Calcutta High Court (Appellete Side)
Soumen Roy & Ors vs Union Of India & Ors on 31 January, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
1
31.01.2019
Item No. 1
Ct. No.4
AB
W.P. 77 (W) of 2019
+
CAN 1002 of 2019
In the matter of: Soumen Roy & Ors.
-versus -
Union of India & Ors.
Mr. Debabrata Saha Roy
Mr. Indranath Mitra
Mr. Pingal Bhattacharya
Mr. Subhankar Das
Mr. Neil Basu
........ For the petitioners
Mr. Kaushik Chanda, ld. Addl. Solicitor General
Mr. Tarunjyoti Tewari
.... For applicant/TRAI
Mr. Subir Sanyal
Mr. Ritwik Pattanayak
......... for respondent nos. 1, 2&3
Mr. Indranil Nandi Mr. Sayak Konar ........ for respondent no. 6 Mr. Saurabh Maitra ........ for respondent no. 7 Mr. Biswaroop Bhattacharya Mr. Koustav Bagchi Mr. Arup Sarkar ..... for respondent no. 9 Mr. Saptarshi Banerjee Ms. Namrata Basu .... For Jyotsna Cable Networks The writ petition has been listed under heading 'to be mentioned' on direction for it to be listed at 10:30 A.M. It was moved on 29th January, 2019, ex parte save 2 and except against Union of India. Interim order was made staying intended implementation of Regulations made by Telecom Regulatory Authority of India (TRAI) by notification dated 3rd March, 2017, till 18th February, 2019. Reasons for being persuaded to pass such direction ex parte against most respondents, particularly against TRAI, were given in said order but limitation thereof was influenced by submission made that interim order of stay had already been passed by a learned Single Judge of Kerala High Court, Ernakulam Bench. TRAI came up with application for vacating the order. Basis for limiting the order was demonstrated as non- existent since interim order of Kerala High Court perished with the writ petition as stood dismissed before 29th January, 2019.
Today parties have been heard at interim stage. Court ascertained from appearing learned advocates representing impleaded Multi System Operators MSO(s) that there are 23 MSO(s) operating in West Bengal and 5 in Andaman and Nicobar Islands over which this Court exercises jurisdiction. Of 28 MSO(s), 4 have been impleaded and are represented. Their submission is, 3 they are not opposed to implementation of the Regulations.
Mr. Chanda, learned senior advocate, Additional Solicitor General appears on behalf of TRAI. He submits, there is no question of threat to livelihood of Local Cable Operators LCO(s). There is minimum revenue guarantee provided by the Regulations. This cannot be disputed. Over and above this minimum guaranteed revenue, there is additional revenue to be earned and shared between MSO(s) and LCO(s) for distribution on the ground. The ratio is free to be negotiated and agreed per Schedule V of the Regulations failing which they must have agreement prescribed in Schedule VI. Schedule VI agreement fixes revenue sharing ratio at 55:45 between MSO and LCO. This ratio is applicable to the minimum guaranteed revenue as also thereafter to anything that may be earned on top of it. Thus there is no question of threat to livelihood of LCO(s). He submits further, LCO(s) have had themselves registered. There is existing arrangement in place by which their identities and operation cannot be disputed. He submits on instructions, there can be interim direction for this existing arrangement to continue for limited period, by 4 which time existing LCO(s) and MSO(s) must have agreements between themselves, either under Schedule V, failing which Schedule VI. He explains to Court that requirement of Schedule VI, in default, is also fair. While Schedule V leaves open for negotiation fixation of revenue sharing ratio, also left open to be negotiated and correspondingly agreed is allocation of responsibilities for providing services on the ground to subscribers. It is only when MSO(s) and LCO(s) are unable to agree, on negotiation between themselves, Schedule VI kicks in requiring prescribed revenue sharing ratio and responsibilities regarding performance of functions of said service. He wants for his client to file affidavit to bring on record that LCO(s) were granted opportunity of ventilating their stand, as found by Supreme Court in judgement dated 30th October, 2018 in Civil Appeal 7326-7327 of 2018 [Star India Private Limited V. Department of Industrial Policy and Promotion and others], inter alia, paragraph 37, that all stake holders were taken on board in formulating impugned Regulations, which was not interfered with by said Court.
5
Mr. Saha Roy, learned advocate appears on behalf of petitioners and hands up Consultation Paper no. 2 of 2007 dated 22nd January, 2007, issued by TRAI on Revenue Sharing Formula for Service Providers in Conditional Access System (CAS) in notified areas, in which consultation sub-clause (17) provides for following:
"17. It is submitted that in the impugned regulation dated 24th August, 2006, the following revenue share has been stipulated:
Pay Channels:
i) Broadcasters share - 45% of MRP
ii) MSO's share - 30% of MRP
iii) Cable Operators' share- 25% of MRP
2. Basic Service Tier - 100% by Local Cable Operator (LCO)
3. Carriage Free - 100% by MSO"
He submits, this has now been reduced to Rs.9/- out of Rs.100/-. Broadcaster will get Rs.80/-, MSO Rs.11/- leaving balance to be had by his clients. In reducing this revenue share his clients have not been given opportunity of ventilating entitlement to revenue commensurate with services provided, hence their grievance. Moreover, MSO(s), under impugned Regulations, will devour his clients' business thereby leading to loss of livelihood. Court stands assured by 6 appearing MSO(s) that they will, if Schedule V agreements are not entered into, have with their LCO(s), agreements prescribed under Schedule VI. Mr. Bhattacharya, learned advocate appearing on behalf of respondent no. 9 (MSO) submits, his client has entered into negotiated agreement with LCO at, inter alia, revenue sharing ratio of 60:40.
TRAI will file affidavit confined to demonstrating LCO(s) were allowed to participate in providing their inputs in making of impugned Regulations. Copy of the affidavit should be made over to petitioners by 28th February, 2019. Petitioners will be entitled to use reply affidavit on copy served. Affidavits will be accepted on adjourned date.
Existing arrangement between LCO(s) and MSO(s), who have not already have had between themselves either Schedule V or Schedule VI agreements as on date, will continue till 8th February, 2019 for them to work out their agreements under either Schedules. There cannot be any apprehension of any existing LCO being left out as operating on date as existing arrangement is an admitted position between parties. There may be areas 7 where there is or are only MSO(s) operating. Order dated 29th January, 2019 stands thus modified.
Mr. Banerjee, learned advocate appears on behalf of Jyotsna Cable Networks, P-217, CIT Road Scheme, Kolkata - 700 054 and prays for being added as party. He submits, his client's application is ready for to be filed. He undertakes to file the same within course of today. Petitioners are directed to add this LCO upon it approaching petitioners' learned advocate with proof of application filed. Let the amendment be made in Court thereafter and countersigned by Assistant Court Officer. Petitioners will then make available amended copy of writ petition to added respondent.
List on 6th March, 2019 under heading 'for orders'.
(Arindam Sinha, J.)