Delhi High Court
M/S.Novex Communications Pvt.Ltd. vs Telecom Regulatory Authority Of India & ... on 4 November, 2008
Author: G.S. Sistani
Bench: G.S.Sistani
IN THE HIGH COURT OF DELHI AT NEW DELHI
1. W.P. (C) No. 7052/2008
Judgment delivered on November 4th,2008
# M/s.Novex Communications Pvt. Ltd. .... Petitioner
Through : Mr.Jaya Savla, Advocate
Versus
$ Telecom Regulatory Authority
of India & Ors. . ... Respondents
^ Through : Mr.Saket Singh, Advocate for
respondent No.1
Mr.Ayusha Kumar, Advocate
for respondent No.2
2. W.P. (C) No. 7055/2008
# M/s.Novex Communications Pvt. Ltd. .... Petitioner
Through : Mr.Jaya Savla, Advocate
Versus
$ Telecom Regulatory Authority
of India & Ors. .... Respondents
^ Through : Mr.Saket Singh, Advocate for
respondent No.1
Mr.Ayusha Kumar, Advocate
for respondent No.2
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether reporters of local papers may be allowed to see the
Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
G.S. SISTANI, J.
1. The present petitions are directed against the order dated 27.8.2008 passed by the Telecom Disputes Settlement and Appellate Tribunal (hereinafter referred to as "TDSAT"), by virtue of which the WP(C)No.7052-08 Page 1 of 16 application of the present petitioner for being impleaded as a party in the appeal was dismissed. Counsel for the parties submit that both the writ petitions be disposed of by a common order as the same are based on similar facts. Both the petitions have been heard together and thus are being disposed of by this common order.
2. The petitioner is the authorized distributor appointed by the broadcasters, respondents 4,5,6 & 7 (Star India Private Limited, ESPN Software India Pvt. Ltd, Set Discovery Pvt. Ltd. and Zee Turner Ltd., respectively), w.e.f April, 2004 to distribute various channels which are "Pay Channels", to hotels and commercial establishments in India by the broadcasters. The Telecommunications [Broadcasting and Cable] Services Tariff Order dated 15th January, 2004 passed by the Telecom Regulatory Authority of India, in exercise of powers conferred upon it under Section 11 of the Telecom Regulatory Authority of India Act, 1997, inter alia, provided that charges payable by cable subscribers to cable operators, prevalent as on 26th December, 2003 shall be the ceiling with respect to both from free- to-air and pay channels until final determination by Telecom Regulatory Authority of India on various issues concerning charges.
3. By a public notice dated 26th May, 2004, which was issued by the broadcasters, owners of various hotels and other commercial establishments were informed that no local cable operator is authorized to transmit signals of the "pay channels" to the said WP(C)No.7052-08 Page 2 of 16 commercial establishments and the said commercial establishments should refrain and desist from receiving, redistributing and displaying the said channels from the cable operators. The Hotel Association of India and Federation of Hotel and Restaurant Association of India, claiming themselves to represent hotels and restaurants in Western India, filed petitions being Petition No.32 ( C ) of 2005 and Petition No.80 ( C ) of 2005, respectively before the Tribunal. The petitioner was arrayed as respondent No.6 in the said Petition No.80 ( C ) of 2005. The petitioner is stated to have filed a detailed reply to the petition and was also represented by their Advocates before the Tribunal.
4. On 17th January, 2006, Petition No.80( C ) of 2005 was dismissed by the Tribunal on the ground that Members of the Association are not 'consumers' and are not entitled to maintain the petition before the Tribunal. In April, 2006, Hotel Association of India ( respondent No.2 in WP ( C ) No.7052/2008) and Federation of Hotel and Restaurant Association of India (respondent No.2 in WP ( C ) No.7055/2008), filed an appeal before the Supreme Court of India challenging the order dated 17th January, 2006. The petitioner was also arrayed as a respondent in the said Appeal No.2061/2006. On 19th October, 2006, the Supreme Court of India directed the Telecom Regulatory Authority of India to carry out the process of framing the tariff. In pursuance of the directions passed by the Supreme Court of India, WP(C)No.7052-08 Page 3 of 16 Telecom Regulatory Authority of India commenced the consultation process and a draft tariff amendment order was placed on the website of Telecom Regulatory Authority of India on 2nd November, 2006 seeking comments of the stakeholders. Separate meeting of the stakeholders was held on 9th November, 2006. Petitioner also gave its views. By a notification dated 21st November, 2006, "The Telecommunication [Broadcasting and Cable] Services [Third] (CAS areas) Tariff [First Amendment] Order, 2006 [7 of 2006]" was passed. By the said tariff order, it was held that there will not be any fixation of tariff for the commercial subscriber like hotels with three star and above grading and it was left to be determined by mutual negotiations.
5. Against the notification of 21st November, 2006, the respondent No.1 preferred an appeal under Section 14-B of the Telecom Regulatory Authority of India Act, 1997 before the TDSAT being appeal No.17 ( C ) of 2006. The petitioner was not made a party in this appeal although the petitioner had filed a caveat. The petitioner moved an application being MA No.6/2007 in W.P ( C ) No.7052/2008 and MA No. 7/2007 and W.P ( C ) No.7055/2008, for being impleaded as a party to the appeal. However, the said application was dismissed by the Tribunal on 27th August, 2008.
6. It is the case of the petitioner that the petitioner being a distributor of the broadcasters, is a proper and necessary party. Counsel for the WP(C)No.7052-08 Page 4 of 16 petitioner further submits that throughout the proceedings the petitioner was a party and duly represented and thus they are proper parties. Counsel has drawn the attention of the court to the fact that the respondents had filed petition No.80 ( C ) of 2005 before the Tribunal. The petitioner was arrayed as respondent No.6. In January, 2006, the Tribunal had dismissed the petition of the respondent herein which was the subject matter of challenge before the Supreme Court of India. The petitioner was made a party before the Supreme Court and thereafter pursuant to directions of the Apex Court, at the stage of formalizing draft tariff, the petitioner was associated by the TRAI as a stakeholder. In fact, various suggestions made by the petitioner were noticed in the minutes which were held by the TRAI.
7. Counsel for the petitioner has also drawn the attention of the court to Clause 8 of the agreement between the petitioner and the broadcasters to show that the petitioner is an independent contractor and nothing in the agreement would either create a joint venture or a principal-agent relationship. Counsel for the petitioner has also strongly urged before this Court that the present appeal pending before the TDSAT is in fact continuation of the proceeding which was initiated by respondent No.2 being No.80(C)05. Since the present petitioner was a party in those proceedings, there is no WP(C)No.7052-08 Page 5 of 16 reason why petitioner should not be allowed to participate in the appeal.
8. It is the case of the petitioner that the petitioner had actively participated in the consultation process and the name of the petitioner was shown in the list of stakeholders. It is submitted that the petitioner is the main distributor of the broadcasters and the distributor is authorized to negotiate and execute subscription agreements with various hotels. It is contended that the rights of the petitioner are vitally affected. In response to the objection raised by respondents No.2 and 3 ( EIH Ltd. in WP ( C ) No.7052/2008 and D.Connaught Prominent Hotels Ltd. in W.P ( C ) No.7055/2008), with regard to the jurisdiction of this Court on the ground that the order dated 27.08.2008 is a final order, counsel for the petitioner has relied upon a decision of the Supreme Court in the case of MADHU LIMAYE VS. THE STATE OF MAHARASHTRA reported in {1978} 1 SCR 749 wherein the Supreme Court had the occasion to decide the scope of Sections 397 (2) and 482 Cr.P.C - whether the bar in Section 397 (2) refers to the revisional powers of the High Court in all cases or only refers to revisional powers against interlocutory orders. It was observed in the said decision as under:-
.......... ......... ..............
......... ........ .............
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WP(C)No.7052-08 Page 6 of 16
"Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In volume 22 of the third edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606:-
.............a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of two words must therefore be considered separately in relation to the particular purpose for which it is required."
In para 1607 it is said :
"In general a judgment or order which determines the principal matter in question is termed "final".
In para 1608 at pages 744 and 745 we find the words:-
"An order which does not deal with the final rights of the parties , but either (1) is made before judgment, and gives a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed "interlocutory". An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals."
9. Respondents 4 to 7, the broadcasters have supported the case of the petitioner and pleaded that the application of the petitioner should be allowed. However, petition is opposed by respondents 2 and 3.
10. The first submission of counsel for respondents 2 and 3 is that the present petition is not maintainable in view of the fact that the order dated 27.8.2008 is a final order, against which an appeal would lie only before the Supreme Court of India. In support of this submission, counsel for the respondent relies upon a decision of the WP(C)No.7052-08 Page 7 of 16 Supreme Court in AMAR NATH AND OTHERS vs. STATE OF HARYANA AND ANOTHER reported in (1977) 4 SCC 137 wherein it was held that the High Court had no power to revise interlocutory orders while dealing with a case under Section 397 and 482 of the Cr.P.C. Counsel has drawn the attention of the Court to para 6 in support of his argument that while deciding the application of the petitioner for impleadment the TDSAT has in fact finally adjudicated the rights of the petitioner. Relevant portion of Para 6 is reproduced below:-
"6. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order."
11. Counsel for the respondents 2 & 3 further submits that it is not in dispute that the petitioner is a distributor of the broadcasters. Thus, petitioner cannot have better rights than the distributor themselves, who are party in the appeal. While not disputing that the petitioner was arrayed as a party by the respondents in Petition No.80 (C ) of 2005 before the Tribunal the petitioner was a party before the Supreme Court of India. However, it is submitted that the Supreme Court had, while disposing of the matter, passed a direction, according to which the TRAI was directed to carry out the process of framing the tariff while exercising its jurisdiction under Section 11 of the Act independently and without relying upon or on the basis of any observations made by the TDSAT. According to the respondents, WP(C)No.7052-08 Page 8 of 16 the role of the petitioner herein was limited to this point alone in view of the fact that the respondents had impleaded the petitioner as a party before the Tribunal on account of the fact that they were directly aggrieved by the acts of the petitioner herein. The present proceedings, which are pending before the TDSAT, arise out of independent proceedings which were initiated under Section 11of the Act. Thus, there was no continuity between the earlier proceedings and the present proceedings which have arisen on account of the notification dated 21st November, 2006.
12. I have heard the learned counsel for the parties, who have taken me through the records of this case. The arguments of the petitioner can be summarized as under:-
(i) Petitioner was a party in the proceedings initiated by the respondents [no.80(C) 2005], challenging the proposed action of the petitioner to disconnect supply of signals and the respondents have themselves impleaded the petitioner as a party.
(ii) Aggrieved by the order dated 17.1.2006, respondent filed an appeal before the Supreme Court of India, where the petitioner was a party.
(iii) After the directions passed by the Supreme Court of India, the petitioner in the proceedings before the TRAI participated as a stakeholder, the present proceeding before the TDSAT are in continuation of the earlier proceeding, thus, he should be impleaded as a party in the present proceedings.WP(C)No.7052-08 Page 9 of 16
(iv) The petitioner is an independent contractor and being an independent contractor, he is the person who is in the field and the person duly authorized to negotiate and execute subscription agreements.
(v) The petitioner has lodged various FIRs and initiated various complaints against cable operators for violation of copy right and theft and it is the petitioner who is being negotiating with the respondents for conducting day today business.
13. The argument of counsel for respondents No.2 and 3 can be summarized as under:
(i) Present petition is not maintainable as order dated 27.8.2008 is a final order against which appeal lies only before the Supreme Court of India.
(ii) The present appeal filed by respondent No.2 and 3 before the TDSAT is not in continuation of earlier proceedings.
(iii) In the earlier proceedings filed by the respondent the petitioner was made a party only because petition No.80(C) 05 was directed against the illegal acts of the petitioner herein.
(iv) The petitioner is a distributor of the broadcasters, who are parties in the appeal and the rights of the petitioner are safeguarded by the distributors.
14. It may be noticed that respondent nos.4 to 7 being the broadcasters have supported the case of the petitioner. WP(C)No.7052-08 Page 10 of 16
15. At the outset, I am unable to agree with the counsel for the respondent Nos.2 & 3 that the order dismissing the application for impleadment is a final order and that the appeal would lie to the Supreme Court of India. The TDSAT is ceased of the matter and a final adjudication with respect to the lis between the parties is yet to be decided. The petitioner had moved an application for being impleaded as a party. While deciding this application, the Tribunal has not decided on any of the rights of the petitioner herein, pertaining to the subject matter of the appeal.
16. I am afraid the respondents have not correctly interpreted the judgment in re: AMAR NATH AND OTHERS vs. STATE OF HARYANA AND ANOTHER (supra). The rights which have been decided in this case pertain only to procedural matter and although finality has been attained with respect to the application of impleadment, which would be the case in every application, be it an application for summoning of a witness or amendment; discovery or production of documents. What is to be seen is whether while deciding such an application the Court has decided the lis between the parties and while deciding such an application, the substantial rights qua the main subject matter stand adjudicated. In Webster's New World Dictionary "Interlocutory" has been defined as an order WP(C)No.7052-08 Page 11 of 16 other than final decision. In the facts of this case, it cannot be said that final rights of the petitioner stand decided.
17. It is not in dispute that the present petitioner was arrayed as a respondent, in the proceedings bearing No.80(C)05. It is also not in dispute that in the appeal filed by the respondent no.2 and 3 before the Supreme Court of India against the order passed by TDSAT the present petitioner was made a party. At this stage, the Supreme Court of India passed an order dated 19.10.2006. It would be useful to reproduce the operative portion of the order dated 19.10.2006, which reads as under:
"Before us Mr.Sanjay Kapur, learned counsel appearing for TRAI submitted that TRAI has already issued consultation papers and processes for framing a tariff is likely to be over within one month from date.
We in modification of our said order dated 28.4.2006 direct the TRAI to carry out the processes for framing the tariff. While doing so, it must exercise its jurisdiction under section 11 of the Act independently and not relying on or on the basis of any observation made by the TDSAT to this effect. It goes without saying that all the procedures required for framing the said tariff shall be complied with."
18. Pursuant to the order dated 19.10.2006 the TRAI carried out the process of framing the tariff. During the course of hearing counsel for the respondent nos.2 and 3 handed over a copy of the appeal filed by them before the TDSAT to show that the scope of the appeal is confined only to the challenge of the Tariff order dated 21.11.2006 issued by the TRAI. Taking into WP(C)No.7052-08 Page 12 of 16 consideration the order of the Supreme Court of India dated 19.10.2006 wherein a direction was issued to TRAI to carry out the process of framing the tariff in exercise of its jurisdiction under Section 11 of the Act, independently and not relying on or on the basis of any observation made by the TDSAT and also taking into consideration the grounds of appeal where the challenge is only to the Tariff order dated 21.11.2006, it cannot be said that the present appeal is in continuation of the proceeding No.80(C) 05. The petitioner is admittedly an authorized distributor appointed by the broadcasters who are parties to the appeal. All rights of the petitioner flow from the distributorship agreement entered into between the petitioner and broadcasters. Even if it is taken into consideration that the petitioner is in the field and duly authorised to execute agreements, etc. yet all rights in favour of the petitioner flow from the agreement with the broadcasters, and the broadcasters are party to the proceedings. It cannot be said that the petitioner has an independent or separate interest in the appeal. Merely by taking part in the proceedings as a stakeholder by itself is not a sufficient ground to implead the petitioner as a party in the appeal. The petitioner is no doubt dominus litis and ordinarily the Court cannot add a party against the wishes of the petitioner. The Court may, however, WP(C)No.7052-08 Page 13 of 16 at any stage direct addition of parties provided the presence of such a person is necessary to enable the Court to effectively and completely adjudicate upon the matter.
19. While deciding an application for impleadment the Court must take into consideration that only a necessary or proper party may be added as a party without whom no order can be made effective.
20. To add a party, a person must have a direct interest in the subject matter in the proceedings and such dispute in the proceedings cannot be finally and effectively adjudicated without the person or to put it differently, application of a person for impleadment is liable to be allowed whose interest is liable to be effected by the order of the Court in the proceedings where he is not a party. Applicant must fulfill that he is either a necessary party or proper party and his addition as a party is necessary for the adjudication in the proceedings.
21. This Court cannot lose track of the settled law with regard to exercise of extraordinary jurisdiction which is distinct from appellate jurisdiction. It would be useful to reproduce relevant paras of B.K. Muniraju V. State of Karnataka & Others, reported at (2008) 4 Supreme Court Cases 451:-
22. It is settled law that a writ of certitorari can only be issued in exercise of extraordinary jurisdiction which is different from appellate jurisdiction. The WP(C)No.7052-08 Page 14 of 16 writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals or authorities in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. In regard to a finding of fact recorded by an inferior tribunal or authority, a writ of certiorari can be issued only if in recording such a finding, the tribunal/authority has acted on evidence which is legally inadmissible, or has refused to admit an admissible evidence, or if the finding is not supported by an evidence at all, because in such cases the error amounts to an error of law. It is needless to mention that a pure error of fact, however grave, cannot be corrected by a writ.
23. It is useful to refer to the decision of this Court in Surya Dev Rai V. Ram Chander Rai, wherein, in para 38, it was held as under: (SCC p.695) "38. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice."
24. It is clear that whether it is a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or WP(C)No.7052-08 Page 15 of 16 supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
22. The interest of the petitioner is fully secured in view of the broadcasters being party in the appeal and thus no prejudice would be caused to the rights of the petitioner. Petitioner and respondent no.4-7 have not been able to show that there is any conflict of interest between them. By allowing the present petition it would also lead to delay in final hearing of the matter, which is fixed for hearing on 6.11.2008.
23. For the reasons aforestated and taking into account the fact that there is no infirmity in the impugned order, the petitioner is neither a necessary nor a proper party. Petition is dismissed. No order as to costs.
G.S.SISTANI ( JUDGE ) November 4th , 2008 'ssn' WP(C)No.7052-08 Page 16 of 16