Appellate Tribunal dealt with review application seeking relaxation of verdict mandating payment of subscription fees based on 30,000 subscribers. Court directed interim payment and inviting reply on subscriber base figures.
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
NEW DELHI
DATED 28TH JULY, 2011
R.A. No. 7 of 2011
IN
Petition No. 30 (C) of 2010
ASSAM CABLE COMMUNICATIONS ….
Applicant/Petitioner
Vs.
ZEE TURNER LTD.
….
Respondent
BEFORE:
HON’BLE MR. JUSTICE S.B.SINHA, CHAIRPERSON HON’BLE MR. G. D. GAIHA, MEMBER
For Petitioner
Mr. Ramji Srinivasan, Senior Advocate Ms. Kanika Agnihotri, Advocate Mr. Vaibhav Agnihotri, Advocate
For Respondent
Mr. Maninder Singh, Senior Advocate Mrs. Prathiba M. Singh, Advocate Mr. Tejveer Singh Bhatia, Advocate Mr. Vadivelu Deenadayalan, Advocate
O R D E R
and decree of this Tribunal dated 28.4.2011 whereby and whereunder
Page 1 of 26
while dismissing the petition and allowing the counterclaim filed by the respondent, it was directed as under :-
“ We, therefore, are of the opinion that the petitioner is bound to restore the benefits derived by it to the respondent by paying the amount as claimed by the respondent, on the basis of a subscriber base of 30,000 keeping in view the parity so far as the ESPN and Star Television is concerned.
We, therefore, while dismissing the petition, direct the petitioner to pay to the respondent the amount of subscription fees calculated on a subscriber base of 30,000 from the date of filing of this petition till date. This order shall, however, not exclude the parties to enter into a fresh negotiation. For the purpose of entering into a new agreement, they may meet at the respondent’s office at Kolkata, wherein it would be open to the petitioner to bring to its notice any subsequent event. We hope and trust that the respondent shall enter into the negotiation with the petitioner with an open mind and keeping in view the ground realities.”
We may notice the said orders :-
Page 2 of 26
25.05.2011
“ Learned Counsel for the appellant requests for two days’ time to seek instructions. List on Monday the 30th May, 2011.”
30.05.2011
“After arguing the case for some time, Shri U U Lalit, learned senior counsel appearing for the appellant made a request that his client may be permitted to withdraw the appeal with liberty to seek review of the order under challenge.
The request of the learned senior counsel is accepted and the appeal is dismissed as withdrawn with liberty in terms of the prayer made.”
Notices purported to have been issued by respondent subsequent to the passing of the decree i.e. on or about 11.5.2011 and 13.6.2011, have also been annexed.
Page 3 of 26
substantial question of law and furthermore it raised a limited question as would appear from the said order dated 30.5.2011, the applicant in this review application has taken as many as 20 grounds describing the judgment under review to be the ‘impugned judgment’.
(i) Direction to the review petitioner to pay the subscription fee on a subscriber base of 30,000 for which an agreement was said to have been entered into with Star Den was not legally correct in view of a judgment of this Tribunal dated 01.02.2011 in Petition No. 345 (C) of 2011, wherein it was held that declaration to one broadcaster should not be considered to be a declaration to another broadcaster.
Page 4 of 26
subscriber base came down to less than 50 % of the original subscriber base.
Page 5 of 26
Page 6 of 26
circumstances attending thereto. The said purported Memorandum of Understanding by and between petitioner and ESPN as also Star Den and petitioner have been annexed for the first time with the review application which cannot be considered at this stage.
Page 7 of 26
directions issued by this Tribunal are independent thereof.
By an interim order dated 11.02.2010, petitioner was directed to deposit a sum of Rs.25 lacs. During pendency of this petition, the parties had also met for reconciliation of their accounts. This Tribunal in its order dated 22.3.2010 observed that although the MSO must pay the monthly subscription fee on regular basis keeping in view the fact that parties intended to settle the matter amicably.
Page 8 of 26
The respondent, however, had time and again been pointing out that the interim order of this Tribunal had not been complied with. Amongst others in our order dated 22.3.2010, the said fact has been noticed.
The said document was, thus, not to be exhibited. Unless a document is proved, it cannot be taken on record. It is true that sometimes a document may be produced in a sealed cover as the
Page 9 of 26
same may contain confidential informations but in this case, if Mr. Srinivasan’s submissions are to be accepted, petitioner intended to put the same in evidence, which would have been possible only in the event execution thereof was proved.
“The entire case of the respondent is based on the declaration of the Petitioner to Star. However, Star itself has afforded the Petitioner the opportunity to renegotiate the subscription figures. The subscription fee payable by the Petitioner to Star is for a subscriber base which is less than half of what it was earlier. It is the copy of this agreement entered into by the Petitioner alongwith a few other similar documents that are sought to be produced before this Hon’ble Tribunal in a sealed envelope.
It is humbly submitted that the general practice in the industry is that representative of the broadcaster take the signed copy of the Agreement from the Petitioner for signatures by the Broadcaster. Even in the Agreement for reduced subscriber base, the Agreements were taken by the Broadcaster after the same were signed by the Petitioners representative. Therefore the Petitioner had to request the broadcaster to provide the Petitioner with a signed copy of the same. The latest of the Agreements has been signed on 7th June 2010 and the Agreements are being produced before this Hon’ble Tribunal on the earliest opportune moment after the signed copies of the same have been received from the broadcaster.”
(Underlining is ours)
Page 10 of 26
Page 11 of 26
Page 12 of 26
“ Quantum of higher subscription fee is determined not on the basis of number of subscribers of an MSO but on
Page 13 of 26
several facts like viewership which depends on the popularity of a channel for different segment of society in a particular area.”
Even the said decision or for that matter any other decision was cited at the Bar.
We would, however, have no hesitation to state that a mistake has been committed by us in taking note of the cross examination of Shri Tarun Saha in as much as the word “not” has not been reproduced but the same having been done even before the framing of issues, evidently the same had been considered only as a piece of evidence which having regard to the materials on record cannot be and infact has not been held to have resulted in an erroneous finding.
Page 14 of 26
This Tribunal exercises a limited jurisdiction while exercising its power of review.
In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and Others reported in (1979) 4 SSC 389 , the Supreme Court of India, it was held as under :-
“ It is true as observed by this Court in Shivdeo Singh V. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of
Page 15 of 26
the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate Court to correct all manner of errors committed by the subordinate Court.”
“ A review is not an appeal in disguise. A petition for review would be maintainable inter alia when there is an error apparent on the face of the record. Even any other sufficient reason would mean a reason sufficient on grounds which is at least analogous to those specified in Rule 1 of Order 47 of the Code of Civil Procedure.”
Recently in R.A. No. 2 of 2011 in Petition No.205(C) of 2009 SCOD 18 Networking Pvt. Ltd. Vs. Sahara Sanchar Ltd. and Anr. and R.A. No. 1 of 2011 in Petition No.245 (C) of 2009 Hathway Cable & Datacom Ltd. Vs. Sahara Sanchar Ltd. & Anr, it was held :-
“ 11. The learned Senior Counsel urged that a judgment and decree passed by this Tribunal in appeal lies before the Supreme Court of India only on a substantial question of law and in that view of the
Page 16 of 26
matter, the Review jurisdiction should be exercised liberally. We do not agree. If by reason of a Statute, no provision for an appeal on fact has been provided for by the Parliament in its wisdom or a limited appeal has been provided for, the same by itself would not imply that the power conferred on a Court of Law and/or any other authority should be treated to be arbitrary or ultra vires Article 14 of the Constitution of India. It has been so held by the Supreme Court of India in Organo Chemical Industries Vs. Union of India 1979 Vol. 4 SCC page 573 in the following terms :-
“15. In this connection, it was also urged that the absence of any provision for appeal, leaves the defaulting employer with no remedy. The conferral of arbitrary and uncontrolled powers on the Regional Provident Fund Commissioner to quantify damages, it is said, without a corresponding right of appeal or revision makes the provision contained in Section 14-B per se void and illegal and it is liable to be struck down on that ground. We are afraid the contention is wholly devoid of substance. Mere absence of provision for an appeal does not imply that the Regional Provident Fund Commissioner is invested with arbitrary or uncontrolled power, without any guidelines. The conferral of power to award damages under Section 14-B is to ensure the success of the measure. It is dependent on existence of certain facts; there has to be an objective
Page 17 of 26
determination, not subjective. The Regional Provident Fund Commissioner has not only to apply his mind to the requirements of Section 14-B but is cast with the duty of making a “speaking order”, after conforming to the Rules of natural justice.
16. This Court has repeatedly laid it down that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such high authority will not be abused.”
12. It is, however, true that in terms of Section 16 of the Telecom Regulatory Authority of India Act, 1997, this Tribunal is not bound by the procedure laid down by the Code of Civil Procedure. Although this Tribunal can regulate its own procedure, it is now trite that ordinarily it would be governed by the principles contained in the Code. Even otherwise, the power of review, it is well known, cannot be equated with an appellate power.
14. This Tribunal in R.A. No. 1 of 2010 (Interconnection Cable Communications Pvt. Ltd. Vs. M/s. Zee Turner Ltd. & Others) opined :-
“A review is not an appeal in disguise. A petition for review would be maintainable inter alia when there is an error apparent on the face of the record. Even any other sufficient reason would mean a reason
Page 18 of 26
sufficient on grounds which is at least analogous to those specified in Rule 1 of Order 47 of the Code of Civil Procedure.
In Sow Chandra Kante and Another Vs. Sheikh Habib – 1975(4) SCC 674, it has been held as under :-
“A review of judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial falliability. A mere repletion, through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.”
15. It is a trite law that the general principles laid down in the Code of Civil Procedure should be applied even by a Tribunal in the absence of special provision or circumstances. A departure can be made by this Tribunal only if an exceptional case is made out and not otherwise.
The Parliament by reason of Code of Civil Procedure Act (Amendment Act) in 1976 had added an ‘Explanation’ whereby the power of review has further been curtailed.”
very relevant for the purpose of refusing to exercise the Tribunal’s jurisdiction in its favour but the same in our opinion is relevant
Page 19 of 26
for the purpose of considering the backdrop of events in which the judgement had been delivered and the review application has been filed.
Page 20 of 26
subscribers i.e. whether it is more than 12,000 or less than the same. Faced up with the said situation, Mr. Srinivasan submitted in its M.A. the review applicant at least had stated that from May, 2010 onwards the subscriber base has reduced to less than 50% so far as the Star Den is concerned.
Page 21 of 26
contention that its subscriber base had come down to 849 and if that was to be considered alongwith its contention that some other LCOs had even then gone out of its network, its subscriber base would have become Zero.
Page 22 of 26
A specific ground has been raised and in fact a comment was made by Shri Ramji Srinivasan that this Tribunal has not considered the evidence of Shri Raghvendra Singh which might not have been done keeping in view the other materials which were on the record and in any event we cannot go into the merit of the matter. The same does not constitute an error apparent on the face of the record.
We really fail to understand as to how in a review application some other new materials can be brought on record which is sought to be done by the petitioner as for example that the network of Nirman Associates having taken over by some of the LCOs of the petitioner without even stating that those facts were not known to it earlier.
Page 23 of 26
Moreover, review of a judgment need not be kept confined to the error apparent on the face of the record or discovery of new and important matter or evidence which despite due diligence was not within the knowledge of the petitioner.
In this case this Tribunal has not refused to consider the difficulties of the petitioner in the matter of entering into a new agreement, which would be evident from the concluding part of the judgment.
The only question which would arise is as to whether we should allow the decree to remain operative so as to bind the petitioner to pay a sum of about Rs. 6 Cr. 45 Lacs (exclusive of taxes) from April, 2010 till further orders despite observations made in our Judgement dated 28.4.2001.
We, therefore, are of the opinion that an opportunity should be granted to the petitioner on the limited question of its subscriber base during pendency of the petition.
Page 24 of 26
It will be open to respondent keeping in view the fact that the petition has been dismissed to discontinue supply of signals to the network of the petitioner’s network. In the event, however, respondent continues to supply signals of its channels to the petitioner’s network, petitioner must pay up to the respondent at least a sum of Rs. 10 lakhs per month.
It is made clear that in the event this review application is dismissed, the petitioner would be bound by the directions of this Tribunal and/or any other or further order which may be passed.
Page 25 of 26
Let reply on the said issue be filed within two weeks. Rejoinder thereto two weeks thereafter.
Put up the matter for hearing on 02.9.2011.
……………..... (S.B. Sinha) Chairperson
rkc
Page 26 of 26
2 issues framed by the court
Whether the Tribunal could relax the decision on the subscriber base of 30,000 in tenore of a review application.
Whether new materials such as subsequent agreements can be taken into account in a review petition.
Colour shows how this judgement treated each authority
Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and OthersReferred¶97
(1979) 4 SSC 389
Shivdeo Singh V. State of PunjabReferred¶97
Shivdeo Singh V. State of Punjab
SCOD 18 Networking Pvt. Ltd. Vs. Sahara Sanchar Ltd.Referred¶103
SCOD 18 Networking Pvt. Ltd. Vs. Sahara Sanchar Ltd.
Hathway Cable & Datacom Ltd. Vs. Sahara Sanchar Ltd.Referred¶103
Hathway Cable & Datacom Ltd. Vs. Sahara Sanchar Ltd.
Organo Chemical Industries Vs. Union of IndiaReferred¶103
Organo Chemical Industries Vs. Union of India 1979 Vol. 4 SCC 573 · Who else cites this
Interconnection Cable Communications Pvt. Ltd. Vs. M/s. Zee Turner Ltd.Referred¶111
Interconnection Cable Communications Pvt. Ltd. Vs. M/s. Zee Turner Ltd.
Sow Chandra Kante and Another Vs. Sheikh HabibDistinguished¶116
1975(4) SCC 674 · Who else cites this
Assam Cable Communications
Zee Turner Ltd.
S.B. Sinha
G. D. Gaiha
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
