1
TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
NEW DELHI
Dated 10/04/2012
Petition No. 382(C) of 2011
(With M.A. No. 293 of 2011)
Dish TV India Pvt. Limited … Petitioner
Vs.
ESPN Software India Pvt. Ltd, Gurgaon … Respondent
and
Petition No. 398 (C) of 2011
ESPN Software India Pvt. Ltd, Gurgaon … Petitioner
Vs.
Dish TV India Pvt. Ltd, New Delhi … Respondent
BEFORE:
HON’BLE MR. JUSTICE S.B. SINHA, CHAIRPERSON
HON’BLE MR.P.K. RASTOGI, MEMBER
Petition No.382(C) of 2011
For Petitioner :Mr.Maninder Singh, Senior
Advocate
with Mr.Tejveer Singh Bhatia,
Advocate and Mr.Vadivelu
Deenadayalan, Advocate for
Mrs.Prathiba M. Singh, Advocate.2
For Respondent :Mr.C.S.Vaidyanathan, Senior
Advocate with Mr.N. Ganpathy,
Advocate and Mr.Kartik Yadav,
Advocate.
Petition No.398(C) of 2011
For Petitioner :Mr.C.S.Vaidyanathan, Senior
Advocate with
Mr.N. Ganpathy, Advocate and
Mr.Kartik Yadav, Advocate.
For Respondent :Mr.Maninder Singh, Senior
Advocate
with Mr.Tejveer Singh Bhatia,
Advocate and Mr.Vadivelu
Deenadayalan, Advocate for
Mrs.Prathiba M. Singh, Advocate.
J U D G M E N T
S.B. Sinha
1. Interpretation of some of the provisions of the
Telecommunication (Broadcasting and Cable Services)
Interconnection Regulations, 2004 as amended from time to
time (hereinafter called and referred to for the sake of brevity
as `the said Regulations‘) falls for consideration in these
petitions. 3
Factual Backdrop
2. The Petitioner is a DTH operator; whereas the
Respondent is a content aggregator of three channels ESPN
Services, STAR Cricket and STAR Sports.
3. The parties hereto entered into a Memorandum of
Understanding (MOU) on or about 12.3.2009 which was to
remain valid for a period of four years i.e. upto June, 2012.
4. The Telecom Regulatory Authority of India (TRAI)
inter-alia relying on or on the basis of the decisions of this
Tribunal in ASC Enterprises Ltd. vs. Star India Pvt Ltd. being
Petition No.136 (C)/2006 and Tata Sky Ltd. vs. Zee Turner Ltd.
and Ors. Petition No.189 (C)/2006, by a press Note 39 of 2008
dated 18.4.2008 directed that so far as the DTH operators are
concerned 50% of the rate fixed by the broadcasters for the
Non-CAS areas would be applicable.
5. The TRAI thereafter framed a Tariff Order on or
about 21.7.2010 whereby and whereunder the rate as far as
addressable system was concerned, was reduced to 35% from
50%.
6. By reason of a judgment and order dated
16.12.2010, in various petitions filed by the Broadcasters, the
said Tariff Order was set aside by this Tribunal opining that 4
fixation of ceiling limit to 35% would not subserve the
requirements of fixation of `Tariff Order‘ within the meaning of
Section 11 (2) of the Act.
7. Indisputably the TRAI has carried the matter to the
Supreme Court of India by preferring an appeal there against the
same is pending before it.
8. On or about 18.4.2011 the Supreme Court of India
passed the following interim order :-
―In brief, the DTH operators and MSOs support
TRAI whereas the broadcasters support the order
of TDSAT.
Interim stay of the impugned order of TDSAT
subject to substitution of the figure 42% in place
of 35% in the proviso to Clause 4 (1) and in
proviso (b) to Clause 4 (2) of the tariff order
dated 21.7.2010. This interim order shall be
prospective in operation and shall not affect
contracts already entered.‖ (underlying is ours)
9. It is not in dispute that the TRAI amended the said
Regulations inter-alia by introducing Clause 13.2A, which came
into force on or about 1.12.2007.
10. The said Regulations were amended by Regulation 4
of 2009 as also by reason of 6
th
Amendment of 2010, which
came into force w.e.f. 30.7.2010. 5
11. Pursuant to or in furtherance of the said amended
Regulations, Respondent inter alia published its RIO in its
website.
12. Legality and validity of some of the clauses of the
said RIO being Clause E (V), (4) and (E) (V) (5) came to be
questioned by one of the DTH operators before this Tribunal.
It was marked as Petition No.159 (C)/2010 entitled Tata
Sky vs. ESPN Software India Pvt. Ltd.
In its judgment dated 5.4.2011, this Tribunal noticed :-
Clauses of the RIO Petitioner's Objection
Clause E (V) (4) – the
current Subscription Fee
Plan is an under `DTH
Operators shall sell the
Service to its subscribers
for a minimum period of 1
year.‘
The Respondent cannot
compel the Petitioner to sell
the service of the subscribers
for a Minimum period of 1
year. The subscribers are
monthly paying subscribers
and they pay for what they
watch. Its upto them to take
or drop any channels at any
time and the Petitioner
cannot exercise any control
over the same and hence the
clause is not acceptable.
Clause E (V) (5) – DTH
Operator shall be liable to
pay to the Company all
amounts due and payable
irrespective of whether the
ESS Subscribers have
actually paid such amounts
The said clause is not
acceptable to the Petitioner
as the Petitioner cannot be
held responsible if the
subscribers of Respondent‘s
channels stop paying the
concerned amount and 6
It was furthermore noticed :-
―(xxi) On the merit of the impugned provisions
of the RIO, it was urged :-
(i) Clause E (V) (4) wherein a minimum period
of one year has been prescribed, a period of
three months may be provided;
(ii) in the case of clause E (V) (5) also a similar
period may be read;‖
13. According to the Petitioner, however, it was not
aware of the stand taken by the Respondent herein in the
aforementioned proceeding.
14. Pursuant thereto or in furtherance thereof, a revised
RIO was offered to the Petitioner by the Respondent on or about
6.7.2001. It was accepted by it by a letter dated 25.7.2001,
w.e.f. 1.9.2011 stating:-
―… In view of the above and having regard to
the statutory rights available to us under the
TRAI Regulations including the Regulations of
2004 and 2007 mentioned in your letter dated
6.7.2011, it is requested that ESS should
provide its channels/ bouquet as mentioned
below for re-transmission on Dish TV (our DTH
to him or whether any such
ESS Subscribers are active
or have been deactivated
by DTH Operator.
especially when their services
are deactivated. The
Petitioner will pay according
to the license fee clause as
enumerated in the TRAI
Regulations. So in this light,
this clause is redundant.7
platform) w.e.f 1.9.2011 in terms of the RIO
rates revised by ESS and intimated vide the
above-mentioned letter dated 6.7.2011. It is
stated that we have decided to commence the
distribution/ re-transmission of the following
ESS channels on the revised RIO rates of ESS
w.e.f 1.9.2011 :-
(i) Bouquet (containing ESPN & Star Sports
Channels) @ 19.85 per subscriber per month.
(ii) Star Cricket Channel on a la carte basis
@ 12.58
(iii) ESPN Channel on a la carte basis @
14.89
(iv) Star Sports Channel on a la carte basis
@ 14.89
You are accordingly requested to kindly
raise the monthly invoices from the period
starting from 1.9.2011 onwards on the basis of
ESS RIO rates as revised by ESS
communication dated 6.7.2011 and as per the
monthly report pertaining to the number of
subscribers available your channels on
Bouquet/ Ala carte basis, provided by Dish TV
to ESS.‖
15. The Petitioner furthermore by another letter dated
25.7.2011 informed the Respondent herein that the
aforementioned Clauses V (iv) and V (v) are required to be
modified in conformity with the TRAI Regulations.
It was contended:-8
― …Regarding the formality for execution of the
agreement, we are also required to state here
that each of the term and condition of the
RIO published and thereafter revised by ESS,
has to be strictly in conformity with the
regulations and norms laid down by TRAI and
which are required to be mandatorily followed
by each of the broadcaster including by ESS.
You would appreciate that the TRAI through its
norms and tariff has stipulated that no DTH
operator would be permitted to charge its
subscribers subscription of more than 3 months
for any channel being distributed by the DTH
operator on ala carte basis if the subscriber
chooses to not to avail the signals of such
channels. As such, it is not permissible for DTH
operators to recover from its subscribers
subscription for any c hanne l be ing
dis t r ib ut e d o n ala c ar t e ba s is f o r a
pe r io d o f mo r e t han 3 months when the
subscriber chooses to discontinue receiving of
signals of Sports channels from the DTH
operator. Further more, the stipulation of
subscription period of minimum 3 months by a
DTH operator on its subscribers is permissible
only when the channel is being availed by a
subscriber from a DTH operator on ala carte
basis.‖
16. The said letter was issued, according to the
Petitioner, as it was not aware of the said judgment nor was it
informed thereabout by the Respondent.
17. The Respondent, however, by a letter dated
2.8.2011, informed the Petitioner that the said RIO dated
6.7.2011 was not applicable in its case in view of the 9
aforementioned order dated 18.4.2011 passed by the Supreme
Court of India.
18. The Petitioner, however, by its letter dated 8.8.2011
while contending that the `contracts‘ referred to by the Supreme
Court of India were those which were entered into on the RIO
basis, requested the Respondent to counter sign the agreement
in terms of the Interconnect Regulations.
19. Several communications were exchanged between
the parties.
The Present Proceedings
20. This petition was filed by the Petitioner on
14.9.2011, praying inter alia for the following reliefs :-
―(a) Directing the Respondent to make the
necessary changes/amendments in its
Reference Interconnect Offer so as to bring the
same in compliance and in conformity with the
applicable TRAI Regulations and the tariff
order.
(b) Setting aside and quashing Clause V.4 and
V.5 of the RIO of the Respondent;
(c) Directing the Respondent to complete the
process of execution of the agreement
between the parties for supply of the signals of
its 3 Channels (ESPN, Star Sports and Star
Cricket) for the DTH service of the Petitioner
on non-discriminatory basis and in terms of the
Regulations prescribed by the TRAI for this
purpose i.e. on RIO basis w.e.f. 1.9.11.‖10
21. The Respondent also filed a separate petition,
praying inter alia for the following reliefs :-
― (a) declare the request made by the
Respondent to the Petitioner for entering into a
fresh agreement as not binding on the
Petitioner.
(b) pass an appropriate order/direction to the
Respondent to specifically perform the
obligations assumed including with regard to
the mode and manner of transmission of the
Petitioner‘s channels as envisaged under the
MoU dated 12.3.2009.‖
22. On a prayer made by the Petitioner for grant of an
interim injunction in mandatory form the matter was heard at
great length by this Tribunal.
23. It, however, despite finding a prima facie case in
favour of the Petitioner in its order dated 30.9.2011 opined as
under:-
― 22. The effect of an agreement, which
should have been entered into by and
between the parties herein with effect from
01.9.2011, can be worked out.
The Petitioner can, in other words, be
sufficiently compensated on monetory terms.
25. Moreover, in our opinion, interest of
justice would also be sub-served if in the
meanwhile, the parties obtain an order of
clarification from the Hon. Supreme Court of
India in this behalf.‖11
24. However, on 14.10.2011, it may be placed on
record, the Respondent filed an application for clarification of the
said order dated 18.4.2011, inter alia on the premise that the
same would not be attracted in a case involving Add-on
packages.
25. The said Application was rejected by the Supreme
Court of India in terms of an order dated 18.11.2011.
The Regulation
26. We may at this stage notice some of the provisions
of the relevant clause of the Regualtion:-
13 Reference Interconnect Offer
xxx
13.2A Reference Interconnect Offers for direct
to home service
13.2A.1 Every broadcaster, providing broadcasting
services before the date of commencement of the
Telecommunication (Broadcasting and Cable
Services) Interconnection (Sixth Amendment)
Regulation, 2010 (4 of 2010) and continues to
provide such services after such commencement
shall, within thirty days from the date of such
commencement, intimate to all the direct to home
operators existing on that date and coming into
existence within the said period of thirty days, its
Reference Interconnect Offer specifying, inter-alia,
the technical and commercial terms and conditions
for interconnection for the direct to home platform,
including the terms and conditions listed in Schedule
III to these Regulations.
Provided that no broadcaster shall, directly or
indirectly, compel any direct to home operator not to
make available its direct to home service to any class 12
of subscribers including commercial subscribers.
Provided further that a broadcaster may have a
different Reference Interconnect Offer for supply of
signals by the direct to home operators—
(a) to the following categories of commercial
subscribers, namely:-
(i) hotels with rating of three star and above;
(ii) heritage hotels (as described in the guidelines for
classification of hotels issued by Department of
Tourism, Government of India);
(iii) any other hotel, motel, inn, and such other
commercial establishment providing board and
lodging and having fifty or more rooms; and
(b) in respect of programmes of such broadcaster,
shown on the occasion of a special event for common
viewing, at any place registered under the
Entertainment Tax Law and to which access is
allowed on payment basis for a minimum of fifty
persons.
Explanation:
For removal of doubts, it is clarified that the
reference interconnect offer containing various terms
and conditions including commercial terms, published
by a broadcaster for provision of signals to ordinary
subscribers shall apply to provision of signals to
commercial subscribers not specified in the second
proviso.‖
13.2A.2 Every broadcaster shall publish a copy of the
Reference Interconnect Offer, referred to in sub
regulation 13.2A.1, on its website:
Provided that any broadcaster, who had intimated or
published on its website, before the commencement of
the Telecommunication (Broadcasting and Cable
Services) Interconnection (Sixth Amendment)
Regulation, 2010 (4 of 2010), any Reference
Interconnect Offer, shall modify such Reference 13
Interconnect Offer so as to be in conformity with the
Reference Interconnect offer referred to in regulation
13.2A.1 and publish the same as required under this
sub-regulation.
13.2A.3 Every broadcaster, who begins to provide
broadcasting services after the date of
commencement of the Telecommunication
(Broadcasting and Cable Services) Interconnection
(Sixth Amendment) Regulation, 2010 (4 of 2010)
shall, within thirty days of such commencement
or before providing such services, whichever is
later, intimate to all the direct to home operators
existing on that date, its Reference Interconnect Offer
specifying therein the technical and commercial terms
and conditions referred to in sub-regulation 13.2A.1
and publish the same, before or simultaneously with
such intimation, on its website.
13.2A.4 Every direct to home operator, who has been
granted a licence after thirty days from the date of
commencement of the Telecommunication
(Broadcasting and Cable Services) Interconnection
(Sixth Amendment) Regulation, 2010 (4 of 2010),
may request a broadcaster for being provided with a
copy of Reference Interconnect Offer of such
broadcaster and such broadcaster shall, within ten
working days from the date of receipt of such a
request, provide the same to the direct to home
operator.
13.2A.5 Every broadcaster, who makes any
modification to its Reference Interconnect Offer
referred to in sub-regulation 13.2A.1 or sub-regulation
13.2A.3 , shall, immediately after such modifications,
intimate to all the direct to home operators such
modifications so made to its Reference Interconnect
Offer: 14
Provided that all such modifications shall be published
and exhibited on its website in the same manner as
the Reference Interconnect Offer had been intimated
to the direct to home operators and published on the
website of the broadcasters.
Agreements between the broadcasters and direct to
home operators.
13.2A.6 (1) The Reference Interconnect Offer of a
broadcaster referred to in clause 13.2A.1 or 13.2A.3
or 13.2A.5, as the case may be, and intimated to the
direct to home operators and published by the
broadcaster on its website shall be the basis for all
interconnection agreements to be entered into
between the broadcaster and direct to home
operators:
Provided that the broadcaster may enter, on non
discriminatory basis, into agreements with different
direct to home operators modifying the Reference
Interconnect Offer on such terms and conditions as
may be agreed upon between them:
Provided further that in case a broadcaster had
entered, before the commencement of the
Telecommunication (Broadcasting and Cable Services)
Interconnection (Sixth Amendment) Regulation, 2010
(4 of 2010), into an agreement with any direct to home
operator and publishes, subsequently, its Reference
Interconnect Offer (including its modifications) under
said regulations, such broadcaster shall, after
publication of the said offer, give an option to such
direct to home operator to either enter into an
agreement in accordance with these regulations or
continue with the agreement entered before such
commencement till its validity.15
(2) No broadcaster, who had, before the
commencement of the Telecommunication
(Broadcasting and Cable Services) Interconnection
(Sixth Amendment) Regulation, 2010 (4 of 2010),
entered into an agreement with a direct to home
operator and such direct to home operator has given an
option under sub-regulation (1), to enter into an
agreement with such broadcaster in accordance with
the Reference Interconnect Offer published after such
commencement, shall disconnect signals (except in
accordance with these regulations or any other law for
the time being in force) during the period beginning
from the date on which such operator gave the option
and ending on the date on which such agreement was
entered in accordance with the Reference Interconnect
Offer or the date of expiry of earlier agreement,
whichever was earlier.
(3) No broadcaster, who had, before the
commencement of the Telecommunication
(Broadcasting and Cable Services) Interconnection
(Sixth Amendment) Regulation, 2010 (4 of 2010),
entered into an agreement with a direct to home
operator and such direct to home operator has given an
option under sub-regulation (1), to continue with the
agreement entered, before such commencement, with
such broadcaster, shall disconnect signals of such
operator (except in accordance with these regulations
or any other law for the time being in force) during the
validity of such agreement.
Time limit for entering into agreements between the
broadcasters and direct to home operators.
13.2A.7 (1) Every broadcaster shall, within a period of
forty-five days from the date of receipt of request from
a direct to home operator for entering into
interconnection agreement or for modification of an
interconnection agreement already entered, shall enter
into an agreement, or, modify such agreement already
entered, with such direct to home operator, in
accordance with the Reference Interconnect Offer
published under these regulations. 16
(2) In case a broadcaster intimates any modification as
referred to in regulation 13.2A.5, the agreement
referred to in sub-regulation (1) shall be modified at the
option of the direct to home operator, in the same
manner as that of entering into of an agreement under
sub-regulation (1).
13.2A.8 In case the broadcaster and the direct to home
operator fail to enter into an interconnection agreement,
then both of them may jointly, without prejudice to the
provisions of section 14A of the Act, at any time,
request the Authority to facilitate in the process for
entering into an interconnection agreement.
13.2A.9 Nothing contained in clause 13.2A.8 shall be
construed to take away any legal right conferred upon
the broadcaster and the direct to home operator under
any law for the time being in force and either of them
may, at any time during the facilitation process,
exercise such right conferred upon them under any law
for the time being in force.
13.2A.10 Nothing contained in clause 13.2A.8 or
13.2A.9 shall apply to any matter or issue for which
(a) any proceedings are pending before any court or
tribunal under the Act or any other law for the time
being in force; or
(b) a decree, award or an order has already been
passed by any competent court or tribunal or Authority,
as the case may be.
Compulsory offering of channels on a-la-carte basis.‖
Contentions
27. Shortly stated, the contention of the Petitioner is
that having regard to the statutory scheme contained in the
aforementioned Regulations, it was obligatory on the part of the 17
Respondent to provide an option to the Petitioner either when
the original RIO was issued and/or when the modified RIO was
issued.
28. It was urged that to opt for an RIO based contract
or continue with the non-RIO based contract is the prerogative
of the parties and once a DTH operator opts for an RIO contract,
the `Broadcaster‘ will have no other option but to agree thereto.
29. The Respondent, on the other hand, urged:-
(i) The Supreme Court having made its order
dated 18.4.2011 only with prospective effect, this
petition is not maintainable.
(ii) As the order of the Hon‘ble Supreme Court
would not apply to an existing contract, this Tribunal
has no jurisdiction to decide the issue;
(iii) Clause 13.2A.6 should be read with Clause
13.2A.10 of the Regulations, from a perusal whereof,
it would be absolutely clear that the RIO issued in
2010 cannot be the subject matter of migration from
a non-RIO based contract to an RIO based contract;
(iv) The offer made by the Respondent being not a
voluntary one, the same would not constitute an 18
`offer‘ within the meaning of Section 5 of the Indian
Contract Act;
(v) In any event the parties having acted within of
a non-RIO contract for such a long time, this
Tribunal should not exercise its jurisdiction, as on
the expiry of the four years term, the parties may
enter into a RIO based contract or a non-RIO
contract by mutual consent.
Construction of Statute
30. What would be the effect of the proviso appended to
clause 13.2 A of the Regulation is the principal question.
31. A proviso has four different meanings. (See S.
Sundram Pillai 1985(1) S.C.C. 591 at 613 and Dipak Chandrda
Ruhidas vs. Chandan Kumar Sarkar (2003) 7 SCC 66 at 71).
32. In this case the second proviso must be read in the
context of the main provision. The purpose and object of the
Regulations and particularly several sub-Clauses of Clause 13.2A
should be taken into consideration therefor.
33. It is also well-known that plain meaning should be
given to the words of the legislature. The language used in the
said provision is quite clear and unambiguous. 19
34. It would be, in our opinion, futile to go into the
question as to whether it operates as a substantive provision or
only by way of `Exception‘.
Purposive Construction.
35. The doctrine of ‗purposive construction‘ may be
resorted to when following a literal meaning of the enactment
would lead to an anomaly and in a case where the literal
meaning would not be in accordance with the legislative
purpose.
36. Francis Bennion on statutory Interpretation 5
th
Edition at page 945, states the law thus:-
―….Legislation is still about remedying what is
thought to be a defect in the law. Even the
most ‗progressive‘ legislator, concerned to
implement some wholly novel concept of social
justice, would be constrained to admit that if
the existing law accommodated the notion
there be no need to change it. No legal need
that is. Legislation possesses a propaganda
value also.
Contrast with literal construction Although the
term `purposive construction‘ is not new, its
entry into fashion betokens a swing by the
appellate courts away from literal construction.
Lord Diplock said in 1975 :
`If one looks back to the actual
decisions of [the House of Lords] on
questions of statutory construction
over the last 30 years one cannot fail
to be struck by the evidence of a
trend away from the purely literal 20
towards the purpose construction of
statutory provisions.‘
37. The matter was summed up by Lord Diplock in this
way:
―…I am not reluctant to adopt a
purposive construction where to
apply the literal meaning of the
legislative language use would lead
to results which would clearly
defeat the purposes of the Act. But
in doing so the task on which a
court of justice is engaged remains
one of construction, even where
this involves reading into the Act
words which are not expressly
included in it. Kammins Ballrooms
Co Ltd V Zenith Investments
(Torquay) Ltd [1971] AC 850
provides an instance of this; but in
that case the three conditions that
must be fulfilled in order to justify
this course were satisfied. First, it
was possible to determine from a
consideration of the provisions of
the Act read as a whole precisely
what the mischief was that it was
the purpose of the Act to remedy;
secondly, it was apparent that the
draftsman and Parliament had by
inadvertence overlooked, and so
omitted to deal with, an eventuality
that required to be dealt with if the
purpose of the Act was to be
achieved; and thirdly, it was
possible to state with certainty what
were the additional words that
would have been inserted by the
draftsman and approved by
parliament had their attention been
drawn to the omission before the
Bill passed into law. Unless this
third condition is fulfilled any 21
attempt by a court of justice to
repair the omission in the Act
cannot be justified as an exercise of
its jurisdiction to determine what is
the meaning of a written law which
parliament has passed.‘
Lord Diplock‘s third point is, with respect,
erroneous. In an earlier case the House of
Lords had adopted a purposive-and-strained
construction while expressly ruling out any
need to formulate the missing words. The truth
is that it is almost invariably possible to
formulate the same legislative proposition in
numerous different ways. All drafters know
that no two of them, given a set of
instructions will produce a Bill in identical
wording, or anything like it.‖
38. The Supreme Court of India in M. Nizamudeen v.
Chemplast Sanmar Limited, (2010) 4 SCC 240 at page 255,
stated the law in the following terms :-
―38. It is well settled that if exception has
been added to remedy the mischief or defect,
it should be so construed that it remedies the
mischief and not in a manner which frustrates
the very purpose. Purposive construction has
often been employed to avoid a lacuna and to
suppress the mischief and advance the
remedy. It is again a settled rule that if the
language used is capable of bearing more than
one construction and if construction is
employed that results in absurdity or anomaly,
such construction has to be rejected and
preference should be given to such a
construction that brings it into harmony with
its purpose and avoids absurdity or anomaly as
it may always be presumed that while
employing a particular language in the 22
provision absurdity or anomaly was never
intended.
39. Notwithstanding imperfection of expression
and that exception clause is not happily
worded, we are of the view that by applying
purposive construction, the expression, ―in the
port areas‖ should be read as ―in or through
the port areas‖. The exception in Para 2(ii)
then would achieve its objective and read,
―except transfer of hazardous substances from
ships to ports, ships to terminals and ships to
refineries and vice versa, in or through the
port areas‖. This construction will be
harmonious with Para 3(2)(ii) which permits
the activity of laying pipelines in the CRZ
area.‖
39. We must also consider that the provisions of the RIO
had been made for the benefit of the DTH operators.
40. If such a beneficial provisions can be applied we do
not see any reason as to why the same should be denied to the
operations.
41. The DTH operators were otherwise entitled thereto.
Denying the same would defeat the purpose for which the
Regulations were framed (see Mohd. Saud and Anr. vs. Dr.
(Maj.) Shaikh Mahfooz) reported in (2010) 13 SCC 517, Central
Board of Secondary Education and Anr. vs. Aditya Bandophayay
and Ors. reported in (2011) 8 SCC 497 and Employees Provident
Fund Commissioner vs. Official Liquidator of ESSKAY
Pharmaceuticals Ltd. reported in (2011) 10 SCC 727). 23
42. In Grid Corporation of Orissa Ltd vs. Eastern Metals
& Ferro Alloys, (2011) 11 SCC 334, the Supreme Court of India
stated the law thus:-
―25. This takes us to the correct interpretation
of Clause 9.1. The golden rule of interpretation
is that the words of a statute have to be read
and understood in their natural, ordinary and
popular sense. Where however the words used
are capable of bearing two or more
constructions, it is necessary to adopt
purposive construction, to identify the
construction to be preferred, by posing the
following questions: (i) What is the purpose for
which the provision is made? (ii) What was the
position before making the provision? (iii)
Whether any of the constructions proposed
would lead to an absurd result or would render
any part of the provision redundant? (iv)
Which of the interpretations will advance the
object of the provision? The answers to these
questions will enable the court to identify the
purposive interpretation to be preferred while
excluding others. Such an exercise involving
ascertainment of the object of the provision
and choosing the interpretation that will
advance the object of the provision can be
undertaken, only where the language of the
provision is capable of more than one
construction. (See Bengal Immunity Co. Ltd. v.
State of Bihar1 and Kanai Lal Sur v.
Paramnidhi Sadhukhan2 and generally Justice
G.P. Singh‘s Principles of Statutory
Interpretation, 12th Edn., published by Lexis
Nexis, pp. 124 to 131, dealing with the rule in
Heydon.‖24
Effect of the I.A. filed by the Respondent
43. In our order dated 30.9.2011, it was observed :-
―25. Moreover, in our opinion, interest of
justice would also be sub-served if in the
meanwhile, the parties obtain an order of
clarification from the Hon. Supreme Court of
India in this behalf.‖
44. ESPN had filed an IA for clarification before the
Supreme Court of India. It is true that the said application was
filed much prior to the date of passing of the said order. The
Respondent in its reply contended as under :-
―…It would be relevant to mention that the
Respondent has filed IA bearing no.9 of 2011
before the Hon‘ble Supreme Court to seek
variation/vacation of its interim order dated
18.4.2011. The said IA was listed for hearing
on September 30, 2011 when notice was
issued and directions were also issued to all
parties opposing the same to file their
respective replies. The Respondent submits
that in the event the Hon‘ble Supreme Court
eventually modifies and/or vacates the said
interim order dated 18.4.2011 and in the
meantime, this Hon‘ble Tribunal passes any
order allowing the relief at prayer (c) of the
petition, the Respondent would be severely
prejudiced. Therefore, it is submitted that it
would be in the fitness of things if status quo is
maintained till decision on IA No.9 of 2011 is
taken by the Hon‘ble Supreme Court.‖
45. It is not in dispute that the Petitioner has not filed
any other I.A. The said IA was dismissed by the Supreme Court
of India by an order dated 18.11.2011, opining :-25
―We have heard learned counsel for the parties
and perused the record.
In our view, there is no valid ground or
justification to modify order dated 18.4.2011.
Interlocutory Application No.9 is accordingly
dismissed.‖
46. The ESPN could have filed another IA. If it did not
choose to do so, at this stage it does not lie in its mouth to
contend that the Petitioner also could have filed an IA.
47. The Petitioner was not concerned with RIO contract
at that time and, thus, it was not necessary for it to file any
application for clarification.
Interpretation of the Regulations
48. The said Regulations cover the field of Broadcasting
and Cable services.
49. There cannot be any controversy that the terms of a
contract would give way to a statute in a regulatory regime.
50. RIO has been defined in Clause 2 (o) of the
Regulation to mean :-
―2. Definitions:
2 (o) ―RIO‖ means the Reference Interconnect
Offer published by a Party, prescribing
conditions by fulfilling which other Parties would
be entitled to obtain interconnection from that
party.‖26
51. The TRAI provided for RIO so far as non-addressable
system is concerned in the year 2007. Clause 13.2A provides for
RIO for `Direct to Home‘ service. Clause 13.2A.1 imposes a
statutory duty upon the broadcaster to intimate to all the Direct
to Home operators as on the date of coming into force, the
original order or the 2010 order to intimate to them that it has a
right to opt for RIO.
52. By reason of imposition of such a duty, a
corresponding right has been created. Clause 13.2A.2
mandates the Broadcaster to publish the said RIO.
53. Clauses 13.2A.3 and 13.2A.4 are not relevant for our
purpose.
54. Clause 13.2A.5 takes note of any modification to the
RIO by a Broadcaster which is also required to be intimated to all
the DTH operators.
55. The proviso appended thereto postulates that such a
modification shall also be published and exhibited on its website
so as to intimate the DTH operators.
56. Clauses 13.2A.6 provides for agreements between
the broadcasters and DTH operators. It refers to Clauses
13.2A.1 being the original RIO and 13.2A.5 being the modified
one. 27
57. It mandates, subject to the parties agreeing to a
non-RIO contract that such published RIO shall be the basis for
all interconnect agreements. The proviso appended thereto,
however, gives liberty to the parties to freedom of contract.
58. Indisputably, despite the 2007 Amendment to the
Regulation, the parties had entered into a Memorandum of
Understanding.
59. The crucial clause for this matter is the second
proviso appended to the said 13.2A.6.
60. We may at this stage may also notice Paragraph 19
of the Explanatory Memorandum of the TRAI.
61. It reads as under:-
―The Reference Interconnect Offer is only a
methodology for arriving at interconnection
agreements and the service providers and
broadcasters can also enter into an
interconnection agreement on mutually agreed
terms and conditions. However, since the
overriding principle is provision of signals on
non discriminatory basis, the broadcaster shall
be required to offer the same terms and
conditions to any other DTH Operators if so
requested by such other DTH Operators.‖
62. The second proviso appended to Clause 13.2A.6, in
the event, it is capable of two meanings, must be read with the
said Explanatory Memorandum. 28
63. A perusal of the said paragraph would clearly go to
show that if the Regulation permits the DTH operator to exit
from a non-RIO contract, there is, in our opinion, no way
whereby it can be restrained/ prohibited from getting the said
benefit.
64. In the aforementioned context, we may also notice
that for the purpose of giving effect to such an option, subClause 2 of Clause 13.2A.8 clearly prohibits a Broadcaster from
disconnecting signals during the period beginning from the date
when such option is exercised by the operator and ending on the
day on which the agreement is entered into in accordance with
the RIO or the date of expiry of the agreement, whichever is
earlier.
65. The said provision also is a pointer to show that exit
from a non-RIO contract having regard to the provisions
contained in the Regulations must be held to be permissible.
66. The time limit for entering into such an agreement or
modified agreement as provided for in the Clause 13.2A.7 must
also be taken into consideration for the purpose of appreciating
the regulatory scheme. It provides not only for a new
agreement to be entered into but also an agreement which
stands modified by reason of such modified RIO. Sub-Clause 2 29
of Clause 13.2A.7 is not a proviso to Clause 13.2A.6. It refers to
Clause 13.2A.5 which would clearly mean a modified RIO and
the rights and obligations of the Parties flowing therefrom.
67. Mr.Vaidyanathan, learned senior counsel relied upon
Clause 13.2A.10 to contend that as the proceedings pending
before a court of law would not come on the way of the said
regulations, the Supreme Court‘s order cannot be set at
naught. We are of the opinion, that the said provision has no
application.
68. Clause 13.2A.10 was introduced keeping in view the
provisions of Clause 13.2A.8 and Clause 13.2A.9. Despite the
fact that in terms of the TRAI Amendment Act, 2000, the TRAI
has been deprived of its adjudicatory power, in terms of Clause
13.2A.8 it assumed the jurisdiction of a facilitator, subject of
course, to the condition that both the parties agreed thereto.
69. Clause 13.2A.9, however, clearly provides that even
when such facilitatory provision is resorted to, any party thereto
may move an appropriate court.
70. It is in furtherance of the said provisions only Clause
13.2A.10 was enacted which has nothing to do with the
construction of an order passed by the Hon‘ble Supreme Court of
India. 30
71 Mr.Vaidyanathan, learned senior counsel would
contend that the second proviso appended to Clause 13.2A.6
applies only if a new RIO is published after the 2010 Amendment
came into force and in respect of any RIO issued prior thereto.
72. We are not in a position to agree to the said
submission. We would, however, consider this aspect a little
later.
73. Sub-Clause 2 of Clause 13.2A.6 laying down the time
limit for entering into agreements between the Broadcasters and
DTH operators govern the subsequent clauses; in terms whereof
such an agreement has to be entered into within a period of 45
days from the date of request received from DTH operator either
in respect of the original RIO or in modification of
interconnection agreement already entered. Such agreement
has to be entered into in accordance with the RIO published
under the Regulations. Sub-clause 2 of the said provision refers
to the modification of RIO at the option of the DTH operators in
the same manner as that of entering into an agreement under
sub-Regulation 1.
74. A plain reading of the aforementioned provisions
would lead to the following. 31
(i) The parties may be governed by the RIO
regime, but they would be at liberty to remain
outside the same.
(ii) Broadcaster, however, is under a
statutory obligation to intimate thereabout to
the DTH operators not only sofar as the
original RIO is concerned but also the
modification thereof and the DTH operators on
such intimation may opt either for (a) to
continue with the non-RIO agreement or (b) to
opt for the modified RIO.
(iii) The offer made by the broadcaster
by way of intimation to the DTH operator
would be at two stages i.e. (a) when the
original RIO was published; or (b) when the
modified RIO was published.
(iv) The time frame fixed therefor
postulates that in the event the DTH operators
elect to migrate from non-RIO contract to RIO
contract, such an agreement has to be entered
into within a period of 45 days. 32
75. It is not in dispute that the Respondent has already
published its RIO in 2007. If that be so, it was open to the
parties concerned to opt for entering into a non-RIO agreement.
76. Furthermore, it is not in dispute that the Respondent
herein made an offer to the Petitioner by giving an intimation
thereabout on or about 6.7.2011 which was accepted by the
Petitioner on 25.7.2011. On acceptance of such an offer and/or
exercise of an option to migrate to RIO agreement from non-RIO
agreement, the parties should have entered into an agreement
within a period of 45 days.
77. Petitioner, however, by its letter dated 25.7.2011
contended that Clauses E (4) and E (5) of the RIO were not in
consonance with the TRAI Regulations.
78. It is now accepted that the judgment of this Tribunal
in Tata Sky (supra) has attained finality and the Respondent, in
view of the decision of this Tribunal, cannot give effect thereto.
79. In that view of the matter it is difficult for us to
agree with the contention of Mr.Vidyanathan that after 2010, the
Respondent had no statutory obligation to give an option to the
Petitioner herein in terms of the second proviso appended to
Clause 13.2A.6. 33
80. Mr.Vaidyanathan would contend that the situation in
terms of the said proviso is different and distinct from the main
provision.
81. It is now a well-settled principle of law that the
provisos have four different roles to play. It has been so held in
S. Sundaram Pillai (Supra).
82. It has been a common ground that except in a case
where the freedom of contract is resorted to, the RIO provisions
would govern the field.
83. The question is that whether despite entering into a
Memorandum of Understanding for a period of four years, the
Petitioner was entitled to opt for an RIO agreement upon
modification thereof?
84. Our answer thereto is in the affirmative. The main
provisions contained in Clause 13.2A.6 confers a duty upon the
Broadcaster to make RIO as the basis for all interconnection
agreements.
85. Whereas the first proviso contains an exception
thereto, the second proviso refers to an agreement which had
already been entered into by the concerned parties before the
2010 amendment. 34
86. What is postulated by reason thereof is a publication
of such RIO including its modification subsequently which in the
context of the regulatory regime should mean publication of a
modified RIO also.
87. Even prior to 2010, such a statutory duty was
fastened on the broadcaster i.e beginning from 2007.
88. That is how even the Respondent also understood
the same as indeed it had made an offer to the Petitioner.
89. If the second proviso is attracted, an option is
required to be given to the DTH operators. Such an option
would be to either to enter into a new agreement or continue
with the old one.
90. Statute as it is well-known, may be read keeping in
view the history of legislation.
91. It is difficult to conceive that on the one hand a right
has been conferred to the DTH operators to exercise its option
one way or the other by reason of 2010 Regulation the same has
been taken away.
92. Mr.Vaidyanathan, submitted that Clause 13.2A.6
advisedly does not refer to Clause 13.2A.2.
93. The said clause on a plain reading only provides for
publication of the RIO and is not a charging provision. 35
Publication of RIO would be a ministerial act. It does not for all
intent and purport create any right or impose any duty.
94. Sofar as modification of the original RIO is
concerned, the same is covered by Clause 13.2A.5 of the
Regulations; in terms whereof the operators are required to
intimate even such modifications to the DTH operators.
Intimation to the DTH operators in terms of Clause 13.2A.1 or
Clause 13.2A.5 is not an empty formality. It is required to be
acted upon one way or the other.
95. By reason of such intimation, if option is to be
granted to the DTH oerator the same must be held to have a
purpose. It cannot be held to be operating in a vacuum.
96. What would be the effect of the option has
specifically been stated in the said proviso, namely, the parties
would either enter into an agreement in accordance with the
Regulations or continue with the agreement during the period of
its validity.
97. Whenever any amendment had been made, the
same has been substituted in the main provision but by reason
thereof the effect of the earlier provision cannot be said to have
been taken away. 36
98. It is true that the second proviso does not provide
for any new right. It was not necessary, as the rights were
already conferred on the DTH operators in terms of the
Regulations.
99. It is true that the first proviso appended to Clause
13.2A.6 recognizes a contract different from the RIO but for the
purpose of giving an effective meaning thereto, the entire
statutory scheme has to be read as a whole.
100. In any event both the provisos must be read keeping
in view the rights and obligations of the parties in terms of main
provision.
101. It is thus, difficult to agree that the second proviso
postulates a situation when an RIO is published for the first time
in 2010 as it, in our considered view, includes the modified RIO
also.
102. With that backdrop, we may notice the provisions of
Clause 13.2A.7. Both clauses 13.2A.6 and 13.2A.7 undoubtedly
are part of the same scheme.
103. However, as indicated hereto before, the purpose for
which Clause 13.2A.7 has been made is different.
104. In any event, the rights of a DTH operator, namely,
when a RIO contract is to be entered into by and between the 37
parties within the purview of provisions of Clause 13.2A.1 and
Clause 13.2A.5, the same is required to be done within a period
of 45 days.
105. Sub-Clause 2 of Clause 13.2A.7 merely reinforces
the said proposition, namely, in respect of even a modified
agreement, if an RIO agreement had already been entered into,
such modified agreement must be entered into within the same
period i.e. 45 days.
106. Mr.Vaidyanathan, urged that the offer made by the
Respondent was not a valid one.
107. If by reason of the provision of a statute, the
Broadcaster was fastened with certain duties, it was bound to
follow the same as otherwise the consequences flowing
therefrom shall ensue. The Broadcaster, even may face
appropriate criminal proceeding for violating the statutory
provisions.
107. The TRAI can compel a Broadcaster to amend the
RIO, if it is not in terms of the Regulations or not otherwise
governed by granting freedom of contract to the parties clause.
The freedom of contract in regard thereto has been recognized.
108. It is, therefore, difficult for us to agree with the
submissions of Mr.Vaidyanathan, that the offer of the 38
Respondent being not voluntarily, no contract could have been
entered into in terms thereof.
The effect of the Order of the Supreme Court of India
109. This Tribunal in the matter before it was dealing with
the Tariff Order of 2010 issued by the TRAI. The contracts,
which were entered into by and between the Broadcasters and
the DTH operators and who were concerned with the effect of
the Tariff Order before this Tribunal, indisputably were the RIO
ones.
110. When the matter went before the Supreme Court of
India, it was concerned with the appeal arising from the said
order dealing with the validity of the Tariff Order. It was not
concerned with the non-RIO contracts and/or the effect thereof.
111. It was also not concerned with the question as to
whether a DTH operator who had entered into a non-RIO
contract with a Broadcaster, having regard to the provisions
contained in the Regulations could migrate to RIO contract and if
so to what effect.
112. Construction of a judgment, it is trite, depends upon
the nature of the order as also the points involved therein. 39
113. An order/ judgment passed by a court of law, it is
trite, is not to be read as a Statute. In the event construction
thereof is required, the subject matter before the Court
concerned must be taken into consideration. For the said
purpose even the pleadings of the parties may have to be
noticed.
114. It is evident that the Supreme Court was not
concerned with a non-RIO contract. It is also apparent that so
far as the rates fixed by a Broadcaster payable by a DTH
operators is concerned, prior to coming into force the said Tariff
Order same was 50% of the non-CAS rates.
115. By reason of the Tariff Order, 2010, the same was
brought down to 35%.
116. In this case the parties did not enter into a non-RIO
contract. It was a lump sum contract. It had nothing to do with
the subscriber base. It had nothing to do with the rate fixed by
the TRAI. The interim order passed by the Supreme Court of
India fixing 42% of the rates applicable to non-CAS areas would
therefore, must be read in that context.
117. The TRAI itself later on said that the rate would be
42%. The parties were bound thereby.40
118. There is no doubt or dispute that one RIO contract
can always be replaced by the other. Moreover, the Supreme
Court was not concerned with the interpretation of the
Regulations. It was not concerned with the right of a DTH
operator and the consequent statutory obligations of this
Broadcaster in terms of the Regulation.
119. Regulations being law within the meaning of Article
13 of Constitution of India, in absence of any order passed by a
Superior Court, any person claiming a right thereunder is
entitled to invoke the jurisdiction of a competent court of law if
such right is denied to it.
120. This aspect of the matter came up for consideration
before the Supreme Court of India in Rama Narang vs. Ramesh
Narang and Ors. reported in (1995) 2 SCC 513.
121. In that case the Petitioner therein was convicted of
an offence. He preferred an appeal against the judgment of
conviction and sentence before the Delhi High Court. The High
Court passed an order staying the operation of the said
judgment and order.
122. The question which arose for consideration of the
High Court was as to whether the effect of the said order vis-avis Section 267 of the Companies Act, 1956. 41
123. The Supreme Court posed a question as to whether
by reason of the said order, the operation of Section 267 of the
Companies Act was stayed, so far as the Petitioner therein was
concerned
124. It was held that the same had not been stayed,
stating :-
―… By not making a specific reference to this
aspect of the matter, how could the appellant
have persuaded the Delhi High Court to stop
the coming into operation of Section 267 of the
Companies Act? And how could the Court have
applied its mind to this question if it‘s pointed
attention was not drawn? As we said earlier
the application seeking interim stay is wholly
silent on this point. That is why we feel that
this is a case in which the appellant indulged in
an exercise of hide and seek in obtaining the
interim stay without drawing the pointed
attention of the Delhi High Court that stay of
conviction was essential to avoid the
disqualification under Section 267 of the
Companies Act. If such a precise request was
made to the Court pointing out the
consequences likely to fall on the continuance
of the conviction order, the Court would have
applied its mind to the specific question and if
it thought that case was made out for grant of
interim stay of the conviction order, with or
without conditions attached thereto, it may
have granted an order to that effect. There can
be no doubt that the object of Section 267 of
the Companies Act is wholesome and that is to
ensure that the management of the company
is not in soiled hands. As we have pointed out
earlier the Managing Director of a company
holds a fiduciary position qua the company and
its shareholders and, therefore, different 42
considerations would flow if an order is sought
from the Appellate Court for staying the
operation of the disqualification that would
result on the application of Section 267 of the
Companies Act. Therefore, even on facts since
the appellant had not sought any order from
the Delhi High Court for stay of the
disqualification he was likely to incur under
Section 267 of the Companies Act on account
of his conviction, it cannot be inferred that the
High Court had applied its mind to this specific
aspect of the matter and had thereafter
granted a stay of the operation of the
impugned judgment. It is for that reason that
we do not find in the order of the High Court a
single reason relevant to the consequence of
the conviction under Section 267 of the
Companies Act. The interim stay granted by
the Delhi High Court must, therefore, be read
in that context and cannot extend to stay the
operation of Section 267 of the Companies
Act..‖
125. It was furthermore observed :-
―If that was his intention he was clearly
trying to hoodwink the Court by suppressing it
instead of coming clean. If he had frankly and
fairly stated in his application that he was
seeking interim stay of the conviction order to
avoid the disqualification which he was likely to
incur by virtue of the language of Section 267
of the Companies Act, the Delhi High Court
would have applied its mind to that question
and would have, for reasons to be stated in
writing, passed an appropriate order with or
without conditions. We are, therefore, satisfied
that the scope of the interim order passed by
the Delhi High Court does not extend to
staying the operation of Section 267 of the
Companies Act.‖43
126. Following the aforementioned authoritative
pronouncement of Supreme Court of India, it must be held that
this petition is maintainable.
127. The Supreme Court of India while passing the
interim order dated 18.4.2011, was concerned with an appeal
from a judgment and order of this Tribunal dealing with a Tariff
Order.
128. It was not concerned with the non-RIO contracts. It
was concerned only with the RIO contracts.
129. It is difficult to conceive that the Supreme Court, by
passing an interim order, which presumably was not done in
terms of Articles 141 and 142 of the Constitution of India, would
not be making any clear statement to injunct a party to take
benefit of the statutory provisions, had it intended to do so.
130. A person is entitled to take the benefit of law. It
cannot ordinarily be prevented thereform having regard to the
provisions of Section 41 of the Specific Relief Act, 1963. Such
prevention, in our considered view, would require an express
direction.
131. Once the RIO contract is entered into, there cannot
be any doubt or dispute that any order passed by the Supreme
Court of India shall be binding on the petitioner. This position is 44
accepted by the learned counsel appearing on behalf of the
Petitioner
133. If the Petitioner had exercised its option and it has
undertaken that it would be bound by the judgment of the
Supreme Court of India, in the event the petition is allowed, the
same would not be a fait accompli. The Petitioner would be
bound by any other or further order that may be passed by the
Supreme Court of India.
134. It is, therefore difficult to conceive as to how an
anomalous situation would arise, if the petition is allowed.
Estoppel Issue
135. Mr.Vaidyanathan, submitted that having entered into
the contract for a period of four years, it must be held that a
representation had been made by the Petitioner that at least for
that period he shall not opt out therefrom.
136. We fail to see any logic behind the said argument. It
in terms of the Regulations, the Petitioner was entitled to
migrate from a RIO contract to a non-RIO contract, the question
of any representation having been made by it would not arise.
137. If such a construction is accepted, by the same
yardstick, the Respondent having made an offer to the Petitioner 45
could not be held to have raised a contention that such an offer
made by it cannot be acted upon nor could it be heard to say
that a decree for Specific Performance of the old contract should
be granted.
138. A party to a commercial contract, save and except
the provisions of a statute and/or interpretation of an
agreement, enters into the same with its eyes wide open.
139. If the parties were aware that they were to act either
in terms of the said contract or remain outside the preview
thereof, the question of invoking the doctrine of `unjust
enrichment‘ also, as has been contended would not apply.
140. It is not for the Respondent to contend that it is
entitled to restitution or recover the expected profit from the
Petitioner.
141. Keeping in view our findings on the aforementioned
issue we may consider the Respondent‘s petition.
142. It is difficult to conceive as to how a declaration can
be made in respect of a lis at the instance of another party
thereto.
143. It is also difficult to appreciate as to how in a case of
this nature a suit for Specific Performance of Contract would be
maintainable.46
144. In the event the petition of Dish TV is allowed, the
Respondent is bound to give effect to the provisions of the
Regulations. It cannot raise any contention, contrary to such
declaration, that a further declaration be made that the first
declaration was null or void or Specific Performance of a Contract
should be granted in respect of the earlier contract.
145. We have no doubt in our mind that the said petition
is wholly misconceived.
Effect of the Interim Order
146. By our interim order dated 30.9.2011, it was
observed as under:-
―21. We agree with Mr. Ganpathy that in the
event, an interim order is passed in favour of
the Petitioner as has been prayed for, for all
intent and purport, the petition would stand
allowed.
On the other hand, if hearing of the
matter is expedited, even if it is ultimately
found that the Petitioner has made out a case
for allowing the petition, this Tribunal can
sufficiently compensate it on monetary terms.
The equities between the parties can also be
adjusted.‖
147. In P.No.398 (C)/2011 one M.A. No.318/2011 has
been filed wherein, inter-alia, the following prayer was made :-47
―(c) Permit the Petitioner to place on record
the letter dated October 31, 2011 addressed to
it by the Respondent herein;
148. Evidently, by the said letter a SMS report for the of
November, 2011 was sought to be furnished.
149. The Petitioner in its reply stated :-
i) The subscriber reports for the month of
October 2011 and November 2011 is as
under :
S.No. Bouquet/
Channels
Average
Subscriber
Numbers for the
month of
October 2011
Average
Subscriber
Numbers for
the month of
November 2011
1 Bouquet
containing
ESPN and Star
Sports
885899 913908
2 Star Cricket 900033 928047
ii) The numbers of the subscribers who
were available the channels of the
Petitioner on annual basis and having
next recharge date on or after 365 days
is as under :
S.No. Bouquet/ Channels As on 1.8.2011 As. On
1.9.2011
1 Bouquet
containing ESPN
and Star Sports
8316 654448
2 Star Cricket 15650 12209
150. The informations sought for so far as SMS reports for
the months of December 2011 and January, 2012 are concerned,
the figures have been furnished.
151. Mr.Maninder Singh, learned senior counsel would
contend that there is no dispute with regard to the said figures.
152. However, we are of the opinion that the interest of
justice would be made, if the Petitioner is declared to be entitled
to the restitution of the amount which has been paid to it for the
months of September, 2011 till date, subject, of course, to the
amount which the Respondent was entitled to on the basis of the
SMS reports. The parties, may reconcile their respective
accounts on this behalf.
Conclusion
153. For the reasons aforementioned the petition of Dish
TV is allowed. The parties are directed to enter into an
agreement with effect from 1.9.2011 which would be governed
by the modified RIO.
154. The petition filed by the ESPN Software is dismissed.49
155. Petitioner is entitled to costs.
156. Advocate‘s fee assessed at Rs.50,000/-.
(S.B. Sinha)
Chairperson
(P.K. Rastogi)
Member
April 10, 2012
`ns’/mm
