Kerala High Court
The Mathrubhumi Publishing And ... vs Union Of India on 4 March, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941
WP(C).No.10920 OF 2019(L)
PETITIONER:-
THE MATHRUBHUMI PUBLISHING AND PRINTING COMPANY
LTD.
MATHRUBHUMI BUILDINGS, K.P.KESAVA MENON ROAD,
KOZHIKODE-673 001, REPRESENTED BY ITS GENERAL
MANAGER HRD-G.ANAND.
BY ADVS.
SRI.S.VINOD BHAT
KUM.ANAGHA LAKSHMY RAMAN
RESPONDENTS:-
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF
INFORMATION AND BROADCASTING, A-WING, SHASTRI
BHAWAN, NEW DELHI-110 001.
2 MINISTRY OF INFORMATION AND BROADCASTING
REPRESENTED BY ITS SECRETARY, A-WING SHASTRI
BHAWAN, NEW DELHI-110 001.
3 TELECOM REGULATORY AUTHORITY OF INDIA,
MAHANAGAR DOORSANCHAR BHAWAN (NEXT TO ZAKIR HUSSAIN
COLLEGE), JAWAHARLAL NEHRU MARG (OLD MINTO ROAD),
NEW DELHI-110 002, REPRESENTED BY ITS SECRETARY.
4 ASIANET DIGITAL NETWORK PRIVATE LTD.,
2A,2ND FLOOR, CARNIVAL TECHNOPARK, TECHNOPARK,
KAZHAKUTTOM, KARYAVATTOM P.O., THIRUVANANTHAPURAM-
695 581, REPRESENTED BY ITS DIRECTOR.
5 ASIANET SATELLITE COMMUNICATIONS LTD.,
2A,2ND FLOOR, CARNIVAL TECHNOPARK, TECHNOPARK,
KAZHAKUTTOM, KARYAVATTOM P.O., THIRUVANANTHAPURAM-
695 581, REPRESENTED BY PRESIDENT AND CHIEF
OPERATING OFFICER.
R1 BY ADV.KUM.S.KRISHNA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-
02-2020, THE COURT ON 04-03-2020 DELIVERED THE FOLLOWING:-
W.P.(C).No.10920/19
2
JUDGMENT
Dated this the 4th day of March 2020
1. This writ petition is filed with the following substantial prayers:-
"a. To issue a writ of mandamus or such other writ directing the 3 rd respondent to decide on Exts.P8 and P11 after hearing the petitioner;
b. To issue a writ of mandamus or such other writ directing the 3 rd respondent to direct the 4 th/ 5th respondents not to pursue further with any coercive action whatsoever or as threatened by Ext.P10."
2. Heard the learned counsel for the petitioner, learned Central Government Counsel appearing for respondents 1 to 3, as well as the learned counsel appearing for respondents 4 and 5.
3. The petitioner, who is a licensed broadcaster operating two Free-To-Air TV channels, is before this Court seeking directions to the 3rd respondent to decide on Exhibits P8 and P11 complaints preferred by the petitioner. The learned counsel for the petitioner submits that a formal agreement for placement and marketing support of the petitioner's channels on the distribution network of the 5 th respondent had been W.P.(C).No.10920/19 3 entered into between the parties on 08.12.2018. It is stated that the 3rd respondent had rolled out a new regulatory framework for service providers regulating all aspects of interconnection agreements between the service providers. It is stated that on the implementation of the new regulatory frame-work, the 4th respondent was duty bound to amend or renew their existing interconnection agreements to bring them in tune with the new regulatory frame-work. However, the 4 th respondent refused to accept an interconnection agreement with the petitioner stating that Exhibit P1 agreement already entered into has to be complied with by the petitioner. It is stated that the petitioner sought the intervention of the 3 rd respondent for compelling the 4th respondent to execute the interconnection agreement, which was rejected by Exhibit P7. It is stated that Exhibit P11 request is also pending before the 3rd respondent and is liable to be considered on merits.
4. A statement and additional statement have been placed on record by the 3rd respondent. It is contended that the issue is with regard to placement and marketing agreement between W.P.(C).No.10920/19 4 the petitioner and the 4 th respondent and that the Telecom Regulatory Authority of India (TRAI for short), which is a regulatory authority, has no role to play in such a dispute. It is contended that the issue has to be appropriately raised before the Telecom Disputes Settlement Appellate Tribunal (TDSAT for short).
5. The learned counsel for the 4th respondent would contend that the issue raised in Exhibits P8 and P11 specifically being the dispute between the petitioner and the 4 th respondent, who are both service providers under the definition of the term is not liable to be considered by the TRAI at all. It is contended that during the pendency of this writ petition, an interconnection agreement has been entered into between the parties. It is further contended that on the guise of raising a dispute and seeking the intervention of TRAI, the petitioner has been defaulting in payment of placement fee and marketing charges as are applicable and agreed between the parties on the basis of Exhibit P1. It is, therefore, contended that the action of the petitioner is intended to defeat the rights W.P.(C).No.10920/19 5 of the 4th respondent and should not be countenanced by this Court.
6. Having heard the learned counsel on either side and having considered the contentions advanced, I am of the opinion that the issues raised by the petitioner in Exhibits P8 and P11 are disputes as between the petitioner and the 4 th respondent, who are both service providers under the TRAI Act and Regulations. If that be so, the issue raised is not one which is to be considered by TRAI, which is empowered to make regulations with regard to the interconnections between service providers. In the case of any dispute between service providers, it is for the TDSAT to consider the matter. The petitioner's contention is that Ext.P1 placement and marketing agreement is contrary to the 2017 Regulations. Chapter IV of the TRAI Act specifically provide for the raising of such grievance before the TDSAT. The TDSAT in its decision which was relied on by the learned counsel for the 4th respondent has held that any dispute between service providers is to be considered by the TDSAT and no other authority. Having W.P.(C).No.10920/19 6 considered the contentions advanced, I am of the opinion that the issue raised by the petitioner before the TRAI is a dispute between the service providers. Therefore, the reliefs sought for in this writ petition cannot be granted. The writ petition fails and the same is accordingly dismissed, leaving open the contentions of the petitioner to be decided in appropriate proceedings.
Sd/-
Anu Sivaraman, Judge sj W.P.(C).No.10920/19 7 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF AGREEMENT DATED 08.12.2018.
EXHIBIT P2 COPY OF THE LETTER DATED 05.12.2018 SENT BY THE 3RD RESPONDENT.
EXHIBIT P3 COPY OF THE LETTER DATED 02.01.2019 SENT BY THE RD RESPONDENT.
EXHIBIT P4 COPY OF THE LETTER DATED 20.12.2018 SENT BY THE PETITIONER TO RESPONDENTS 4 & 5.
EXHIBIT P5 COPY OF THE LETTER DATED 04.02.2019 SENT BY RESPONDENT NO.5.
EXHIBIT P6 COPY OF THE LETTER DATED 21.02.2019 BY THE PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P7 COPY OF THE LETTER DATED 11.03.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P8 COPY OF THE LETTER DATED 23.03.2019 SENT BY THE PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P9 COPY OF THE LETTER DATED 30.03.2019 SENT BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P10 COPY OF THE LETTER DATED 03.04.2019 SENT BY THE 4TH RESPONDENT TO THE PETITIONER.
EXHIBIT P11 COPY OF THE LETTER DATED 04.04.2019 SENT BY THE PETITIONER TO THE 3RD RESPONDENT.
True copy PS to Judge