Delhi High Court
Seven Star Dot Com Pvt. Ltd. vs Zee Entertainment Enterprise Ltd. on 9 February, 2023
Author: Subramonium Prasad
Bench: Chief Justice, Subramonium Prasad
Neutral Citation Number : 2023/DHC/000940
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 09th FEBRUARY, 2023
IN THE MATTER OF:
+ LPA 79/2023 & C.M. No. 5051-5052/2023
SEVEN STAR DOT COM PVT. LTD. ..... Appellant
Through: Mr. Devesh Tripathi, Mr. Kaustubh
Shakkarwar & Mr. Mukeshwar Nath
Dubey, Advocates
versus
ZEE ENTERTAINMENT ENTERPRISE LTD. ..... Respondent
Through: Mr. Kunal Tandon, Mr. Kumar
Shashank Shekher, Ms. Aanchal
Khanna & Mr. Abhinav Dubey,
Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
SUBRAMONIUM PRASAD, J.
1. Aggrieved by the Order dated 23.01.2023, passed by the learned Single Judge in W.P. (C) 644/2023 dismissing the Writ Petition, the Appellant herein has filed the instant appeal.
2. Shorn of details, the facts, in brief, leading to the instant appeal are as under:
a) It is stated that an inter-connection Agreement dated 10.06.2021 was entered into between the Appellant herein and the Respondent herein which was valid till 09.06.2022. It is stated that a disconnection notice dated 12.10.2021 was issued by the Respondent to the Appellant herein which was challenged by Signature Not Verified Digitally Signed By:RAHUL SINGH LPA 79/2023 Page 1 of 12 Signing Date:09.02.2023 19:15:44 Neutral Citation Number : 2023/DHC/000940 the Appellant herein by preferring a Broadcasting Petition, being BP No.636/2021, before the Telecom Disputes Settlement and Appellate Tribunal (hereinafter referred to as „the Tribunal‟). It is stated that during the pendency of the broadcasting petition, vide letter dated 28.04.2022, the Respondent herein raised an additional demand of Rs.16,33,76,703/- upon the Appellant. The Tribunal vide Order dated 10.05.2022 disposed of BP No.636/2021 with liberty to the Appellant herein to challenge the demand issued by the Respondent herein.
b) It is stated that vide letter dated 26.05.2022, the Respondent herein issued a disconnection notice to the Appellant herein.
The Appellant herein preferred a Broadcasting Petition, being BP No.312/2022, before the Tribunal challenging the said disconnection notice. The Tribunal directed the Appellant herein to deposit Rs. 2 Crores before the Registrar, TDSAT, by way of a bank draft and subject to the said deposit, the Respondent herein was restrained from disconnecting the supply signals to the Appellant herein. The Appellant herein deposited the said amount on 20.06.2022.
c) When the matter came up for hearing on 18.11.2022, the Respondent herein highlighted before the Tribunal a number of non-compliances of the provisions/requirements under Scheduled III Appended to the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 (hereinafter referred to as „the Signature Not Verified Digitally Signed By:RAHUL SINGH LPA 79/2023 Page 2 of 12 Signing Date:09.02.2023 19:15:44 Neutral Citation Number : 2023/DHC/000940 Interconnection Regulations, 2017‟). The Tribunal, after hearing both the parties and after taking into account the opinion of the empanelled auditor of the TRAI, came to the conclusion that there have been substantial non-compliances on the part of the Appellant herein of the requirements under Scheduled-III appended with the Interconnection Regulations, 2017. The Tribunal also held that the effect of the non-compliances and the methodology adopted by the Appellant herein, prima facie, leads to a fact that there is a substantial under-declaration by the Appellant of the number of subscribers. Therefore, the TDSAT, vide Order dated 18.11.2022 vacated the stay granted on 14.06.2022.
d) The said order has been challenged by the Appellant before this Court by filing a Writ Petition, being W.P.(C) 644/2023.
e) The Appellant herein also moved an application, being CM APPL.456/2022, before the Tribunal, seeking recall of the order dated 18.11.2022 as well as for restoration of supply of signals by the Respondent herein. The application was withdrawn by the Appellant on 09.01.2023.
f) The learned Single Judge vide Order dated 23.01.2023 has dismissed the Writ Petition by observing that the Order of the Tribunal vacating the stay was based on the material available before the Tribunal and the same does not call for any interference.
g) It is this Order which has been challenged by the Appellant in the instant Appeal.
Signature Not Verified Digitally Signed By:RAHUL SINGH LPA 79/2023 Page 3 of 12 Signing Date:09.02.2023 19:15:44Neutral Citation Number : 2023/DHC/000940
3. Heard the Counsel for the parties and perused the material on record.
4. The instant Appeal primarily arises out of Order dated 18.11.2022 by which the Tribunal had vacated the interim order dated 14.06.2022 by which the Respondent herein was injuncted by the Tribunal from disconnecting the signals of the Appellant herein subject to the Appellant depositing a sum of Rs.2 Crores with the Tribunal. When the matter came up for hearing on 18.11.2022, the Tribunal, after going through the material on record before it and more particularly the report of the Auditor of the TRAI, found that various non-compliances have been found on the part of the Appellant herein on the requirement of Scheduled-III appended with the Interconnection Regulations, 2017. Relevant portion of the said Order reads as under:
"5. Having heard the counsel for the respondent and looking to the audit conducted by the empanelled auditor under Regulation 15 (2) of the Regulations, 2017 which is at Annexure P-9 to the memo of the petition given by the respondent. It appears that there are following types of noncompliances of the requirements by the petitioner Page No. 329 "Compliance Report for CAS & amp; SMS The compliance status as enumerated in below table is for currently deployed 3 CAS (Irdeto, ABV & amp; NSTV) and 1 SMS (Media Nucleus) however the same cannot be confirmed for the SMS used by DPO till 31st August, 2021 as the said system is found to be not connected with the network. The IRDETO CAS certificate(s) provided by DPO are undated and not contemporary therefore, non-compliant with the provisions of Schedule III.Signature Not Verified Digitally Signed By:RAHUL SINGH LPA 79/2023 Page 4 of 12 Signing Date:09.02.2023 19:15:44
Neutral Citation Number : 2023/DHC/000940 Page No. 332 Sl. No Regulation Compliance Requirement Status
15. The CAS shall be able Checked and to tag and blacklist VC found to be numbers and STB partially numbers that have been compliant as involved in piracy in IRDETO CAS has the past to ensure that no option for such VC or the STB Blacklisting the cannot be re-deployed. STB or VC but (Schedule III - C 15) ABV and NSTV do have Screenshot confirming same is attached herewith & marked as Annexure-33 Sample report is attached herewith & marked as Annexure-33
16. It shall be possible to Checked and generate the following found to be reports from the logs of partially the CAS: compliant for (c) & (d) as IRDETO STB-VC Pairing/De- CAS has no Pairing option to a. STB generate these Activation/Deactivation reports from b. Channels Assignment frontend except to STB for (a) as c. Report of the IRDETO CAS has activations or the cardless boxes deactivations of a only.
particular channel for a a. Annexure-34 Signature Not Verified Digitally Signed By:RAHUL SINGH LPA 79/2023 Page 5 of 12 Signing Date:09.02.2023 19:15:44 Neutral Citation Number : 2023/DHC/000940 given period. b. Annexure-35 (Schedule III - C 16) c. Annexure-36 d. Annexure-36 Page No. 334 Sl. No. Regulation Compliance Status Requirement
3. The fingerprinting Checked & found should not get to be partially invalidated by use compliant as in of any device or IRDETO boxes software. (Ref. Finger print Schedule III - D 3) disappear on Reboot Annexure-40
5. The finger printing Checked & found should be on the top to be partially most layer of the compliant as in video. (Ref. IRDETO CAS Schedule III - D 5) boxes finger printing is not on Top Most Layer.Page No. 335
Sl. No. Regulation Compliance Status Requirement
12. Scroll messaging Checked & found should be only to be Partially available in the compliant as scroll lower part of the is not supported in screen. (Ref. IRDETO Boxes.
Schedule III - D Annexure-43
12)
13. The STB should Checked & found
have a provision to be Partially
that fingerprinting compliant as after
is never disabled. reboot of IRDETO
(Ref. Schedule III - Boxes finger print Signature Not Verified Digitally Signed By:RAHUL SINGH LPA 79/2023 Page 6 of 12 Signing Date:09.02.2023 19:15:44 Neutral Citation Number : 2023/DHC/000940 D 13) disappeared.Page No. 336
Sl. No. Regulation Compliance Status Requirement
3. The STB should be Checked & found capable of doing to be partially fingerprinting. The compliant as STB should support IRDETO Box both Entitlement could not display Control Message the ECM (ECM) and Command on Entitlement Boxes Screen Shot Management is attached and Message (EMM) marked as based Annexure-44 fingerprinting. (Ref.
Schedule III - E 3)
5. The STB should be Checked & found able to receive to be partially messages from the compliant as Head-end. (Ref. IRDETO CAS has Schedule III - E 5) no option for messaging
6. Messaging Checked & found character length to be partially should be minimal compliant as 120 characters. IRDETO CAS has (Ref. Schedule III - no option for E 6) messaging.
Page No. 337 Sl. No. Regulation Compliance Requirement Status 7. There should be Checked & found provision for to be partially global messaging, compliant as group messaging IRDETO CAS has Signature Not Verified Digitally Signed By:RAHUL SINGH LPA 79/2023 Page 7 of 12 Signing Date:09.02.2023 19:15:44
Neutral Citation Number : 2023/DHC/000940 and the individual no option for STB messaging. messaging and (Ref. Schedule III NSTV and ABV
- E 7) has no option for Group Messaging.
8. The STB should Checked & found have forced to be partially messaging compliant as capability IRDETO CAS has including forced no option for finger printing messaging and display. (Ref. NSTV has no Schedule III - E option for Force
8) messaging.
Annexure-45
9. The STB must be Checked & found compliant to the to be partially applicable Bureau compliant as DPO of Indian did not provide Standards. (Ref. BIS Certificate for Schedule III - E 6 out of 10 STB
9) models declared by it. Annexure-8
11. The STBs with Checked & found facilities for to be partially recording the compliant as in programs shall case of IRDETO have a copy related STBs, protection system. recording was (Ref. Schedule III playing even after
- E 11) deactivation.
Page 339-340 Sl. No. Regulation Compliance Status Requirement
8. Compliance Status The SMS used by of the CAS and SMS DPO till 31st August, 2021 was Signature Not Verified Digitally Signed By:RAHUL SINGH LPA 79/2023 Page 8 of 12 Signing Date:09.02.2023 19:15:44 Neutral Citation Number : 2023/DHC/000940 found to be not connected with the network hence the compliance status for same cannot be confirmed. The IRDETO CAS certificate(s) provided by DPO are undated and not contemporary therefore, non-
compliant with the
provisions of
Clause C of
Schedule III
9. Compliance Status In case of IRDETO of Fingerprinting CAS related STBs finger print disappears on Reboot hence noncompliant to clause D (3) and D(13) of Schedule III.
In case of IRDETO CAS related STBs finger print does not appear on top most layer hence non-compliant to clause D(5) of Schedule III.
In case of IRDETO
CAS related STBS,
the colour and
position of
Signature Not Verified
Digitally Signed
By:RAHUL SINGH LPA 79/2023 Page 9 of 12
Signing Date:09.02.2023
19:15:44
Neutral Citation Number : 2023/DHC/000940 fingerprint is fixed hence non-
compliant to clause D(8) of Schedule III.
In case of IRDETO
CAS related STBS
individual finger
print appears as
global hence
noncompliant to
clause D (10) of
Schedule III.
Scroll is not
supported by
IRDETO CAS
related STBS hence
non-compliant to
clause D (12) of
Schedule III.
Page no. 314
AUDITOR‟S OPINION & CONCLUSION The Digital Addressable System (CAS, SMS and STB) available and installed at M/s. Seven Star Dot Com Pvt. Ltd., Versova during the compliance audit (14th February 2022 to 26th February 2022), except reported otherwise in the previous sections of this report, meets the minimum requirements as specified by TRAI under DAS Schedule-III of Telecommunication (Broadcasting and Cable) Services Interconnection (Digital Addressable Signature Not Verified Digitally Signed By:RAHUL SINGH LPA 79/2023 Page 10 of 12 Signing Date:09.02.2023 19:15:44 Neutral Citation Number : 2023/DHC/000940 System) Regulations, No. 1 of 2017, dated March 3, 2017 issued by TRAI.
In view of our observations regarding the SMS which was in use for substantial audit period (31 out of 36 months) and IRDETO CAS Servers having major subscriber data, the com compliance status cannot be confirmed for the entire audit period.""
5. Based on the material before it, the Tribunal came to the conclusion that the resultant effect of the non-compliances and the methodology adopted by the Appellant herein, prima facie, leads to a fact that there is a substantial under-declaration by the Appellant of the number of subscribers. The Tribunal held that more the subscribers, more the amount is payable by the Appellant to the Respondent. The Tribunal further held that the Appellant herein, who is an MSO (Multiple System Operator), has attempted to under- declare the number of subscribers by adopting various methods and, therefore, an audit by an empanelled auditor was done as per the Interconnection Regulation, 2017. On the basis of the auditor's report and looking at the substantial non-compliances, the Tribunal found that the Respondent herein has all power, jurisdiction and authority to disconnect the supply of signals of their channels which are given to the Appellant herein and, therefore, the Tribunal found it expedient to vacate the interim order.
6. The Order of the Tribunal is well reasoned and the learned Single Judge, while exercising its jurisdiction under Article 226 of the Constitution of India, has chosen not to interfere with the said Order. The learned Single Judge has also pointed out that the Petitioner has, in fact, in addition to moving the Writ Petition, has also moved an application, being CM APPL.456/2022, before the Tribunal for recall of the order dated 18.11.2022, Signature Not Verified Digitally Signed By:RAHUL SINGH LPA 79/2023 Page 11 of 12 Signing Date:09.02.2023 19:15:44 Neutral Citation Number : 2023/DHC/000940 which is an abuse of the process of law. The Appellant ought not to have resorted to avail two parallel remedies, i.e. approaching this Court by filing a Writ Petition and also approaching the Tribunal by filing an application for recall of the Order dated 18.11.2022. In any event, the said application was withdrawn after some arguments before the Tribunal which means that the said application was withdrawn only when the Appellant herein found that the Tribunal was not inclined to recall its order dated 18.11.2022. The Broadcasting petition is pending consideration before the Tribunal.
7. In view of the above, this Court does not find any reason to interfere with the Order dated 18.11.2022, passed by the Tribunal and also with the Order dated 23.01.2023, passed by the learned Single Judge.
8. It is made clear that the observation made by this Court is only in the context of the correctness or otherwise of the Order dated 18.11.2022 by which the stay granted vide Order dated 14.06.2022 had been vacated and is not an expression on the merits of the case.
9. Accordingly, the appeal is dismissed, along with pending application(s), if any.
SATISH CHANDRA SHARMA, C.J.
SUBRAMONIUM PRASAD, J FEBRUARY 09, 2023 Rahul Signature Not Verified Digitally Signed By:RAHUL SINGH LPA 79/2023 Page 12 of 12 Signing Date:09.02.2023 19:15:44