The Tribunal dismissed a petition under Sections 19 and 20 of the TRAI Act. It held that an application under Section 20 for penalty is not maintainable as the petitioner failed to file an execution application and the respondent sufficiently traversed allegations by citing technical faults.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
6/7/2018
TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL NEW DELHI
DATED 28th MAY, 2010
M.A. No. 38 OF 2010 IN Petition No.219(C) of 2009
Shivaji Cable Network …Petitioner Vs. S.R.Cable TV Private Ltd. …Respondent BEFORE:
HON’BLE MR. JUSTICE S.B.SINHA, CHAIRPERSON HON’BLE MR. G. D. GAIHA, MEMBER HON’BLE MR. P.K.RASTOGI, MEMBER
For Petitioner : Mr. Vikram Singh, Advocate For Respondent : Mr.Kunal Tandon,Advocate
O R D E R
The petitoiner herein has filed this application purported to be under Sections 19 and section 20 of the TRAI Act(hereinafter referred to as 1997 Act) for alleged non-compliance of this Tribunal’s order dated 01.12.2009 passed in Petition No. 219(c) of 2009, whereby and whereunder, it was observed :
“We as at present advised need not to go into the aforementioned rival contentions. Apart from the fact that at least a part of the allegations made in the public notice is not correct as would appear from a bare perusal of the notice dated 22.7.2009, as reproduced hereinabove, it is evident that the same does not meet the requirements of law. It is true, as has been contended by Mr.Kunal Tandon, that the Regulations do not envisage issuance of simultaneous notice both under Clauses 4.1 and 4.3 of the Regulations. But in the event they are issued on different dates the disconnection could be on the expirty of 21 days from the service of the latter notice. In terms of clauses 4.1 and 4.3 of the Regulations three weeks’ notice is required to be served upon a cable operator or a Multi Service Operator, as the case may be. The said term envisages clear three weeks’ notice. No threat, therefore, could have been given that disconnection would be effected within 21 days, which has been
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mentioned in the notice dated 22.7.2009. We, therefore, are of the opinion that the notice served upon the petitioner does not meet the requirements of law.
We, therefore, allow this petition and direct the respondent to continue to grant supply of uninterrupted signals of its channels to the petitioner. The said public notice dated 28.6.2009 as also the notice dated 22.7.2009 are set aside.
It however goes without saying that the respondent may ask the petitioner to supply the number of subscriber base and the areas where it had been carrying on its business so as to enable the respondent, if necessary, to carry on a joint survey.
Before parting, however, we must, place on record that the petitioner, pursuant to order dated 9.11.2009, has deposited a sum of Rs.50000/- in the Registy of this Tribunal. It goes without saying that the petitoner would be entitled to adjust the said amount from its future dues. The Registry may hand over the said sum of Rs.50000/- deposited by the petitioner to it.”
The applicant states that despite the said order, the respondent has disconnected the supply of signals to its network on various days, the details whereof have been stated in para 7 and 9 of the petition, which reads as under :
“7. That it is further respectfully on 25.01.2010, the signals of the petitioner were restored by the respondents. It is stated that on the same date, the petitioner received a letter dated 21.01.2010, in which they have categorically admitted that the signals of the petitioner has been willfully and deliberately disconnected on the fictious ground of survey and chage of cable. It is further stated that the petitioner duly replied to the said letter dated 21.01.2010 vide its letter dated 27.01.2010 and informed the respondent about the subscriber base establised in the joint survey. A copies of the letter dated 21.01.2010 and 27.01.2010 are annexed hereto as Annexure PI and PJ respectively.
Drawing our attention to the reply filed thereto by the respondent to the said application, it was contended that it having failed to traverse specific allegations made in the said paras 7 and 9 of the petition, the same would be deemed to have been admitted in terms of the Order 8 Rule 5 of the CPC and, thus, the resopndent may suitably be punished.
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Paras 7 and 9 to the reply to which our attention has been drawn, are as under :
“7. That the contents of para no. 7 of the application are wrong and denied. It is denied that the repsondent has admitted that the signals were disconnected deliberately as alleged. It is stated that the respondent has all along maintained that the signals were disrupted due to technical fault in the line, which was not in the control of the respondent.
We may place on record that in support of its case, the petitioner has obtained the affidavit of a large number of persons, sample copy whereof contains the following:
The said affidavits have been verified by the deponent in the following terms :
“Verification :
I, Ravindra son of Vijayji, resident of 18, Jansewa Nagar, Indore (MP) aged about 28 years, do hereby verify that the contents of para no. 1 to 3 of the affidavit are true to my knowledge and belief and nothing material has been concealed therefrom.”
Mr. Vikram Singh, the learned counsel appearing for the petitioner would contend that keeping in view of the fact that the
disconnection of the signals of the petitoiner on various days was arbitrary and as the respondent has intentionally and deliberately
violated this Tribunal’s order so as to cause a serious loss to the petitioner’s business, it should be suitably punished.
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In support of the contention that the respondent in view of the statements made in paras 7 and 9 of the reply, must be held to have admited that allegations made in the application; reliance has been placed on Hari Singh V Dharam Singh (AIR 1980 Delhi 316), Asha V Baldev Raj (AIR 1985 Delhi 76), Badat and Co. Vs. East India Trading Co. (1964 4 SCR 19).
Reliance has also been placed on one of the decisions of this Tribunal in Mahadev Cable Net Vs. Star India Pvt. Ltd. in Petition No. 70(c) of 2006 decided on 27.07.2006 for the proposition that an application both under Sections 19 and 20 are maintainable.
Mr. Tandon, the learned counsel appearing on behalf of the respondent, on the other hand, would urge that the respondent has specifically denied or disputed that the respondent has taken recourse to any willfull disobedience of this Tribunal. Our attention in this regard has been drawn to statements made in paras 2 and 3 of the short affidavit :
“2. That I state that I state that the averments and contentions made in the application are wrong and denied. I state that the signal are being continuously supplied to the petitioner and have never been disrupted by the respondent. I further state that the order dated 01.12.2009 has been fully and strictly complied by the respondent. The only occasions on which the signals were disrupted were due to technical faults in the lines of the respondent, which were explained to the petitioner from time to time and also vide letter dated 21.01.2010, which is annexed to the application as Annexure P-7 at page 109. the contents of the letter dated 21.01.2010 are reiterated as true and correct. I further state that signals on 18.01.2010 were disrupted as there was a major fault in one of the underground cabling for a distance of about 2 Kms and the signals were restored on 18.01.2010 itself, immediately after repairing the lines and since then, the petitioner has been receiving signals from the respondent.
The respondent has filed an additional affidavit explaining the said para 3 as under :
“3. I state and reaffirm that the signals were disrupted on the line on 18.01.2010 due to a major fault in one of underground cabling for a distance of about 2 KMs and the signals were restored at 11 PM on 18.01.2010. It is clarified that the signals on the same line continued to get disrupted until 21.01.2010 due to a continuous fault in the line and finally, the fault was completely rectified on 24.01.2010. I state that while the line fault was being rectified, the signals were being switched on from time to time and there was no continuous disconnection but disconnection for the reason stated in the short affidavit as well as in the present
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affidavit. However, after the fault was finally rectified, the signals have been continuously given to the petitioner and are still being given to the petitioner.”
It has also filed a reply to the application filed by the applicant stating as under :
“1. It is further stated that the order dated 01.12.2009 passed by this Hon’ble Tribunal has been fully and strictly complied by the respondent. The only occasions on which the signals were disrupted were due to technical faults in the lines of the respondent, which were explained to the petitioner from time to time and also vide letter dated 21.01.2010, which is annexed to the application as Annexure P-7 at page 109. The contents of the letter dated 21.01.2010 are reiterated as true and correct.
“We, therefore, allow this petition and direct the respondent to continue to grant supply of uninterrupted signals of its channels to the petitioner. The said public notice dated 28.6.2009 as also the notice dated 22.7.2009 are set aside.”
It was urged that the pleadings must be read in their entirety. It was also submitted that there cannot be any doubt or dispute that the respondent has traversed the allegations specifically in the said application.
The Tribunal has passed the aforementioned order dated 01.12.2009 principally on a technical ground that the respondent has
not complied with the requirements of the law as contained in Regulation 4.1 and 4.3 of the Telecommunciations (Broadcasting and Cable Services) Interconnection Regulations 2004 as amended in the year 2006.
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Section 19 of the 1997 Act provides that orders passed by Appellate Tribunal to be executable as a decree of civil court and for the said purpose, it shall have all the powers of a civil court. (emphasis supplied)
The applicant has not filed any Execution Application in the prescribed form, nor any prayer has been made for execution of the decree as provided for under Order 21 of CPC. No occasion, therefore, has arisen for this Tribunal to execute a decree as a civil court as mentioned in section 19 of the 1997 Act.
Section 20 of the 1997 Act on the other hand, confers jurisdiction on this Tribunal to impose penalty on a party to the petition if he willfully fails to comply with the orders of this Tribunal.
Sections 19 and 20 of the 1997 Act, therefore, in our opinion, stand on different footings. Recourse to section 20, of course, can be taken in any exceptional case where the respondent has willfully disobeyed even the final order of this Tribunal but even for the said purpose, we must keep in some essential differences of two nature of jurisdictions, this Tribunal exercises.
The observations made in Mahadev Cable (Supra) by this Tribunal must be considered in the aforemnetioned context, which we may notice :
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This Tribunal as it was noticed hereinbefore in the said judgment has exercised both its jurisdictions under section 19 and 20 differently. However, unfortunately, the essential difference between the two jurisdictions of this Tribunal was not brought to its notice.
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Section 20 can be resorted to even in relation to an interim order.
Mahadev Cable (Supra) was furthermore a gross case where various directions were issued therein. It was a case of enforcing an interim order. The matter had not been finally disposed of.
The order in respect whereof of the provisions of Section 20 of 1997 Act is sought to be invoked, however, is in the nature of a contempt. The powers of Civil Court in that behalf is contained in Order 39 Rule 2 A of the CPC or the provisions of Contempts of Courts Act, 1971.
The contempt jurisdiction of the court being a matter upon which cogzinance thereof has to be taken in a matter between the court and the contemnor. The court is to exercise its extra-ordinary jurisdiction, provided it is found that the respondent is guilty of disobedience of its order willfully.
The respondent in its various affidavits to which we have referred to hereinbefore did not deny or dispute that it had discontinued the supply of signals to the petitoiner’s network but had given an explanation stating as to how the supply of signals were disrupted.
We may in this behalf notice the stand taken by the respondent as far as back as 21.01.2010 through its letter of the said date addressed to the proprietor of the petitioner, stating as under :
“We are in receipt of your letter dated 18.01.2010 for complaints regarding disconnection of signals in your network. In this regard please note that on 10.12.2009 there were line maintenance running on the network by company, because of that reason the signals were disrupted for 1 hrs i.e. from 1300 hrs to 1400 hrs.
Further on 23.12.2009, you have complaint to us by this letter that from 1730 hrs to 1830 hrs again your services have been disrupted. In this connection we would like to make it clear that our end that due to cable cutting happened in the Area, signals were disrupted for the said time. However, our team traces the fault and restores the servies.
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Now on 18.01.2010 you signals were disrupted in the morning because there was major fault occurred in one of our underground cabling on you network. Our technical team is doing survey and very soon we will restore the services on your network, please note that we have to change cable around 2 KMs in your area. We have no such intention to frequenty disrupt any LCO’s services on their network.”
The respondent has no doubt made an error in contending in its short affidavit that there had been a major fault in one of the cable for about 2 kms and the signals were restored on 18.01.2010 itself. This Tribunal however, noticed the same in its proceeding sheet dated 26.02.2010 directing as under :
“As per our instructions vide our order dated 23.02.2010 an affidavit has been filed by the respondent in which it has been mentioned that the signals were disrupted because of major fault in one of the underground cabling for a distance of about 2 Kms and the signals were restored on 18.01.2010 itself. It is brought to our notice by the learned counsel for the petitioner that vide Respondent’s letter dated 21.01.2010, the respondent itself has admitted that their technical team is doing survey and very soon they will restore the services.
There appears to be contradiction in the affidavit filed by the respondent on 25.02.2010 about the date on which cable has been repaired and signal restored. Let affidavit be filed by the respondent on this discrepancy by 05.03.2010.”
Pursuant to and in furtherance of the said order, the respondent filed an additional affidavit clarifying the position stating as under
:
“3. That I also state that the respondent had, vide letter dated 20.01.2010, also called the petitioner to assist the respondent in conducting the joint survey with them but the respondent had not come forward for the same and has not paid any money towards the signals that are being received continuously by the petitioner. It is stated that as on date, a sum of Rs. 9,38,160/- is due and payable by the petitioner to the respondent, which the petitioner evading to pay.”
Mr. Singh may not be entirely correct in terms of Order 8 Rules 3, 4, 5 of the CPC are applicable in this case. They are not
applicable in relation to the pleadings of the application under section 20, which is not to be contrued to be a pleading in an original petition.
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Furthermore, as has rightly been submitted by Mr. Tandon that pleadings must be considered in their entirety. An explanation should not be taken as an admission on the part of the defaulter without considering his pleadings as a whole. The respondent has sufficiently traverced the allegations made in the petition.
The decisions cited by Mr. Singh, therefore, in our opinion, are not applicable.
Furthermore, all affidavits of the witness as noticed hereinbefore do not subserve the requirements of Order 19 Rule 3 of the CPC as there is such no relevance which can be placed thereupon. See Smt. Savithramma Vs. CECIL Naronha and Anr 1988 (Supp) SCC 655.
The allegation made by the petitioner may constitute a subsequent cause of action for which no action need be taken in view of the decision of the Supreme Court of India in J.S. Parihar Vs. Ganpat Duggar and others (1996) 6 SCC 291, wherein it has been held as under :
“6. The question then is : whether the Division Bench was right in setting aside the direction issued by the learned single Judge to redraw the seniority list. It is contended by Mr. S.K. Jain, learned Counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991 Subsequently promotions came to be made. The question is : whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the willful violation of the order. After re-exercising the judicial review in contempt proceedings, afresh direction by the learned single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division
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Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the single Judge, the Division Bench corrected the mistake committed by the learned single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned single Judge when the matter was already seized of the Division Bench.”
We, therefore, are of the opinion, in the facts and circumstances of the case that exercise our jurisdiction under section 20 of the
1997 Act as amended in the year 2000 for non-compliance of our order is not maintainable. It is dismissed accordingly.
……………......, J (S.B.Sinha) Chairperson ……………...... (G. D. Gaiha) Member
……………..... (P.K. Rastogi) Member
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3 issues framed by the court
Whether an application under Section 20 of the TRAI Act is maintainable for non-compliance of a final order.
Whether admissions can be inferred from specific paragraphs in the respondent's reply when pleaded in their entirety.
Whether the respondent's explanation of signal disruption constituted willful disobedience warranting penalty.
Colour shows how this judgement treated each authority
Hari Singh V Dharam SinghReferred¶44
Hari Singh V Dharam Singh (AIR 1980 Delhi 316) · Who else cites this
Asha V Baldev RajReferred¶44
Asha V Baldev Raj (AIR 1985 Delhi 76) · Who else cites this
Badat and Co. Vs. East India Trading Co.Referred¶44
Badat and Co. Vs. East India Trading Co. (1964 4 SCR 19) · Who else cites this
Mahadev Cable Net Vs. Star India Pvt. Ltd.Explained¶45
Mahadev Cable Net Vs. Star India Pvt. Ltd. in Petition No. 70(c) of 2006
Smt. Savithramma Vs. CECIL NaronhaDistinguished¶114
Smt. Savithramma Vs. CECIL Naronha and Anr 1988 (Supp) SCC 655 · Who else cites this
J.S. Parihar Vs. Ganpat DuggarFollowed¶115
J.S. Parihar Vs. Ganpat Duggar and others (1996) 6 SCC 291 · Who else cites this
1 provisions across 1 enactments
Shivaji Cable Network
S.R. Cable TV Private Ltd.
S.B. Sinha
G. D. Gaiha
P.K. Rastogi
As recorded by the court registry
A petition before the Telecom Disputes Settlement and Appellate Tribunal in a broadcasting or cable-distribution dispute.
Judgements on the same questions, provisions and authorities, from every court
