Kerala High Court
Mujeeb Rahaman vs The Telecom Regulatory Authority Of ... on 12 July, 2016
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 12TH DAY OF JULY 2016/21ST ASHADHA, 1938
WP(C).No. 22121 of 2016 (M)
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PETITIONER(S):
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1. MUJEEB RAHAMAN,
S/O HYDRU, AGED 39 YEARS, KARATHODI HOUSE,
MUNDUPARAMBU, MALAPPURAM DISTRICT,
SOYUZ CABLE NETWORK, PATHANAPURAM AND IRUMBUZHI.
2. T.P. MOHANDAS,
S/O APPUNNI, THAZHATHUPARAMBIL HOUSE,
CHENGARA, MALAPPURAM DISTRICT,
(GAZAL CABLE VISION, CHENGARA)
3. NANDANADASAN V.,
S/O KRISHNAN, VELUTHEDATH HOUSE, CHENGARA,
MALAPPURAM DISTRICT,(GAZAL CABLE VISION, ELAYOOR).
4. MOHANDAS V.,
S/O BHASKARAN V., REVATHY, KAVUNGAL,
MALAPPURAM DISTRICT,
(REVATHY CABLE NETWORK, KAVUNGAL).
5. SURESH,
S/O KRISHNAN, KALLIYATH HOUSE, MUNDUPARAMBU,
MALAPPURAM DISTRICT,
(DIVYA CABLE NETWORK, MUNDUPARAMBU).
6. RAMDAS V.,
S/O AYYAPPAN, VALAPPIL HOUSE, MALAPPURAM,
MALAPPURAM DISTRICT,
(ROHINI CABLE NETWORK, KURUVA).
7. ABDUSALAM P.,
S/O MUHAMMED P., PARAKKATTU HOUSE, MUNDAKKOD,
MALAPPURAM DISTRICT.
( LIFELINE CABLE NETWORK, MUNDAKKODE, OTHUKKUNGAL).
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WP(C).No. 22121 of 2016 (M)
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8. AHAMMED ZAKKIR,
SAT-VISION CABLE NETWORK,
MELANGADI, KONDOTTY,
MALAPPURAM DISTRICT.
9. ABDULLA A.,
SAT-VISION CABLE T.V. NETWORK,
CALICUT AIRPORT P.O.,
MALAPPURAM DISTRICT.
BY ADVS.SRI.BABU S. NAIR
SMT.SMITHA BABU
RESPONDENT(S):
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1. THE TELECOM REGULATORY AUTHORITY OF INDIA (TRAI),
REGIONAL OFFICE, GROUND FLOOR,
TELEPHONE HOUSE, RAJ BHAVAN ROAD,
BANGALORE, REP. BY ITS DIRECTOR, PIN-560 001.
2. THE DISTRICT COLLECTOR,
MALAPPURAM (NODAL OFFICER),
THE TELECOM REGULATORY AUTHORITY OF INDIA,
MALAPPURAM DISTRICT, PIN-676 505.
3. ASIANET SATELLITE COMMUNICATIONS LTD.,
CORPORATE OFFICE, 2A, 2ND FLOOR,
LEELA INFOPARK,TECHO PARK, KAZHAKKOTTAM,
THIRUVANANTHAPURAM,
REP. BY ITS CHIEF EXECUTIVE OFFICER,
PIN-695 582.
4. THE BUSINESS DEVELOPMENT MANAGER,
ASIANET SATELLITE COMMUNICATIONS LTD.,
MALAPPURAM, PIN-676 505.
R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
SRI.JAISHANKAR V.NAIR, CGC
R2 BY GOVERNMENT PLEADER SRI.ARUNKUMAR M.K.
R BY SRI.SAJI VARGHESE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01-07-2016 THE COURT ON 12-07-2016, DELIVERED THE
FOLLOWING:
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WP(C).No. 22121 of 2016 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE 1ST RESPONDENT
DATED, 19.8.2015.
P2 TRUE COPY OF THE LETTER OF UNDERSTANDING DATED, 10.6.2013
ISSUED BY THE 4TH RESPONDENT.
P3 TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT TO THE
1ST RESPONDENT TO THE 1ST PETITIONER DATED, 22.6.2015.
P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
2ND PETITIONER ON BEHALF OF THE CABLE T.V. OPERATORS IN
MALAPPURAM DISTRICT, DATED, NIL.
RESPONDENT(S)' EXHIBITS:
NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
P.B.SURESH KUMAR, J.
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WP(C).No.22121 of 2016-M.
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Dated this the 12th day of July, 2016.
J U D G M E N T
The petitioners are local cable TV operators ('LCO's for short) in Malappuram district, supplying T.V. signals to the consumers of various channels, which are provided by the third respondent, a Multi System Operator ('MSO' for short). The case set up by the petitioners in the writ petition is that as per the provisions contained in the Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) Regulations ('the Regulations' for short), the MSOs like the third respondent are bound to enter into a written interconnection agreement with the LCOs for providing TV signals to them on lines of the model interconnection agreement set out in Schedule IV to the Regulations by mutually agreeing on clauses 10, 11 and 12 of the said agreement. The model interconnection agreement set out in Schedule IV of the Regulations contains clauses for the charges payable by the LCOs WP(C).No.22121/2016-M. 2 to the MSOs. According to the petitioners, the third respondent is not entering into interconnection agreement with them and others and without doing so, they are dictating terms for the revenue settlement. Ext.P3 letter issued by the third respondent to the first petitioner is relied on by the petitioners to substantiate the said case set up by them in the writ petition. As per Ext.P3, the third respondent has directed the petitioners to pay a sum of Rs.30/- per set top box per month and directed the first petitioner to pay a sum of Rs.1,11,500/- including service tax. According to the petitioners, the conduct of the third respondent in insisting payments without entering into written interconnection agreement with them is illegal. The petitioners, therefore, seek the following reliefs:
(i) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the first and second respondents to immediately direct the third and fourth respondents to execute agreements as provided in schedule IV to Regulation 3 of 2016 under the Telecom Regulatory Authority of India Act, 1997, forthwith;
(ii) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the third and fourth respondents not to disrupt the service or WP(C).No.22121/2016-M. 3 disconnect the providing of signals to the petitioners, on the non-payment of demands under Exhibit P3 and connected demands made to the petitioners;
(iii) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the first and second respondents to immediately direct the third and fourth respondents not to make any further demands on the revised rates in the absence of an agreement between MSO and LCO, as provided in Schedule IV to Regulation 3 of 2016 under the Telecom Regulatory Authority of India Act.
2. Heard the learned counsel for the petitioners as also the learned Standing Counsel for the third respondent.
3. The learned Standing Counsel for the third respondent pointed out that ever since the introduction of the Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) (Seventh Amendment) Regulations, 2016, the third respondent has been requiring the petitioners and others to execute interconnection agreement and none of them have turned up to execute the interconnection agreement as provided for under the Regulations. According to the learned Standing Counsel, in the absence of any interconnection agreement, the revenue WP(C).No.22121/2016-M. 4 settlement has to be in accordance with the standard interconnection agreement provided in Schedule V of the Regulations and the invoices/bills raised by the third respondent is far less than the revenue settlement provided for in the standard interconnection agreement specified in Schedule V of the Regulations.
4. I have examined the contentions of the parties. Sub-regulation 13 of Regulation 5 of the Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) Regulations, as substituted by the Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) (Seventh Amendment) Regulations, 2016, reads thus:
"(13) The multi system operator shall enter into a written interconnection agreement with the local cable operator for providing signals of TV channels to the local cable operator, on lines of the model interconnection agreement as set out in the Schedule IV of these regulations, by mutually agreeing on the clauses 10, 11 and 12 of the said agreement:
Provided that the multi system operator and the local cable operator, without altering or deleting any clause of model WP(C).No.22121/2016-M. 5 interconnection agreement, may add, through mutual agreement, clauses to the model interconnection agreement, provided that no such addition shall have the effect of diluting any of the clauses as laid down in the model interconnection agreement:
Provided further that in case the multi system operator and the local cable operator fail to enter into interconnection agreement as provided above in this sub-regulation, the multi system operator and the local cable operator shall enter into standard interconnection agreement as specified in Schedule-V of these regulations.
Explanation: for removal of doubts it is clarified that in the event of any conflict between the terms and conditions of the prescribed model interconnection agreement and new terms and conditions added through mutual agreement by the parties, the terms and conditions of the prescribed model interconnection agreement shall prevail."
As rightly pointed out by the learned Standing Counsel for the third respondent, the second proviso to sub-regulation 13 categorically provides that in case the MSO and the LCO fail to enter into interconnection agreement as provided above in this sub-regulation, the MSO and the LCO shall enter into standard interconnection agreement as specified in Schedule V of the Regulations. The standard interconnection agreement as WP(C).No.22121/2016-M. 6 provided for in Schedule V deals with the revenue settlement between MSO and LCO. Clause 12.1 of the standard interconnection agreement as contained in Schedule-V to the Regulations reads thus:
"12.1 The revenue settlement between the MSO and the LCO shall be in the following manner:-
(c) the charges collected from the subscription of channels of Basic Service Tier, free to air channel and bouquet of free to air channels shall be shared in the ratio of 55:45 between the MSO and the LCO respectively; and
(d) the charges collected from the subscription of channels or bouquet of channels or channels and bouquet of channels other than those specified under clause (a) shall be shared in the ratio of 65:35 between the MSO and the LCO respectively."
The fact that the invoices/bills raised by the third respondent is far less than the revenue settlement provided for in the standard interconnection agreement is not in dispute. In the circumstances, it cannot be said that the demand raised by the third respondent for providing signals to the petitioners is illegal or unjustified. However, having regard to the facts and WP(C).No.22121/2016-M. 7 circumstances of the case, especially having regard to the fact that the petitioners have been availing signals from the third respondent for their customers for the last several years on mutually agreed terms, I deem it appropriate to grant time to the petitioners to enter into interconnection agreement with the third respondent.
In the result, the writ petition is disposed of granting thirty days time from today to the petitioners to enter into interconnection agreement with the third respondent for availing signals. Needless to say that supply of signals to the petitioners shall not be disconnected during the said period. If the supply of signals to the petitioners has already been disconnected after the institution of the writ petition, the same shall be restored and continued till the said period. It is made clear that if the petitioners do not enter into the interconnection agreement with the third respondent as directed above, the third respondent will be at liberty to disconnect the supply of signals to the petitioners.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Kvs/-
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