Delhi High Court - Orders
Star India Pvt Ltd vs Royal Digital Cable Communications Pvt ... on 26 September, 2022
Author: Yashwant Varma
Bench: Yashwant Varma
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6681/2022, CM APPL. 20282/2022 & CM APPL.
20284/2022
STAR INDIA PVT LTD ..... Petitioner
Through: Mr. Kunal Tandon, Mr. Kumar
Shekhar, Advs.
versus
ROYAL DIGITAL CABLE COMMUNICATIONS PVT LTD &
ANR. ..... Respondents
Through: Mr. Rajshekhar Rao, Sr. Adv. with
Mr. Himanshu Dhawan, Ms. Mansi
Sood, Advs. for R-1.
Mr. Kunal Tandon, Mr. Kumar
Shashank, Ms. Anchal, Advs.
Mr. Arjun Natarajan, Mr. L.K.
Srivastava, Advs. for TRAI
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 26.09.2022
1. The petitioner impugns an order of 11 March 2022 passed by the Telecom Disputes Settlement and Appellate Tribunal [TDSAT] while entertaining a petition which had been filed by the respondents here questioning the validity of a disconnect notice which had been issued by the petitioner.
2. After hearing parties on the questions which arose, the Tribunal in the order impugned observed thus:-
―6. After carefully going through all the materials on record, the Tribunal has to consider whether this petition should proceed with detailed hearing of the parties at length or an interim arrangement can be arrived at giving the liberty to the parties to pursue their rights and claims in the light of audit report. Considering all the facts and circumstances of the case and the peculiar nature of the case where the parties are at logger heads among each other and also in the absence of any established norms/criteria to arrive at the correct subscriber base in the given Signature Not Verified Digitally Signed By:NEHA Signing Date:27.09.2022 16:35:15 situation, it doesn't seem reasonable to devise an interim arrangement to resolve the dispute thus leaving no option but, to adopt the course of detailed hearing to decide the matter. Hence no further interim order at this stage.‖
3. The issues which otherwise arise from the challenge which was raised in those proceedings and the rights of the petitioner were duly noticed by the Court in its order of 27 April 2022 which is extracted hereinbelow:-
―1. The challenge to the order of Telecom Disputes Settlement and Appellate Tribunal [TDSAT] is addressed on the basis of Regulation 15 of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 which reads thus:-
―15. Audit.-- (1) Every distributor of television channels shall, once in a calendar year, cause audit of its subscriber management system, conditional access system and other related systems by an auditor to verify that the monthly subscription reports made available by the distributor to the broadcasters are complete, true and correct, and issue an audit report to this effect to each broadcaster with whom it has entered into an interconnection agreement:
Provided that the Authority may empanel auditors for the purpose of such audit and it shall be mandatory for every distributor of television channels to cause audit, under this sub-regulation, from anyone of such empanelled auditors:
Provided further that any variation, due to audit, resulting in less than zero point five percent of the billed amount shall not require any revision of the invoices already issued and paid. (2) In cases, where a broadcaster is not satisfied with the audit report received under sub-regulation (1) or, if in the opinion of a broadcaster the addressable system being used by the distributor does not meet requirements specified in the Schedule III, it shall be permissible to the broadcaster, after communicating the reasons in writing to the distributor, to audit the subscriber management system, conditional access system and other related systems of the distributor of television channels, not more than once in a calendar year:
Provided that the Authority may empanel auditors for the purpose of such audit and it shall be mandatory for every broadcaster to cause audit, under this sub-regulation, from anyone of such empanelled auditors:
Provided further that if such audit reveals that additional amount is payable to the broadcaster, the distributor shall pay such amount, Signature Not Verified Digitally Signed By:NEHA Signing Date:27.09.2022 16:35:15 along with the interest at the rate specified by the broadcaster in the interconnection agreement, within ten days and if such amount including interest due for any period exceed the amount reported by the distributor to be due for such period by two percent or more, the distributor shall bear the audit expenses, and take necessary actions to avoid occurrence of such errors in the future:
Provided also that it shall be permissible to the broadcaster to disconnect signals of television channels, after giving written notice of three weeks to the distributor, if such audit reveals that the addressable system being used by the distributor does not meet the requirements specified in the Schedule III.
(3) Every distributor of television channels shall offer necessary assistance to auditors so that audits can be completed in a time bound manner.‖
2. It is in the aforesaid backdrop that learned counsel submits that even if a final adjudication with respect to the validity of the findings recorded in the Audit Report were to merit detailed consideration, the right of the petitioner to disconnect should have at least been taken up for consideration.
3. In view of the above, let notice issue. Since the second respondent is already represented by learned counsel, separate steps need not be taken. Learned counsel for the petitioner is directed to take steps for service upon respondent No.1 through all permissible modes including via approved courier service.‖
4. As is evident from the aforesaid extract, the petitioner had essentially contended that if the Tribunal had come to conclude that it was not possible to take a final view on the competing Audit Reports which had been submitted in terms of the provisions made in Regulations 15(1) and 15(2) of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017, at least the right of the petitioner to have exercised the facility of disconnection was liable to be taken up for consideration especially when it had been found that the respondent was not compliant with Schedule III.
5. Mr. Rao, learned Senior Counsel appearing for the respondents, on the other hand, submits that the entire issue of the financial liability which Signature Not Verified Digitally Signed By:NEHA Signing Date:27.09.2022 16:35:15 may be imposed upon the respondents ultimately was dependent upon the TDSAT coming to form an opinion, at least prima facie, with regard to the validity of the audit which was conducted by the petitioner in terms of Regulation 15(2).
6. It becomes relevant to note that that it is the competing findings which have come to be noted in the two audits which were conducted which forms the bedrock of the dispute which has arisen. What concerns the Court is that the rights of the petitioner would be clearly impacted if no final view is taken by TDAST and in case no interim orders are passed, the petitioner's right to disconnect stands fettered. Viewed in that light, the deferral of proceedings by TDSAT without attending to the aspect of balancing the rights of parties in the interregnum, would cause serious injustice to the petitioner. In that view of the matter, the ends of justice would merit the petitioner being permitted to apply for interim directions before the TDSAT notwithstanding the order of 11 March 2022 which is impugned in the present writ petition.
7. Accordingly, and in light of the above, this writ petition shall stand disposed of on the above terms and with liberty to the petitioner to proceed further in light of the observations made above. All contentions of respective parties on merits are kept open.
YASHWANT VARMA, J.
SEPTEMBER 26, 2022/neha Signature Not Verified Digitally Signed By:NEHA Signing Date:27.09.2022 16:35:15