Karnataka High Court
M/S Karnataka State Cable Tv Operators ... vs Union Of India on 16 April, 2013
Author: S.Abdul Nazeer
Bench: S. Abdul Nazeer
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF APRIL 2013
BEFORE
THE HON'BLE MR.JUSTICE S. ABDUL NAZEER
WRIT PETITION NOS.14946-14954/2013
C/W W.P.NOS.3775/2013, 15651/2013
& 16079-16080/2013 (GM-RES)
W.P.NOS.14946-14954/2013
Between:
1 M/s Karnataka State Cable TV Operators Association (R),
No.39, 2nd Floor, Surveyor Street,
Near Lalbagh West Gate, Basavanagudi,
Behind Kaveri Petrol Bunk,
Bangalore - 560 004,
Reptd. By its Secretary.
2 Sri N. Devendra,
S/o late Sri M.Narayanaswamy,
Aged about 46 years,
No.167, Milk Colony,
Malleswaram West,
Bangalore - 560 055.
2
3 Smt.Shobha Kumar,
W/o Sri B.Kumar,
Aged about 50 years,
R/a No.1451A, 16th Main, BSK I Stage,
2nd Block, Bangalore - 560 050.
4 Sri N. Maruthi,
S/o late Sri Narayana,
Aged about 49 years,
No.1357, 5th Main Road, E Block,
II Stage, Rajajinagar,
Bangalore - 560 010.
5 Sri V.S.Somashekar,
S/o Sri V.R.Shankar Narayan,
Aged about 39 years,
No.324, 12th B Cross, 6th Main,
West of Chord Road, II Stage,
Mahalakshmipura,
Bangalore - 560 086.
6 Sri K.Lokesh,
S/o Sri Kenchappa C.,
Aged about 33 years,
No.17, Pattandur Agrahara,
Whitefield Post,
Bangalore - 560 066.
7 Sri B.Krishnamurthy,
S/o Sri Byrappa,
Aged about 38 years,
Nagondanahalli, Immad Halli Post,
Bangalore - 560066.
3
8 Sri S. Shanth Kumar,
S/o Sri Shombiah,
Aged about 38 years,
No.422/2, Madhura Nagar,
I Stage, Varthur Post,
Bangalore - 560 087.
9 Sri P. Mohan Raju,
S/o Sri Peddanna,
Aged about 47 years,
No.201, 11th Cross, V.S.Garden,
JJR Nagar, Bangalore - 560 026. .... Petitioners.
(By Sri S.Sreevatsa, Sr. Adv. For Sri S.Subramanya,
Upasana A/S, Advs.)
And:
1 Union of India,
Ministry of Communications and
Information Technology,
Department of Telecommunications,
Sanchar Bhavan, 20, Ashoka Road,
New Delhi - 110 001,
Reptd.by its Principal Secretary.
2 Union of India,
Ministry of Information and Broadcasting,
New Delhi - 110 115,
Reptd. By its Principal Secretary.
4
3 The Telecommunications Regulatory Authority of India,
Mahanagar Doorasanchar Bhavan,
Next to Zakir Hussain College,
Jawaharlal Nehru Marg, Old Minto Road,
New Delhi - 110 002,
Reptd. By its Chairman/Authorised Signatory.
4 The Government of Karnataka,
Department of Revenue,
M.S.Bldg., Banglore - 560 001,
Reptd. By its Principal Secretary.
5 The Asst. Commissioner/Nodal Officer for
Implementation of Digital Addressable Cable TV Systems,
Kandaya Bhavan,
Bangalore - 560 001.
6 M/s YOU Telecom,
Scotts Annex, 4th Floor, No.30,
Infantry Road, Bangalore - 1,
Reptd. By its Managing Director.
7 M/s INCABLE (Indus IND) Media Pvt. Ltd.,
No.99/2, New Raja Building,
WR Road, Bangalore - 2,
Reptd. By its Managing Director.
8 M/s Hathway Cable and Datacom Pvt. Ltd.,
73, St.John's Road, Shri Complex,
4th Floor, Banglaore - 36,
Reptd. By its Managing Director.
5
9 M/s ATRIA Convergence Technologies,
99A/113A, Manorayana Palya,
RT Nagar, Bangalore - 560 032,
Reptd. By its Managing Director.
10 M/s AMOG Broadband Services Pvt. Ltd.,
Aragini Bhawan, 5th Floor, Abhimani Bldg.,
Dr.Rajkumar Road, Rajajinagar,
Bangalore - 560 010,
Reptd. By its Managing Director.
11 M/s DEN Infoking Channel Entertainers Pvt. Ltd.,
No.507, 2nd Floor, East End Main Road,
9th Block, Jayanagar, Bangalore - 560 069,
Reptd. By its Managing Director.
12 M/s Den Networks Ltd.,
BDA Industrial Site No.7, 3rd Floor,
17th Cross, KR Road, Near MTR Foods,
Banashankari II Stage, Bangalore - 70,
Reptd. By its Managing Director.
13 M/s SITI Cable Network Ltd.,
United Mansions, 4th Floor,
No.39, MG Road, Bangalore - 1,
Reptd. By its Managing Director.
14 M/s Kaizen Digital Networks,
No.169/10, Gurukrupa, 12th Cross,
Mahalakshmi Layout,
Bangalore - 560 086,
Reptd. By its Managing Director.
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15 Indian Broadcasting Foundation,
A Society registered under the
Societies Registration Act, 1860,
having its office at No.304, 3rd Floor,
Ansal Plaza, Khelgaon Marg,
Andrewsganj, New Delhi - 110 049,
Reptd. By its Deputy Director,
Mr.Radhakrishnan. .... Respondents.
(By Sri Kalyan Basavaraj, ASG for R1 to R3
Sri R.B.Sathyanarayana Singh, HCGP for R4 and R5
Sri K.G.Raghavan, Sr. Adv. For Sri S.R.Shivaprakash, Adv.
For R6, R8 and R13
Sri Vachan B., Adv. For Vachan & A/S, for R7, R9 and R14
Sri Ravi B. Naik, Sr. Adv. For Sri Abhishek Malhotra, Adv.
For R15
R10, R11, R12 are served)
W.P.NO.3775/2013
Between:
The Mysore District Cable Operators Association,
A Society registered under the
Societies Registration Act,
Reptd. By its authorized representative
and President, Sri C.V.Parthasarathy,
S/o late Venkataramana Shetty,
Aged about 49 years, No.3833,
Omkar Kayyam Road, Tilak Nagar,
Mandi Mohalla, Mysore - 570 021. .... Petitioner.
(By Sri L.M.Chidanandayya, Adv.)
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And:
1 Union of India,
Reptd. By its Secretary,
Ministry of Information and Broadcasting,
Government of India,
Shastri Bhavan, New Delhi - 110 001.
2 The Telecom Regulatory Authority of India,
Reptd. By its Chairman,
Mahanagar Doorasanchar Bhawan,
Jawahar Lal Nehru Marg,
New Delhi - 110 002. .... Respondents.
(By Sri S. Kalyan Basavaraj, ASG)
W.P.NO.15651/2013
Between:
M/s Canara Star Communications Pvt. Ltd.,
Having its registered office at 2nd Floor,
Vamanashram Bldg., GHS Cross Road,
Mangalore - 575 001,
reptd. By its Director, Mr.Arvind Kumar,
Aged abut 40 years. .... Petitioner.
(By Sri D.N.Nanjunda Reddy, Sr. Adv. For
Sri Zulfikir Kumar Shafi & S.LN Reddy, Advs.)
8
And:
1 Union of India,
Ministry of Communication and Information
Technology, Department of Telecommunications,
Sanchar Bhavan, 20, Ashoka Road,
New Delhi - 110 001,
Reptd. By its Principal Secretary.
2 Union of India,
Ministry of Information and Broadcasting,
New Delhi - 110 115,
Reptd. By its Principal Secretary.
3 The Telecommunications Regulatory Authority of India,
Mahanagara Doorasanchar Bhavan,
Next to Zakir Hussain College,
Jawaharlal Nehru Marg,
Old Minto Road, New Delhi - 110 002,
Reptd. By Chairman/Authorised Signatory.
4 The Government of Karnataka,
Department of Revenue,
M.S.Bldg., Bangalore - 560 001,
Reptd. By its Principal Secretary,
Bangalore City.
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5 The Assistant Commissioner/Nodal Officer
for Implementation of Digital
Addressable Cable TV Systems,
Kandaya Bhavan,
Bangalore - 560 001. .... Respondents.
(By Sri Kalyan Basavaraj, ASG for R1 to R3
Sri R.B.Sathyanarayana Singh, HCGP for R4 and R5)
W.P.NOS.16079-16080/2013
Between:
1 Mrs.B.Lalitha,
Aged about 66 years,
W/o B.Narasimhamurthy,
R/a No.176, Sharada Colony,
Basaveshwaranagar,
Bangalore - 560 079.
2 Sri P.N.Girish,
Aged about 46 years,
S/o Mr.P.Nagendrappa,
R/a No.131, 3rd Stage, 3rd Block,
3rd Main, Basaveshwaranagar,
Bangalore - 560 079. .... Petitioners.
(By Smt. Nalina Mayegowda, Adv.)
10
And:
1 Union of India,
Ministry of Communication and
Information Technology,
Department of Telecommunications,
Sanchar Bhavan, 20, Ashoka Road,
New Delhi - 110 001, Reptd. By its Secretary.
2 Union of India,
Ministry of Information and Broadcasting,
New Delhi - 110 115,
Reptd. By its Secretary.
3 The Government of Karnataka,
Department of Revenue,
M.S.Bldg., Bangalore - 560 001,
Reptd. By its Principal Secretary.
4 The Assistant Commissioner/Nodal Officer,
for Implementation of Digital Addressable
Cable TV Systems, Kandaya Bhavan,
Bangalore - 560 001. .... Respondents.
(By Sri Kalyan Basavaraj, ASG for R1 and R2
Sri R.B.Satyanarayana Singh, HCGP for R3 and R4)
---
Writ Petition Nos.14946 to 14954/2013 are filed under
Articles 226 & 227 of the Constitution of India, praying to quash
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the notification of the second respondent dated 11.11.2011 at
Annexure 'D', etc.
Writ Petition No.3775/2013 is filed under Articles 226 &
227 of the Constitution of India, praying to quash the
communication at Annexure 'A' dated 11.11.2011 passed by the
first respondent, etc.
Writ Petition No.15651/2013 is filed under Articles 226 &
227 of the Constitution of India, praying to quash the notification
dated 11.11.2011 at Annexure 'B', etc.
Writ Petition Nos.16079-16080/2013 are filed under Articles
226 & 227 of the Constitution of India, praying to quash the
notification of the second respondent dated 11.11.2011 at Annexure
'C', etc.
These Writ Petitions coming on for Further Orders this day,
the Court passed the following:
ORDER
Since common questions of fact and law are involved in all these writ petitions, they are clubbed together, heard and disposed of by this common order.
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2. In all these cases, the petitioners have challenged the validity of the notification dated 11.11.2011 bearing S.O.No.2534(E) issued under sub-section (1) of Section 4-A of the Cable Television Networks (Regulation) Act, 1995 as amended by the Cable Television Networks (Regulation) Amendment Ordinance, 2011 whereby the Central Government has notified that it shall be obligatory for every Cable Operator to transmit or retransmit programmes of any channel in an encrypted form through a digital addressable system in such city, town or area as specified in column (2) of the table to the said notification in respect of corresponding State or Union territory as specified in column (3) thereof with effect from such date as specified in column (4) of the table. The period specified for transmission of the programmes through digital addressable system in Bangalore city and Mysore is 31.3.2013.
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3. The petitioners in W.P.Nos.14946-14954/2013 and W.P.Nos.16079-16080/2013 are the Local Cable Operators ('LCO' for short) operating in the City of Bangalore. The petitioner in W.P.No.3775/2013 is the Mysore District Cable Operators Association. Its members are the LCOs operating at Mysore city. The petitioner in W.P.No.15651/2013 is a Multi System Operator ('MSO' for short).
4. The contention of the LCOs is that while providing cable TV connections at every place of their customers, they are incurring expenditure in excess of Rs.13,000/- per connection towards procuring necessary cable and other equipment without exposing their customers to any financial burden. They are totally dependent on the monthly subscription charges paid by their customers for their livelihood and out of the monthly subscription 14 charges received by them, apart from maintaining their families and supporting staffs, they have to incur substantial expenditure towards ensuring proper and effective services to their customers, procurement of necessary equipment, maintenance of their office and equipment, periodical payment of necessary fee/charge/subscription amount to the MSOs and towards addressing the grievances of their customers which inter alia include repairing and replacing of necessary equipment and its regular maintenance.
5. It is contended that by virtue of the impugned notification, the Ministry of Information and Broadcasting has made it obligatory for every cable operator to transmit or retransmit programmes of any channel in an encrypted form through a digital addressable system in such city, town or area as specified in column (2) of the table in respect of corresponding State or Union 15 territory as specified in column (3) thereof with effect from such date as specified in column (4) of the table of the said notification. As per the said notification, it was peremptory on the cable operations to transmit or retransmit programmes through a digital addressable system in the cities of Bangalore and Mysore w.e.f. 1.4.2013. Though the impugned notification had prescribed duration within which the cable operators required to transmit programmes of any channel in an encrypted form through a digital addressable system in the cities detailed therein in a phased manner, the same had not detailed the rules governing the cable TV operators and the MSOs. The LCOs are linked to the MSOs as Local TV operators and are paying subscription charges. The Regulations, namely, Standards of Quality of Service (Digital Addressable Cable TV Systems) Regulations, 2012 (for short 'Regulations 2012') prescribed certain general framework/standards and introduced certain checks and balances on both the MSOs and the LCOs. The official respondents have not 16 issued periodical directions, guidelines and frameworks to achieve the objects of Regulations, 2012. No efforts were made to ensure uniformity amongst various MSOs and LCOs and no schemes/rules governing the relationship between the MSOs and the LCOs were prescribed which inter alia includes the revenue sharing, the nature of agreement/understanding to be reached to between the MSOs and the LCOs, quantification of the assets and the services of the LCOs, up-gradation of existing equipment to match the digital standards, etc., and left the interest of the LCOs in real vacuum.
6. Even the general public are kept in total dark without any proper instructions as to seeding of set top boxes (for short 'STBs'). No uniformity in prices with respect to STBs was ensured and different MSOs were allowed to quote different prices for the STBs. Despite the reiterated request of the LCOs, the MSOs have failed to inform them in writing as to the availability of STBs. 17 Their customers were kept in total dark without knowing as to whether the price paid by them with respect of seeding of STBs is with respect to purchasing of the same or will it be treated as activation charge or any hidden charges are prescribed/involved. The MSOs have not prescribed any schemes so that the general public would have the option to compare the price quoted by MSOs with other DTH operators and opt for most suitable packages.
7. When the LCOs have started enquiring as to their relationship with MSOs and requested them to enter into binding agreements with some of the LCOs, they have started supplying the formats of document styled Interconnect Link Agreement and started compelling the said members to sign the agreement on dotted lines. The LCOs had no bargaining power and as the agreement was purely one sided, they have refused to accept the said terms and conditions as it exists. They were helpless in seeding 18 the STBs in time on account of the total inaction and non- cooperation of MSOs and on account of vast discretion conferred by Regulations, 2012 on the MSOs, which has led them into total dark.
8. They gave a detailed representation to the Hon'ble Governor of the State for his immediate action on 26.2.2013. Though the representation was forwarded to the Principal Secretary, Government of Karnataka, Department of Information and Technology, no response was received by them till date. It is contended that the LCOs were always ready and willing to seed the STBs. However, on account of inaction on the part of the MSOs and on account of no further directions issued by the official respondents governing the seeding of STBs and all other issues incidental and ancillary thereto including the relationship between the MSOs and the LCOs, they are facing practical difficulty in 19 seeding the STBs. The Nodal Officer has not given any timely instructions/guidelines and directions to achieve the objects of the Regulations, 2012.
9. The MSOs have filed their statement of objections opposing the writ petitions. Similarly, the Union of India and the Indian Broadcasting Foundation have also filed their statement of objections.
10. As noticed, W.P.No.15651/2013 has been filed by a MSO challenging the impugned notification contending that it had made an application dated 12.12.2012 seeking issuance of certificate of registration to operate as a MSO in the Digital Addressable System. It has deposited necessary fee of Rs.1 lakh as stipulated with the Chief Accounts Officer, Ministry of Information and Broadcasting. After more than a month, it received a communication from the 20 Ministry of Information and Broadcasting pointing out some shortcomings in its application and directed it to furnish the documents/information on an urgent basis so as to enable it to process its case for grant of MSO permission. The petitioner sent a reply to the said notice. Thereafter, the petitioner received a certificate of registration to operate as MSO dated 21.2.2013 only on 1.3.2013.
11. Ever since the petitioner received the certificate of registration, it has at a war footing initiation action to roll out its operations in full measure and that it has taken all steps mandated in the said direction. It is further contended that in the event that 60 days or for that purpose even 30 days are counted from the date of receipt of the grant of permission, then it surpasses 31.3.2013, which is the deadline for analog switch off as per the notification. The process involves certain functional modalities to ensure that 21 digital addressable system installed by the MSOs for the distribution of TV channels meets the digital addressable system requirements specified in Schedule I to DAS Regulations which includes intimation to the MSOs of deficiencies by broadcasters, auditing by M/s Broadcast Engineering Consultants India Limited, etc. These procedures are time consuming and needs resolution before a MSO can access content from the broadcaster.
12. It is further contended that delay on the part of the Ministry of Information and Broadcasting in issuing necessary registration and clearances despite knowing fully well that such belated permission would make it humanly impossible for it to roll out operations within the designated deadline of 31.3.2013, it is left with no other alternative but to approach this Court seeking a direction to the Ministry of Information and Broadcasting to modify/extend the date of implementation of the impugned 22 notification.
13. Sri S.Sreevatsa, learned Senior Counsel appearing for the petitioners in some of the writ petitions contends that the policy of the Government in making it obligatory for every Cable Operator to transmit or retransmit the programmes of any channel in an encrypted form through digital addressable system under Annexure 'D' is totally arbitrary, capricious and mala fide. It is argued that though Regulations, 2012 prescribed general guidelines with respect to standard of quality of service governing Digital Addressable Cable TV systems, the same had failed in bringing harmony between the MSOs and the LCOs on account of the non- cooperation and inaction of the MSOs and due to the failure on the part of the Nodal Officer to compel the MSOs to introduce necessary schemes governing the seeding of STBs. 23
14. It is further contended that Regulations, 2012 under the guise of prescribing standard guidelines with respect to digital addressable cable TV systems had vested arbitrary discretion with the MSOs with respect to introduction of schemes, prescription of rates and seeding of STBs. It is contended that under the guise of exercising control over the LCOs, the MSOs are making futile attempt to meddle with the business of the LCOs and are compelling them to heed to the unlawful demands of the MSOs. They are compelled to sign contracts on dotted lines and under the guise of seeding STBs, the MSOs are making futile attempt to dilute the very business of the LCOs by not supplying the requisite quantities of the STBs and by not introducing any scheme to the customers. The basis for fixation of deadline as 31.3.2013 is again arbitrary.
15. The notification does not stipulate any minimum 24 standards to be followed with respect to digital cable TV network. The respondents have not made any efforts to introduce any scheme governing the STBs. There is no uniformity in fixation of price of the STBs. They are not aware as to how many STBs are actually available with the MSOs. The Implementing Authority has not made any efforts to safeguard the interest of LCOs. The Association of Cable Operators has more than 1200 members and thousands of families are dependent on the Cable TV network for their livelihood. If the concerned authority disconnects the analog systems w.e.f. 31.3.2013, the LCOs would suffer irreparably as the same not only ruin their business but also erode their entire family. They will suffer for the no fault of theirs as they are totally dependent for supply of STBs.
16. Learned Counsel appearing for the petitioners in W.P.Nos.16079-16080/2013 and 3775/2013 have also made similar 25 submissions.
17. Sri D.N.Nanjunda Reddy, learned Senior Counsel appearing for the petitioner in W.P.No.15651/2013 submits that the application of the petitioner dated 12.12.2012 for issuance of certificate of registration to operate as MSO in Digital Addressable System has been positively considered and that the Ministry of Information and Broadcasting has granted certificate of registration on 21.2.2013. Eversince the petitioner received the certificate of registration, it has at a war footing initiated action to roll out its operations in full measure and it has taken all steps mandated in the said direction including interacting with M/s Broadcast Engineering Consultants India Limited, who are designated by the official respondents for implementation and auditing of the digital addressable system and it has placed orders to obtain equipments to roll out operation in full scale.
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18. As per Regulation 3(4) of the Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) Regulations, 2012 every broadcaster has been given a time period of 60 days to provide signals to a MSO from the date of receipt of request for signals from the latter. As per Regulation 5(3) of DAS Regulations, every broadcaster has been given a time of 30 days from the date of receipt of request from the MSO to enter into an interconnection agreement. In the event that 60 days or for that purpose even 30 days are counted from the date of receipt of the grant of permission, then it surpasses 31.3.2013, which is the deadline for analog switch off as per the notification. More over, the process also involves certain functional modalities to ensure that digital addressable system installed by the MSO for the distribution of TV channels meets the digital addressable system requirements specified in Schedule I to DAS Regulations, which includes 27 intimation to the MSO of deficiencies, by broadcasters, auditing by M/s Broadcast Engineering Consultants India Limited. These procedures are time consuming and needs resolution before a MSO can access content from the broadcaster.
19. The delay on the part of the Ministry of Information and Broadcasting in issuing the necessary registration and clearances has ensured that the petitioner would not be in a position to roll out its full operations within the notified deadline of 31.3.2013. If the deadline is not extended, it would jeopardize the entire investments made by the petitioner and would eliminate it from the market as a prospective MSO.
20. Sri K.G.Raghavan, learned Senior Counsel appearing for the MSOs submits that petitioners have not made out any legal grounds for quashing the notification. It is contended that in the 28 current system of signal transmitting in the country is analog which signifies the form of (old) technology being used to transmit and retransmit the signals from the broadcaster to the viewers through the MSOs and the LCOs. The LCOs, who receive the signals from the MSOs transmit them to the viewers across the country.
21. In the present analog system, the Telecommunication Regulatory Authority of India ('TRAI' for short) noted several shortcomings and inadequacies. In the year 2005, the TRAI in consultation with the various stakeholders, namely, broadcasters, MSOs and LCOs and others brought out a Consultation Paper on Digitization of Cable Television dated 3.1.2005. Based on the said recommendations, the TRAI sought to address the issue by recommending a change from the analog system to the digital system for the whole of the country, which would overcome some of the serious limitations in the analog system. The digitization and 29 the addition of STBs to a television, the viewer could experience a range of interactive services including email, games, shopping, information and internet access, etc. With digitization, it is possible to provide programmes in High Definition Television with higher resolution and improved sound.
22. The consultation paper identified areas that needed to be addressed for the purposes of ensuring digitization. The MSOs welcomed this forward march in technology as proposed by the TRAI. As the statutory mandates was not forthcoming, the MSOs decided to attempt to voluntarily digitize their Cable Television Networks across India including the City of Bangalore. STBs were procured by the MSOs in Bangalore as far back as in the year 2008 and the MSOs went about installing these STBs in the premises of customers, who were willing and want to improve their quality of viewing television.
30
23. The TRAI in continuation of its policy making came out with a recommendation on the 'Implementation of Digital Addressable Cable TV Systems in India' in the year 2010. The TRAI suggested several recommendations stated therein. The shift from the analog to the digital system would require a subscriber to purchase STB, which is placed in the house of the subscriber. The STB would approximately cost of Rs.999/- onwards and depends on the quality and the market forces. By virtue of digitization, the exact number of subscribers, the choice of their programmes, whether payment is being made or not, etc., can be monitored by the MSO, thus shifting control from LCO to MSO altogether.
24. Pursuant to the recommendations and information available with it, the Government of India expressed its final views for digitization. It was decided as a policy that Phase II which 31 included Bangalore and Mysore be digitized before 31.3.2013. It is pursuant to these recommendations and the change in the policy of the State the notification dated 11.11.2011 was issued. The cities of Delhi, Mumbai and Calcutta are now fully digitized and the digitization has been fully completed as on 31.10.2012.
25. The Government India in order to ensure that its policy of digitization is fairly, fully and effectively implemented to the satisfaction of all the stakeholders, constituted a Task Force on 18.4.2011 to oversee and monitor the implementation of digitization. This Task Force comprised of the representatives of all the stakeholders and interested parties in the Cable and Broadcasting industry including the LCOs. The LCOs were represented by the Cable Operators Federation of India, which is an organization comprising of all the various State Cable Operators Associations. The petitioners have all along been aware of and 32 been an active participant in the process of the digitization of the system.
26. The Government of India has by way of several advertisements and public notices continuously tried to educate the people about the eventful shift from analog to digital. It is further submitted that the Government and its functionaries have periodically issued several directions, guidelines and frameworks to effectively implement the digitization. They have framed Regulations to govern the tariff regime by specifically stating the price and the formula for sharing the same between the MSO and LCO. It is argued that no customer is not aggrieved by the policy. It is the LCOs, who have filed the writ petitions and not the viewing public. 68% of the population in Bangalore have already purchased STBs. The MSOs do not have any control over the prices and the same is determined by the market forces. There are adequate 33 number of STBs available with the MSOs. The learned Senior Counsel further submits that similar writ petitions filed before the High Courts of Bombay, Delhi and Allahabad have been dismissed.
27. Sri Ravi B. Naik, learned Senior Counsel appearing for the Indian Broadcasting Foundation and Sri Kalyan Basavaraj, learned ASG appearing for the official respondents have also made similar submissions.
28. I have carefully considered the arguments made by the learned Counsel at the Bar and perused the materials placed on record.
29. The gist of the grievance of the petitioners appears to be that the implementation of digitization has rendered it impossible to the LCOs on account of the fact that the MSOs have not supplied 34 enough and sufficient STBs for installation with viewers and no uniformity of revenue sharing, no scheme to govern the relationship between MSOs and LCOs and it is one sided affair, thereby postpone the said policy of digitization itself on account of it being impossible to perform within the stipulated time frame. It is a policy decision taken by the Government for digitization.
30. It is settled principle of law that matters relating to framing and implementation of policy primarily fall in the domain of the Government. It is an established requirement of good governance that the Government should frame policies which are fair and beneficial to the public at large. The Government enjoys freedom in relation to framing of policies. It is for the Government to adopt any particular policy as it may deem fit and proper and the law gives it liberty and freedom in framing the same. Normally, the Courts would decline to exercise the power of judicial review in relation to such matters. But this general rule is not free from 35 exceptions. The Courts have repeatedly taken the view that they would not refuse to adjudicate upon policy matters if the policy decisions are arbitrary, capricious or mala fide (See BRIJ MOHAL LAL VS. UNION OF INDIA AND OTHERS - (2012) 6 SCC 502.
31. In PREMIUM GRANITES AND ANOTHER VS.
STATE OF TAMIL NADU AND OTHERS - (1994) 2 SCC 691, the Apex Court has held that it is not the domain of the Court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. The Court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution of India or any other statutory right. 36
32. The concept of digitization was first introduced by the Government in the year 2002. The Cable Television Networks (Regulation) Act, 1995 was amended on 31.12.2002. By virtue of that amendment, Section 4A was inserted. Respondent No.1 under the power granted to it under the original Section 4A issued a notification mandating that programmes of pay channels shall only be transmitted in an encrypted form through a conditional access system in parts of the city of Mumbai, New Delhi and Chennai. This CAS system is similar to the present DAS system This system was successfully implemented in these cities whereas for the rest of India, the analog system continued to prevail. The current system of signal transmission in the country is analog which signifies the form of (old) technology being used to transmit and retransmit the signals from the broadcaster to the viewers through the MSOs and the LCOs.
37
33. Under the existing analog system, TRAI noted certain shortcomings and inadequacies. In view of the said limitations, in the year 2005, the TRAI in consultation with the various stakeholders, namely, the broadcasters, MSOs and the LCOs and others brought out a Consultation Paper on Digitization of Cable Television dated 3.1.2005. Based on the said recommendations, the TRAI sought to address the issue by recommending a change from the analog system to the digital system for the whole of the country, which would overcome some of the serious limitations in the analog system.
34. By digitization and the addition of a STB to the television, the viewer could experience a range of interactive services. With digitization, it is possible to provide programmes in High Definition Television with higher resolution and improved sound. The Consultation Paper identified areas that needed to be 38 addressed for the purposes of ensuring digitization.
35. The TRAI in continuation of its policy making came out with a recommendation on the Implementation of Digital Addressable Cable TV systems in India in the year 2010. The recommendations noted some of the issues in the analog cable TV market. A shift from the analog to the digital system would require a subscriber to purchase a STB, which is placed in the house of the subscriber. Pursuant to the recommendations and the information available with it, respondent No.1 expressed its final view for digitization. As per the same, it was decided as a policy that Phase II, which included Bangalore and Mysore be digitized before 31.3.2013. It is pursuant to these recommendations and the change in the policy of the State, the notification dated 11.11.2011 was issued.
39
36. Petitioners are not able to show that the policy decision infringes fundamental rights guaranteed by the Constitution of India or any other statutory right. In fact, similar contentions raised before the High Court of Judicature at Bombay in BHAWANI RAJESH CABLE AND DIGITECH SERVICES PVT. LTD. VS.
UNION OF INDIA AND ANOTHER - W.P. (LODG).No.2610/2012 and connected matters disposed of on 31.10.2012 has been rejected by holding as under:
"A certain degree of inconvenience is inevitable in the enforcement of any deadline. The new regime which has been put into place by the Union Government is with a view to provide quality service to consumers. The individual business hardship that is faced by a business operator must necessarily give way to the public interest in ensuring that services of a stipulated quality are 40 available to the members of the viewing public. We have been assured by the learned ASG appearing on behalf of the Union Government that necessary steps have been taken to ensure that the access to television coverage would not be disturbed particularly during the ensuing festival season. In so far as the petitioner is concerned, we are of the view that besides a suppression of material fact, the conduct of the petitioner clearly dis-entitles it to any relief. We do not find any illegality in the decision of the Union Government. The petition is accordingly dismissed."
37. The Allahabad High Court in MOHD. ISHAK ALI VS. UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING - Misc.Bench No.2446/2013 disposed of on 21.3.2013 has observed as under:
"It has been further submitted by the 41 learned Additional Solicitor General that the vires of the notification issued under Section 4-A of the Act dated 11th November, 2011 contained in Annexure-4 has been upheld by the Bombay High Court as well as by the Delhi High Court.
When better technology becomes available and where it is in public interest to adopt such technology in the interest of health and enjoyment of the viewers, such provisions are necessary so that the concerned agencies may ensure adoption of new technology. We do not find that any case for violation of Article 14 of the Constitution of India is made out and such a decision cannot be treated as arbitrary.
So far as Article 19 of the Constitution of India is concerned, a person, no doubt, has fundamental right to freedom of speech and expression but Article 19(2) permits the State to make any law imposing reasonable restriction on 42 such right. In the present case, it is very difficult to accept the contention that measures taken to oust obsolete technology and introduce better means of viewing television in public interest will amount to curtailment of right to freedom of speech and expression. It is true that certain lower strata of society may not have means to buy television but that cannot be said to be denial of freedom of speech and expression to such section of society. We have no hesitation in rejecting the contention that provisions contained in Section 4-
A of the Act or the notification dated 11 th
November, 2011 violate any constitutional
provisions."
38. It is also clear from the materials on record that respondent Nos.1 to 3 have periodically issued several directions, guidelines and frameworks to effectively implement digitization.
Respondent Nos.1 to 3 have framed Regulations to govern the tariff regime by specifically stating the price and the formula for sharing 43 the same between the MSO and LCO. The broad terms of the interconnect link agreements have also been specified and the MSO and the LCO are mandated to abide by it. It is to be noticed here that these writ petitions are not filed by the viewing public. In so far as STBs are concerned, it has to vary in accordance with the quality, features and the make. The MSOs do not have any control over the prices and the same is determined by the market forces.
The respondents have placed materials before the Court to show that adequate number of STBs are available with the MSOs. As held by the Bombay High Court in the decision referred to above, a certain degree of inconvenience is inevitable in the enforcement of any deadline. The new regime which has been put into place by the Union Government is with a view to provide quality service to consumers. The individual business hardship that is faced by the LCOs must necessarily give way to the public interest in ensuring that services of a stipulated quality are available to the members of the viewing public.44
38. In fact, this Court found no merit in the writ petition in No.3775/2013. When the matter came up for preliminary hearing on 23.1.2013, this Court has observed as under:
"The policy decision of the Union is virtually under challenge in this writ petition.
Such a policy decision cannot be interfered with, particularly, when the policy is taken by the State in the interest of public at large and in the interest of the State.
This Court does not find any illegality, much less absurdity in the policy of the State in respect of transmitting or retransmitting the programmes of any channels in encrypted format through digital addressable system. The members of the petitioner are also given time up to 30th March, 2013 to switch over to the new system."45
39. In so far as the contentions in W.P.No.15651/2013 are concerned, merely because the petitioner has received the registration certificate on 21.2.2013, the implementation of the impugned notification cannot be postponed to suit its convenience.
40. There is no merit in these cases. They are accordingly dismissed. No costs.
Sd/-
JUDGE.
BMM/-