in
favour of the Petitioner for a period of two years, although in
terms of the Rule, it could have only be granted only for
twelve months, it must be held to be not possessing any
valid certificate after 07.6.2011;
(ii) From a comparison of the documents filed by the Petitioner
and, in particular the Registration Certificates of the LCOs
which were granted on the same day on 18.3.2011 vis-à-vis
the franchise agreements which have been entered into by
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and between the Petitioner and the said LCOs being dated
28.3.2011, it would appear that as LCOs were being supplied
signals three months prior thereto i.e. at a point of time
when they did not possess valid Registration Certificates,
which would clearly go to show that the agreements are
forged and fabricated ones;
(iii) Petitioner, having not filed the pole permissions nor having
supplied the photographs of its network, is not entitled to
any relief as prayed for or otherwise;
11. Mr. Balaji Srinivasan, learned counsel appearing on behalf of Ushodaya
Enterprises, pointed out :-
(i) As on the Petitioner’s own showing, the equipments installed
in its Headend do not satisfy the standard specified by the
BIS, no relief should be granted in its favour;
(ii) From the certificate issued by the Customs & Excise
Department, it would appear that the proprietor of the
Petitioner concern is Shri G. Srinivas Yadav, but the Pan
Card being in the name of Shri Srinivasulu Gaddam, it is
evident that the Petitioner is not a person with whom
business relationship can be grown.
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12. The core question herein is as to the validity of the Registration
Certificates issued by the Postal Authorities under the 1994 Rules.
Petitioner was granted a certificate on 08.6.2010 by the Post Master,
Jedcharla, which reads as under :-
“Shri Hanuman communication Represented by G. Srinivas Yadav
Resident of Shadnagar is Registered as a Cable Operator individual
for running the Cable Television Network at the following address :
H. No.3-56/14/2 Satellite Channels Maa TV, ETV & Gemini TV for a
period of Twelve months with effect from 08.06.2010 to
07.06.2012.His Registration Number is 38.
This Certificate is only valid for the premises stated as above.
This Certificate is not transferable.
This Certificate shall remain valid for the period.”
13. Grant of such certificate is governed by a Parliamentary Act known as
Cable Television Networks (Regulations) Act, 1995.
The term ‘prescribed’ has been defined in Section 2 (f) of the said Act to
mean ‘prescribed under the rules made’ thereunder.
Sections 3 and 4 of the said Act occurring in Chapter II thereof, read as
follows :-
“3.Cable television network not to be operated except after
registration.-No person shall operate a cable television network
unless he is registered as a cable operator under this Act:
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Provided that a person operating a cable television network,
immediately before the commencement of this Act, may continue to
do so for a period of ninety days from such commencement; and if
he has made an application for registration as a cable operator
under section 4 within the said period, till he is registered under that
section or the registering authority refuses to grant registration to
him under that section.
4.Registration as cable operator.-(1) Any person who is operating
or is desirous of operating a cable television network may apply for
registration as a cable operator to the registering authority.
(2) An application under sub-section (1) shall be made in such form
and be accompanied by such fee as may be prescribed.
(3) On receipt of the application, the registering authority shall
satisfy itself that the applicant has furnished all the required
information and on being so satisfied, register the applicant as a
cable operator and grant to him a certificate of such registration:
Provided that the registering authority may, for reasons to be
recorded in writing and communicated to the applicant, refuse to
grant registration to him if it is satisfied that he does not fulfill the
conditions specified in clause (e) of section 2.”
14. Rules were framed by the Central Government in 1994 known as Cable
T.V. Networks (Regulation) Rules, 1994, in terms of Section 22 of the Cable
Television Networks (Regulation Ordinance), 1994.
We may notice Rule 3 of the said Rules :-
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“3. Application for registration as a cable television
network in India.—(1) Every application for registration as a
cable television network in India shall be made in writing in
Form 1 and shall be renewable after every twelve months.
(2) The application shall be addressed to the Registering
Authority and delivered to his officer in Form 1.
(3) (a) Every application for registration or renewal of
registration shall be accompanied by—
1(i) a fee of rupees five hundred only; and
(ii) the requisite documents mentioned in Forms 1
and 2.
(b) Every application for issue of duplicate certificate of
registration shall be accompanied by—
(i) a fee of rupees two hundred and fifty only; and
(ii) the requisite documents mentioned in Form 1.
(4) The amount of fee shall be deposited under the Head Post
Office where the application for registration or renewal of
registration or issue of duplicate certificate of registration is
being made.
(5) The amount of the fees shall be deposited under the head
‘un-classified receipts (U.C.R.);]”
15. Form 1 issued under Rule 3(1) prescribes the manner in which an
application is to be filed. Clause 4(a) provides for the amount of fee paid for
registration/renewal/issue of duplicate certificate.
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Clause 10 provides for enclosure of a copy of the Registration Certificate
to be filled in, only for renewal of registration.
Clause 12 provides for declaration in Form 2 both for registration and
renewal thereof.
We may notice Clauses 4 (b), 5 and 6 of Form 1 prescribed under the
Rule as under :-
“4.(b) Name of Head Post Office (Attach copy of challan vide
which the fees have been deposited)
5. Area in which cable television network is working/
proposed to be set up……….
6. Date from which the cable television network is
operating/proposed to be set up……………”
16. The Registration Certificate is granted in Form 3.
It clearly provides that the same is to be granted for a period of twelve
months.
17. For all intent and purport, the Registration Certificate is a licence to a
cable operator to run its cable business. No person can carry on such a
business without such a certificate. The Act, when rule is validly famed and
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forms are prescribed thereunder, must be construed harmoniously to provide
effective meaning thereto.
(See Chief Conservator of Forests (Wild Life) and Others Vs. Nisan
Kher 2003 (4) SCC 595. See also Francis Bennion, Fifth Edition,
Page 263-264).
It is now well settled that licence is granted so as to permit a person to
do something, which is not otherwise permissible. When an occupation or a
business is governed by a statute, the same cannot be carried out except in
terms thereof.
18. Requirements for prescription of rules are well known. It is necessary
having regard to the increasing complexity of mode of administration. It is now
a normal feature.
19. The reasons for delegated legislation are :-
“(i) Pressure on parliamentary time. In these days of
intensive legislation Parliament can only concentrate on
essentials, leaving the details to be worked out, subject to
suitable parliamentary control, by the various Ministers and
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their departments. This was very apparent in the
nationalization Acts of 1946-48.
(ii) Technical character of modern legislation. A body of 600
members (to take the House of Commons alone) is not well
fitted to deal with matters of technical detail, which are often
quite unconnected with political considerations.
(iii) Need for flexibility. The law must be capable of rapid
adjustment to meet changing circumstances. In an official
minute in 1893, Sir Henry Jenkyns, First Parliamentary
Counsel, wrote: “Statutory rules are in themselves of great
public advantage because the details…and minuteness and
with better adaptation to local or other special circumstances
than they can possibly be in the passage of a Bill through
Parliament. Besides, they mitigate the inelasticity which
would otherwise make an Act unworkable and are
susceptible of modifications…session and its processes
involve delay, o that any rapid adjustment of the law by
direct legislation to meet unknown future conditions is not
normally feasible. “The method of delegated legislation
permits of the rapid utilization of experience and enables the
results of consultation with interests affected by the
operation of new Acts to be translated into practice…It also
permits of experiment being made and thus affords an
opportunity, otherwise difficult to ensure, of utilizing the
lessons of experience.”
(iv) Emergency powers. In modern times the national need may
call for sudden legislative action which Parliament of itself
cannot provide. Often the possibility of the emergency can be
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foreseen and legislation is passed in anticipation, making
immediate action by departments possible the moment the
emergency arises: cf. Emergency Powers Act 1920 and
Emergency Powers (Defence) Act 1939.”
(Craies on Statute Law pg. 291)
20. The Act provides for verification of the details furnished by the Applicant
in his application. Such verification, keeping in view the renewal clause, is
necessary to be carried out every twelve months. A fixed fee therefor has been
prescribed.
21. Mr. Handoo would contend that when a certificate is granted for a period
of two years, the only requirement is to pay two years’ fees namely Rs.1,000/-
in stead and in place of Rs.500/-.
It is difficult to accept the said proposition.
22. A statutory authority, as is well known, must act within the four corners
of the statute. Any act done by a statutory authority, which is not specified in
the statute, must be held to be ultra-vires and, thus, coram non-judice. The
statutory authority, therefore, could not have granted a certificate having
duration of two years, only on payment of an enhanced registration fees.
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If such an argument is accepted, an application can also be filed for
grant of certificate for a number of years.
23. Rule 3 specifies that the application should be renewable every twelve
months, which is itself suggestive of the fact that initial certificate must also be
for a period of twelve months and not more.
We are not unmindful of the fact that right of renewal is a valuable right,
but such a right has to be exercised. Renewal in an ordinary parlance would
mean a fresh grant. For obtaining the renewal, it must undergo the same
procedure unless the statute otherwise specifies, which were required for the
purpose of original grant. The statutory authorities, therefore, in our opinion,
could not have granted a certificate which was valid for more than twelve
months, the law, having prescribed otherwise.
24. Petitioner, therefore, does not possess any valid certificate. Moreover, the
phraseology used in Section 3 of the Act is absolutely clear and unambiguous.
No person is permitted to carry on with the cable TV business without
obtaining a registration certificate.
Section 3, moreover, is couched in negative terms. It uses the words
‘shall’ and ‘unless’, which also clearly goes to show that the same is imperative
in character.
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Section 4 postulates the mode and manner in which the application is to
be filed. The procedures are laid down in the rules.
25. Mr. Handoo, however, would contend that from a perusal of Sections 11
and 12 of the Act it would appear that in the event a person is found to be
carrying on the cable TV business without obtaining a valid registration
certificate, his equipments may be seized but the same shall not be confiscated
if he obtains a registration certificate within four weeks from the date of seizure
thereof.
26. Submissions of Mr. Handoo cannot be accepted for more than one
reason. Firstly, because violation of the provisions of Section 3 of the Act
entails penal consequences as envisaged under Section 16 thereof, which itself
is a pointer to the fact that obtaining of a cable registration certificate is
imperative in character; secondly because, Section 13 provides that nonseizure
or non-confiscation would not be a ground for not proceeding against
the person carrying on business in Cable TV from criminal prosecution.
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27. An act, which is violative of the provisions of the Statute, would be nonest
in the eye of law. It has, however, been correctly submitted that the
certificate has not been contended to be a forged one. It may be so, but, if a
certificate has been granted contrary to the provisions of a statute, the
consequences arising therefrom shall ensue.
28. Petitioner may be a victim of a mistake committed on the part of the
Postal Authorities, but when the same has been brought to the notice of this
Tribunal, it is its duty to see that no order is passed which would violate the
provisions of a validly made statute or statutory rules.
29. Petitioner, so far as Sun TV is concerned, did not supply all the
documents. Keeping in view that such documents were required to be supplied
to the broadcaster, which had been annexed with the petition, as the same
would enable it (the Broadcaster) to verify the same and, thus, in absence of
any basic information, clause 3.5 of the Regulations could not have been
complied with. We would have made an exception in the case of the Petitioner;
but, there are other aspects of the matter which cannot be lost sight of. As
indicated heretobefore, the Petitioner as a Multi Service Operator is bound to
comply with the other statutory requirements. It, in terms of law, cannot
permit an LCO to do something which is otherwise prohibited.
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30. It may be true that the photographs filed by the Respondent have not
been proved.
It has, however, been stated that some of the LCOs have been carrying
on the business from a premise which are not commercial establishments.
Moreover, as has rightly been pointed out by Ms. Vismai Rao that the
agreements entered by and between the Petitioner and the LCOs raise
suspicion about their genuineness.
If the stipulations made therein are correct, the parties have been
carrying on business even prior to obtaining the registration certificate. The
registration certificate of the affiliates and the affiliate agreements, therefore,
are discrepant.
PW-1 in his deposition has clearly admitted that he does not have the
pole permission from the competent authority. He made inconsistent statement
in his cross-examination as firstly he stated that he had obtained such
permission, then stated that he had not and supplemented the same with an
explanation that the same was not required.
Such pole permission from the Electricity authorities are required, as has
been held by this Tribunal in Sree Devi Enterprises Vs. Channel Plus (Petition
No. 156 (C) of 2010).
31. There is another aspect of the matter.
A discrepancy has also been pointed on the identity of the Petitioner
being the proprietor of the Petitioner concern vis-à-vis his Pan Card Number.
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According to PW-1, he got the Pan Card modified, but he did not produce the
same although according to him, he had been carrying it with him.
If Pan Card issued to him stands corrected, he should have produced it,
particularly when he had been carrying the same.
Moreover, he did not have any certificate to show that the equipments
installed at his Headend satisfy the standards laid down by the Bureau of
Indian Standards.
32. For the reasons aforementioned, there is no merit in these petitions,
which are dismissed. However, there shall be no order as to costs.
33. We may, however, observe that this order shall not stand on the way of
the Petitioner to obtain supply of signals of the channels of the Respondents
herein if a valid request is made in terms of the Regulations.
.……….......
(S.B. Sinha)
Chairperson
……………….
(P.K. Rastogi)
Member
rkc
