Telangana High Court
M/S Rayudu Vision Media Ltd. vs The Ministry Of Information And ... on 3 June, 2024
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT PETITION Nos.6732 AND 8625 of 2024
COMMON ORDER:
As the parties in both these writ petitions are one and the same and the issue involved is intrinsically interconnected, these writ petitions are taken up, heard together and are being disposed of by this common order.
2. Writ Petition No.6732 of 2024, under Article 226 of the Constitution of India, is filed by the petitioner, seeking the following relief:
"....to Issue a Writ in the nature of mandamus or any other appropriate Writ, Direction or Order against the Respondent, declaring the Order vide F.No.1404/6(ii)/2006-TV(I) Vol.III.Part Dt. 06.03.2024 of the respondent wherein the petitioner's permission to uplink and downlink of the News & Current Affairs TV Channel namely 'Prime9 News' permitted vide Ministry's Letter No.1404/6(ii)/2007-TV(I) dated 04.12.2007 (Registration number 108/1/2007-TV(I)) is revoked with immediate effect and the name of the Channel is removed from the list of TV channels permitted by the Ministry as illegal, arbitrary, unilateral and against to the principles of natural justice and also in violation of the fundamental rights of the Petitioner under Article 19(1)(a) of the Constitution of India and in violation of Section 20 of the Cable Television (Networks) Regulation Act, 1995 one without authority and lack of jurisdiction set aside the same and consequently direct the respondent to restore the permission of the petitioner to run the News And Current Affair TV channel and to pass such other and further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case....."
3. Writ Petition No.8625 of 2024, under Article 226 of the Constitution of India, is filed by the petitioner, seeking the following relief:
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"....to issue a Writ in the nature of mandamus or any other appropriate Writ, Direction declaring the action of the respondent in not considering the representation through mail Dt. 22.03.2024, 23.03.2024, 26.03.2024 under the guise of proceedings order 15.03.2024 File No.1404/6(ii) 2006-TV (1). Vol. III part, referring to the orders in W.P No.4580 of 2024 in compliance to the orders stated that since the respondent has already cancelled the permission of the channel Prime 9 news by the order Dt.06.03.2024, the application for change of name and logo of the said channel has become infructuous, though this Hon'ble Court suspended the cancellation of the proceedings Dt.06.03.2024 issued by the Respondent vide W.P No.6372 of 2024 Dt.18.03.2024 as illegal, arbitrary, unilateral and against to the principles of natural justice, and also in violation of the fundamental rights of the Petitioner under Article 19(1)(a) of the Constitution of India and consequently declare that the petitioner is entitled to Use the Name and Logo of RNN for uplinking and downlinking of its news and current affairs channel and to pass such other and further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case...."
4. The brief facts that are necessary for disposal of the present writ petitions are stated as under:
a) The petitioner-M/s.Rayudu Visions Limited (M/s. RVML) is the company incorporated under the provisions of Companies Act, 1956 on 08.04.2005 to run the TV channel under the name and style "RTV". It is stated that the petitioner had obtained permission vide Registration No.108/1/2007-TV-1 for uplinking and downlinking of news and current affairs to its TV channel (RTV) vide Proceedings in Letter No.1404/6(II)/2007-TV1 dated 04.12.2007 issued by the respondent. The permission was granted to the petitioner under the provisions of Cable Television Networks (Regulation) Act 1995 and the Rules framed there under along with the Policy Guidelines, and terms and conditions as specified in the permission order. The said permission was renewed from time ::3::
to time and the same is valid upto 03.12.2027. The respondent i.e., Ministry of Information and Broadcasting has framed policy guidelines for downlinking of Television Channels in Proceedings vide File No.13/2/2002-BP&L-BC-IV dated 11.11.2005. As per the said Policy, the applicant company must either own the channel it wants downlinked for public viewing, or must enjoy, for the territory of India, exclusive marketing/distribution rights for the same, inclusive of the rights to the advertising and subscription revenues for the channel and must submit adequate proof at the time of application and also the applicant must satisfy minimum net worth as prescribed under the guidelines. The guidelines issued in the year 2005 were amended from time to time and consolidated guidelines were notified on 05.12.2021 and 09.11.2022 in supersession of all previous guidelines. The petitioner was granted permission on 04.12.2007 to uplink and downlink news and current affairs in TV channel namely RTV (M/s.RVML). After renewal of permission, the petitioner was granted permission on 08.04.2021, for change of name and logo from RTV to Prime9 News, wherein NOC for use of said logo was given to M/s. Samhitha Broadcasting Private Limited (M/s.SBPL). Thereafter the petitioner company took the decision to change the logo from Prime9 News to RTV in ::4::
the original name of the petitioner while terminating the agreement with M/s.SBPL on 26.11.2022. It is stated that the petitioner company had used the temporary arrangements with M/s.SBPL for using its infrastructure facilities, in view of the delay on the part of the respondent for permitting the petitioner to use the change of logo. While the matter stood thus, the respondent has issued proceedings dated 07.07.2023 and revoked the permission granted to the petitioner for its permitted channel Prime9 News for alleged violation of the policy guidelines 2022, on the ground that the petitioner has allowed the operation of the channel to be run by M/s. SBPL without obtaining prior permission from the respondent contrary to the Clause 25(1)(xiii), 25(2), 26(2) of the Policy Guidelines, 2022. It is stated that questioning the said revocation orders, petitioner filed W.P.No.18617/2023 on the file of this Court and this Court vide order dated 14.09.2023 in I.A.No.3 of 2023 granted interim order directing the respondents therein to consider the change of name of logo of the petitioner "RXMTV" taking into consideration of the interim orders passed in I.A.No.6546/2023 in Commercial I.P.Suit No.6543/2023 on the file of Bombay High Court. In the meanwhile, after contest, W.P.No.18617/2023 was allowed by this Court vide order dated 29.01.2024 on the ground that ::5::
petitioner was not heard prior to passing of impugned order and the orders dated 07.07.2023 is in clear violation of audi alteram partem rule and the matter was remanded for fresh consideration permitting the petitioner to put-forth all the contentions advanced in the writ petition. Alleging that the respondent has not implemented the directions issued by this Court in I.A.No.3 of 2023 in W.P.No.18617 of 2023, the petitioner filed W.P.No.4580/2024 on the file of this Court and the same was disposed of by this Court vide order dated 21.02.2024 directing the respondents to consider the representations and emails submitted by the petitioner seeking change of name and logo from Prime9 News to RNN or RXMTV or R News within a period of two weeks. In terms of the orders passed by this Court, the respondent passed orders in File No.1404/6(ii) 2006-TV(I). Vol.III part dated 15.03.2024 inter alia stating that respondent has cancelled the permission granted to the petitioner on 06.03.2024 for change of logo to the Prime9 News and there is no necessity to pass any orders on the change of name of logo. Questioning the cancellation order dated 06.03.2024 passed in File No.1404/6(ii)/2006-
TV(I) Vol.III.Part, the petitioner filed W.P.No.6732 of 2024 and challenging the rejection orders dated 15.03.2024 passed in File No.1404/6(ii) 2006-TV (1). Vol. III part, with regard to the ::6::
change of name of logo, the petitioner filed W.P.No.8625 of 2024.
5. Mr. M. Surender Rao, learned Senior Counsel representing Sri G.V.L.Murthy, learned counsel for the petitioner strenuously argued that alleged violations pointed out by the respondent in the impugned order dated 06.03.2024 relates back to the period from 05.12.2011 to 09.11.2022 and for said violation, the respondent can exercise the action as permissible under the Policy Guidelines dated 05.12.2011, and the respondent is not having any power to invoke the Ministry of Information and Broadcasting Guidelines, 2022 ('Policy Guidelines, 2022' for brevity) which came into force on 09.11.2022 and the respondent cannot resort to impose penalties in the Policy Guidelines issued in the year 2022 nor can it seek help of Clause 32 of the Policy Guidelines, 2022. The learned Senior Counsel while referring to Clause 5.9 of Policy Guidelines 2011 and Clause 26(2) of Policy Guidelines, 2022 stated that both are different and distinct and further, submits that Policy Guidelines 2011 do not insist performances by the petitioner/ permission holder. The learned Senior Counsel also submitted that the petitioner terminated the time slot agreement entered with M/s.SBPL on 26.11.2022 and communicated the same to the respondent through e-mail. The learned Senior Counsel further contended that in view of unforeseen situations created by the respondent in not taking decision on the ::7::
change of name and logo, on compulsion the petitioner has entered into time slot agreement with M/s.SBPL that too without knowing the consequences. The learned Senior Counsel further contended that the respondent, after arriving to a satisfaction that the petitioner possessed all the infrastructure, renewed the permission. Therefore, a presumption has to be drawn that the respondent is having acquiescence in the actions or violations, if any, of the petitioner. It is also stated by the learned Counsel that a bare perusal of the impugned order would reveal that the respondent had mala fide intention to cancel the permission of the petitioner on one pretext or other. To substantiate his contentions, the learned Senior Counsel has relied upon the judgments of Hon'ble Apex Court in Assistant Commissioner of Kottayam vs. Esthappan Cherian and another 1 and Orxy Fisheries Pvt. Ltd. Vs. Union of India and others 2. The learned Senior Counsel has placed much reliance on the recent judgment of Hon'ble Supreme Court in Madhyamam Broadcasting Limited vs. Union of India and others 3 and Modern Dental College & Research Centre v. State of Madhya Pradesh 4 for procedural guarantees on the application of the proportionality standards and submitted that the measure restricting a right must have legitimate goal, suitable means and must be least restrictive 1 AIR 2021 SC 4214 2 2010 AIR SCW 7105 = (2010) 13 SCC 427 3 2023 LiveLaw (SC) 269 4 (2016) 4 SCC 346 ::8::
and equally effective and measure must not have disproportionate impact on the right holder. While relying on the above principles, the learned Senior Counsel has submitted that the respondent is required to discharge the burden of proving that the action is indeed in furtherance of the legitimate aim to least restrictive means for restraining fundamental rights. It is also contended by the learned Senior Counsel that the contents of show cause notices dated 06.06.2023, 26.04.2023 and 13.06.2023 issued by the respondent would establish the predetermined notion of the respondent. It is further submission of the learned Senior Counsel that in similar circumstances, the respondent has imposed the punishment of suspending the permission for a period of 30 days to M/s.Zora Traders Ltd, for violation of Clause 25(1)(ii) and Clause 26(2) of the Policy Guidelines 2022. In the case of the petitioner, the respondent with a mala fide intention has imposed, the maximum penal action of cancelling/revocation of permission due to extraneous reasons and the said action on the part of respondent is discriminatory, arbitrary, illegal, bias, unfair and violation of principles of natural justice and also violation of Article 19(1)(a) and 300-A of the Constitution of India and the said actions on the part of respondent is liable to be interfered under Article 226 of the Constitution of India.
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6. Per contra, Mr.B.Narsimha Sharma, learned Additional Solicitor General of India representing the respondent opposed the contentions raised by the petitioner and vehemently contended that the petitioner was granted permission to uplink and downlink a News and Current Affairs TV Channel namely, "Prime9 News" (earlier RTV) vide letter No.1404/6(ii)/2006-TV(1) dated 04.12.2007 under the Policy Guidelines, 2005. The permission of the channel was further renewed on 18.03.2021 for a period upto 03.12.2027. At the time of renewal, the company did not brought out the fact of outsourcing the core activities of the channel. The petitioner had given an undertaking that it will abide by all terms and conditions of the permission letter and the applicable Uplinking Downlinking Guidelines. It is further submitted that the respondent revoked the permission granted to the petitioner for violation of provisions of Policy Guidelines 2022 by illegally allowing the operation of the channel to be run by non-permitted entity namely M/s. SBPL without obtaining prior permission from the respondent as required under the Rules in force. The learned Senior Counsel further argued that the impugned order dated 06.03.2024 passed by the respondent is preceded by the Show Cause Notice and also affording personal hearing and the same does not suffer with any legal infirmities warranting interference by this Court in exercise of Summary Jurisdiction. The learned Senior Counsel further contended that this ::10::
Court in exercise of supervisory jurisdiction cannot convert itself into a court of appeal and re-appreciate or evaluate evidence and come to a different conclusion of its own. It is further stated that the petitioner has admitted in the written representation dated 21.01.2024 that it has violated the Clause 32 of the Policy Guidelines, 2022 and transferred the channel (Prime9 News) to M/s.SBPL without the prior permission of Ministry. It is also stated that from 16.10.2018 to 18.02.2022, the agreement entered by the petitioner company with M/s. SBPL is subsisting and for the above said period, company continuously violated the Clauses 11 and 32 of the Policy Guidelines 2011 and 2022. The learned Senior Counsel while relying upon the terms and conditions, has stated that under Clause 26(2) of the Policy Guidelines 2022, the Ministry is having the right to suspend the permission of a channel for a specified period or cancel its permission in the interest of national security to prevent its misuse, including where the company/LLP is found to have misused the permission by authorising or enabling or contracting out to any other person the operations or other core functions/activities of the channel through any explicit or implicit agreement or arrangement. Since the petitioner herein has entered into time slot agreement with third parties, the petitioner is not entitled for equitable relief.
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7. It is also further contended by the learned Senior Counsel that the time slot agreement dated 16.10.2018 entered by the petitioner with M/s. SBPL defined time slot, which means time allotted by the company to customer for the duration of 23 Hours 55 Minutes every day, during which customer will provide content to be aired and will also have marketing, Distribution and Promotion rights for the Air Time. The petitioner channel has contracted out the core functions of content creation to M/s. SBPL (customer) for 23 Hours 55 Minutes per day and retained only 5 minutes of air time, which clearly establishes that the petitioner has transferred all his rights under license/permission to M/s. SBPL. It is submitted that the petitioner during the personal hearing on 21.02.2024 had submitted written statement stating that the channel is off-air and the channel content has stopped on 18.02.2024 midnight as they had severed their ties with M/s. SBPL. Further, the ledger account of M/s SBPL also shows that the petitioner company was receiving monthly payment from M/s.SBPL till 17.02.2024. It is also submitted that the Security clearance from Ministry of Home Affairs (MHA) is an essential condition for continuation of permission and in the instant case, the petitioner-company has allowed its News and Current Affairs channel 'Prime9 News' to be run by a non-permitted and non-Security cleared entity namely 'M/s. SBPL'.
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8. The learned Senior Counsel Mr.B.Narsimha Sharma, further submitted that the company could not provide proof of incurring the expenses on account of salary of employees, rent of studio, electricity, leased line expenses and expenses on account of fixed assets as well as renting the studio from M/s.SBPL. The petitioner-
company was not able to provide any documentary evidence that it has editorial and management control on the TV channel 'Prime9 News'. The company never intimated to the respondent earlier that they had terminated the agreement with M/s SBPL. Only on the date of personal hearing on 21.02.2024, the company representative informed that it has severed its ties with M/s.SBPL w.e.f. 18.02.2024 by terminating the Time Slot Agreement.
9. The learned Senior Counsel further contended that the action of the Ministry for not changing the name and logo, is not deliberate. The petitioner has violated Clause 26(2) of the Policy Guidelines 2022, which clearly states that "The Ministry shall have the right to suspend the permission of a channel for a specified period or cancel its permission in public interest or in the interest of national security to prevent its misuse, including where the company/LLP is found to have misused the permission by authorizing or enabling or contracting out to any other person the operations or other core functions/activities of the channel through any explicit or implicit agreement of arrangement, or there is a substantive change in ::13::
management and control over the company/LLP without prior permission of the Ministry, and the company or the LLP shall immediately comply with such directives". The petitioner is free to carry its trade in running the TV Channel subject to complying the terms and conditions of the license/permission order and the Policy Guidelines. Here, the core functions/activities of the channel 'Prime9 News' were being illegally run by a non-permitted entity (M/s.SBPL). Since the petitioner has transferred the channel in contravention of the terms and conditions of the license/permission order and as the authority has exercised its power of revocation of license by following the principles of natural justice, the same would not suffer from vice of arbitrariness and does not amount to mala fide or motivated. The petitioner, who is seeking to invalidate the impugned order of revocation, must establish the charge of bad faith or bias, or misuse of the powers by the Government. The impugned order of revocation ex facie shows breach of conditions and the same does not require interference by this Court exercising the power of judicial review.
10. Considered the submissions of the learned counsel appearing for the respective parties and perused the record.
11. The petitioner-company (M/s. Rayudu Vision Media Limited), which was incorporated under the provisions of Companies Act, 1956 was granted permission for uplinking News and Current Affairs ::14::
TV Channel, namely 'RTV' vide proceedings No.1404/6(II)/2007-TV1 dated 04.12.2007 subject to condition that the Company would generate/develop its own content for news and current affairs and would not source it from any third party without prior approval of the respondent and the permission granted is valid only for a period of five years. In supersession of the earlier Policy Guidelines issued in the year 2005, the Government had issued amended Policy Guidelines on 05.12.2011. As per Clause 10.3 of the Amended Guidelines, 2011, the renewal will also be subject to the permission holder's acceptance of all the terms and conditions of the permission as the Government may prescribe by way of Policy pronouncements from time to time. Clause 11 of the said Guidelines, specifically states that the permission holder shall not transfer the permission without prior approval of the Ministry of Information and Broadcasting. In supersession of all earlier Guidelines, the Government framed consolidated Guidelines in File No.1503/21/2017-TV-1 dated 09.11.2022, which came into force with effect from 09.11.2022. Under Clause 5 of the Consolidated Policy Guidelines, 2022, the Company/ LLP is permitted to make an application for renewal of permission. Clause 26(2) of the said Guidelines, reads as follows:
"(2) The Ministry shall have the right to suspend the permission of a channel for a specified period or cancel its permission in public interest or in the interest of national security to prevent its misuse, including where the company/LLP is found to have misused the permission by ::15::
authorizing or enabling or contracting out to any other person the operations or other core functions/activities of the channel through any explicit or implicit agreement or arrangement, or there is a substantive change in ownership of the company/LLP leading to complete change in management and control over the company/LLP without prior permission of the Ministry, and the company or the LLP shall immediately comply with such directives."
12. While the matter stood thus, a show cause notice dated 26.04.2023 was issued by the respondent as to why permission granted to the petitioner company for the channel 'Prime 9 News' should not be revoked for violation of Policy Guidelines 2022 by submitting forged documents for change of logo and further allowing operation of the channel Prime9 News to be run by M/s. SBPL, without permission of the respondent. Further, the petitioner was directed to submit all its bank statements from the Financial Year 2018-19 onwards and also furnish copy and nature of agreement, entered with M/s.SBPL. After receipt of the said show cause notice, the petitioner has submitted an explanation dated 10.05.2023 inter alia stating about the change of ownership of the logo of Prime9 News and the arrangement made with M/s.SBPL and also bank statements for the Financial Years 2018-19 to 2022-2023. A detailed enquiry was conducted on the allegations set out in the show cause notice. The respondent found that the change of logo of Channel "Prime9 News" was approved by the Ministry on 04.01.2023 and the petitioner made an application on 07.02.2023 on the file of Trademark Authority for change of proprietorship of said logo vide ::16::
Application No.5538744 dated 21.07.2022 and violated the Clause 6(1)(b) of the Policy Guidelines and after conducting a detailed enquiry, passed orders in File No.1404/6(ii)-2006-TV-1 Vol.II dated 07.07.2023, in exercise of powers conferred under Clause 25(1)(xii), Clause 25(2) and Clause 26(2) of the Policy Guidelines, 2022 and with the approval of the Competent Authority, the permission to uplink and downlink of the News & Current Affairs TV Channel namely 'Prime9 News' permitted vide Ministry's Letter No. 1404/6(ii)/2007- TV(I) dated 04.12.2007 (Registration number 108/1/2007-TV(I)) was revoked with immediate effect and the name of the channel was removed from the list of TV channels permitted by this Ministry. Questioning the said orders, Writ Petition No.18617 of 2023 came to be filed on the file of this Court. After contest, said writ petition was allowed vide order dated 29.01.2024. The operative portion of the said order, is extracted below:
"This Court without going into the other issues and merits of the case upon the consent of all the learned Counsel on record duly taking into consideration the observations made by the Apex Court in the various judgments (referred to and extracted above) and duly considering the averments made in the counter affidavit filed by the Respondent at Para 25(d) and Para 25(g) (referred to and extracted above, this Court is inclined to set aside the order impugned dated 07.07.2023 passed by the Respondent herein pertaining to File No. 1404/6(ii)/2006-TV(I) Vol II, on the ground that it is in clear violation of principles of natural justice and in violation of clause 25 (4) of the policy Guidelines in force, the Respondent herein is directed to reconsider the whole issue afresh again in strict adherence to the relevant guidelines in force (referred to and extracted above) by giving a reasonable opportunity of personal hearing to the Petitioner in accordance to law and pass appropriate reasoned orders pertaining to the subject issue i.e., pertaining to cancellation of permission of the ::17::
Channel to M/s. Rayudu Vision Media Limited (RVML) to uplink and downlink a News and Current Affairs TV Channel namely "Prime 9 News" (earlier RTV) which had been granted on 04.12.2007 in favour of the Petitioner herein and had been subsequently renewed on 18.03.2021 for a further period upto 03.12.2027, within a period of 4 weeks from the date of receipt of the copy of the order and duly communicate the decision to the Petitioner herein.
It is further observed that the Petitioner is at liberty to put-forth all the legal pleas available to the Petitioner before the Respondent herein in addition to all the pleas which had been raised and put- forth by the Petitioner in the present writ petition and accordingly, the writ petition is allowed. However, there shall be no order as to costs."
13. In compliance with the aforesaid order, the respondent issued Show Cause Notice in File No.1404/6(ii)/2006-TV(1) Vol.III Part dated 14.02.2024 stating that as per the investigation carried on by the respondent, it was noticed that the petitioner has committed certain irregularities such as violation of core essential functions/ activities carried out by the News Channel, relating to content creation, content transfer/content uplinking. In the show cause notice, it was also stated that the petitioner was granted renewal permission dated 18.03.2021, subject to the condition that it shall comply with all the terms and conditions contained in the uplinking and downlinking Guidelines, as amended from time to time and the company would generate/develop its own content for news and current affairs, TV channel and would not source it from any third party without prior approval of the Ministry. Further, another opportunity was given to the petitioner to submit certain ::18::
information/details relating to the operation and management of the petitioner-company.
14. It is also stated in the said show cause notice that as per Clause 30 of the Policy Guidelines 2022, the petitioner-company has to abide terms and conditions applicable for uplinking and downlinking Guidelines and violation thereof would entitle the respondent to invoke Clause 8(1)(e) of the Policy Guidelines, dealing with furnishing information as may be required by the respondent from time to time and failure in submission of the required information would be treated as violation of Policy Guidelines and the petitioner was asked to explain as to why permission granted to the petitioner-company should not be revoked for committing violations in terms of Clause 25(1)(xii) and 26(2) of the Policy Guidelines, 2022.
15. In response to the said show cause notice, the petitioner appeared personally and submitted an explanation dated 21.02.2024 inter alia stating that in ignorance of the Policy Guidelines, the petitioner had entered into Time Slot Agreement with M/s.SBPL, wherein it is admitted that the entire content creation, content transfer and content uplinking functions were done by M/s.SBPL and monthly consideration was received by the petitioner. It is also admitted that the petitioner-company has severed its ties with ::19::
M/s.SBPL on 18.02.2024 and terminated the Time Slot Agreement. Further, it is also stated that the expenses such as salary of employees, rent of studio, electricity, leased line expenses were not borne by the petitioner but were paid by M/s.SBPL before 18.02.2024 and hence such details are not available with the petitioner-company. It is also admitted, the fixed assets for generating content were also owned by M/s.SBPL and purchase order of leased line was placed by M/s.SBPL. The details of information as sought by the Ministry and reply given by the petitioner-company is mentioned in the tabular form:
S.No. Information Sought by MIB Reply of Company 1 Date of operationalisation/functionalization of said November, 2018.
studio(s) of TV Channel "Prime9 News".
2 Copy of rent agreement of studio(used by Prime As, the company has News channel) with details of landlord mentioning severed its ties with the rental amount for studio premises. M/s. SBPL, M/s.
RVML could not
3 Details of mode of payment made to land-lord/ obtain the requisite
owner of the studio premises (used by Prime9 News documents. Hence,
channel) by the entity making payment. no details can be
provided.
4 Copy of accounts of landlord/owner in company's
book of account(s) or books of the entity which has made payment for the period 01/04/2022 to 31/03/2023.
5 Complete details of the employees working in the channel "Prime9 News" with their job description, offer letters, amount of monthly salary paid and mode of payment of salary by M/s Rayudu Vision Media Limited or the entity making payment along with documentary evidence.
6 Details of EPFO registration and Tax deducted from employee's salary by the company with documentary evidence.
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7 Details of receipt of any income and expenditure on account of 5 mins/day or 150 minutes/month of Airtime retained by M / s RVML with itself and not contracted to M/s SBPL. Details of the studio where such content is being generated and personnel involved in creation of such content.
8 Copy of account of leased line carrier(s) in book of The leased line account(s) of the company or entity making payment agreement was done on its behalf for the period 01/4/2022 to by M/s. SBPL. 30/06/2023. Hence, no details can be provided.
9 Invoice of purchase order in respect of laying of leased line.
10 Details of all the fixed assets with vouchers and The fixed assets mode of payment, utilized for the management and used to operate the operation(s) of the TV Channel "Prime 9 News". TV Channel "Prime9 News" were owned by M/s.SBPL. Hence, no details can be provided.
11 Bank Account Statement details of M/s Rayudu Furnished by the Vision Media Limited for the period from 01/4/2022 company to 31/3/2024.
12 Copy of the Time Slot Agreement entered between the The said Time Slot company and M/s. SBPL which expired on Agreement was 16.09.2019. provided as Annexure of Time Slot Agreement dated 16.10.2018.
13 Reason why addendum dated 02.03.2021 entered As the Addendum is into with M / s SBPL was not registered while the an extension to Time slots agreements were registered. Agreement dated 15.02.2021, hence the parties felt stamp paper is not required.
14 Copy of account of M/s.Samhita Broadcasting Furnished by the Private Limited in book of account(s) of the company company for the period 01/4/2022 to 31/3/2024.
15 Details of payment of domain charges paid by M/s The payments were RVML or any entity on its behalf for its official made by M/s. SBPL. website of TV channel "Prime 9 News" Hence, no details can be provided.
16. After considering the explanation as well as the documents submitted by the petitioner, the respondent passed the impugned ::21::
order dated 06.03.2024. The relevant portions of the impugned order are extracted as below:
"(e) The contention of the channel that it was ignorant of Policy Guidelines holds no ground as the channel has to adhere to the terms and conditions of the permission as well as the Policy Guidelines in force.
It is also pertinent to mention that in the letter of renewal of Permission granted to the company on 18.03.2021, it was specifically mentioned that the company shall comply with all the terms and conditions contained in the Uplinking and Downlinking Guidelines as amended from time to time. Further, point 2(h) of the said letter also states that the company would generate/ develop its own content for News and Current Affairs and would not source it from any third party without prior approval of the Ministry. Therefore, the company cannot plead ignorance at this stage.
(f) It may be noted that the Security clearance from MHA is an essential condition for continuation of permission and in the said case, M/s RVML has allowed its News and Current Affairs channel 'Prime9 News' to be run by a non-permitted and non-Security cleared entity namely M/s.SBPL. As per the Policy Guidelines, changes in Share Holding Pattern, appointment of Directors in the board are required to be approved by the Ministry. Allowing a non-permitted entity which is not security cleared to control the operation of a News and Current Affairs TV channel poses a big threat to National Security.
12. Thus, as per the written submission furnished by the authorised representatives of the company in personal hearing dated 21.01.2024, it is evident that the company has violated Clause 32 of the Policy Guidelines as it transferred the channel, "Prime 9 News" without permission of the Ministry by contracting out its operations and core functions namely content creation and content transfer to an non- permitted company M/s.Samhitha Broadcasting private Limited. Hence, from 16.10.2018 (date of Time-Slot agreement) till 18.02.2024 (date of termination of Time Slot Agreement), the company is in violation of then Policy Guidelines, 2011 (Clause 11) and present Policy Guidelines, 2022 (Clause 32).
13. Under Clause 11 of the 2011 Uplinking Guidelines, transfer of permission of TV channel was allowed in case of merger/demerger/ amalgamation or transferred in accordance with the provisions of the Companies Act., with the prior permission of the Ministry. In case of violation of these Clause(s), provision for imposition of penalty was prescribed under Clause 8 of the Uplinking Guidelines 2011. Policy Guidelines 2022 came into effect on 9.11.2022 and under Clause 32 of the said guidelines, Transfer of permission of a Television Channel or teleport has been allowed to another company/LLP only with prior approval of the MIB. In case of violation of this Clause, provision for imposition of penalty i.e. Suspension/Cancellation of the permission of the channel has been prescribed under Clause 25 of the 2022 Policy Guidelines.
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As per Clause 25 (1) of Policy Guidelines, 2022 where a permission holder company is found to be violating any of the terms and conditions of the permission, the Ministry shall have the right to take action, as under:-
Sl.No Violation Penal Action for Violation
(xii) (xii) Transfer of a channel Suspension/cancellation of
without permission of the permission
Ministry
14. Accordingly, in exercise of the powers under Clause 25 (1)(xii) Clause 25(2) and Clause 26 (2) of the Policy Guidelines, 2022 and with the approval of the Competent Authority, the permission to uplink and downlink of the News & Current Affairs TV Channel namely 'Prime9 News' permitted vide Ministry's Letter No. 1404/6(ii)/2007- TV(I) dated 04.12.2007 (Registration number 108/1/2007-TV(I)) is hereby revoked with immediate effect and the name of the channel is removed from the list of TV channels permitted by this Ministry.
17. The Registration Certificate for downlinking the TV Channel was granted to the petitioner vide Registration No.108/I/2007-TV(I) dated 04.12.2007 subject to the condition that the petitioner-
company will not use uplinking facilities such as DSNG/SNG/ RTTS/VSAT, etc., without prior approval of the respondent and the petitioner company would generate/develop its own content, for news and would not source it from any third party, without prior approval of the respondent. The said Certificate was issued under Policy Guidelines, 2005, dated 11.11.2005. As per Clause 5.9 of the said Policy Guidelines, the applicant company seeking permission to downlink a channel shall operationalise the channel within one year from the date of permission being granted by the Ministry of Information and Broadcasting, failing which the permission will be liable to be withdrawn without any notice. As per the information ::23::
furnished by the petitioner-company, as on November, 2018, it is not in operation or functioning the studio of TV channel Prime9 News, no rental agreement or details of the landlord was mentioned and no mode of payment was shown. The accounts maintained with the landlord/owner in company's book of account(s) or books of the entity which was made for the period from 01.04.2022 to 31.03.2023 and particulars relating to their employees and their job operation and salaries paid to the employees or details pertaining to the income and expenditure on account of 5 mins/day or 150 minutes/month of Airtime retained by the petitioner. Except stating that in view of not timely approving or permitting the change of logo of the petitioner company, they could not conduct the required operations, establishing their own studios. The licence/permission of the petitioner was renewed on 18.03.2021 under Clause 10.3 of the Policy Guidelines dated 05.12.2011, subject to the petitioner accepting all the terms and conditions of the permission as the Government may prescribe by way of policy pronouncements from time to time. As per Clause 11 of the said Guidelines 2011, the permission holder shall not transfer the licence without prior approval of the respondent. The said Guidelines, was amended from time to time and in supersession of all earlier Guidelines, consolidated Guidelines were framed by the respondent vide File No.1503/21/2017-TV(I) dated 09.11.2022.
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18. Clause 36 of the Policy Guidelines, 2022, states that various terms and conditions laid down in Guidelines 2022 shall automatically apply to all permissions and approvals granted by the respondent under the "Policy Guidelines" for Uplinking of Television Channels' and 'Policy Guidelines for Downlinking of Television Channels' dated 5th December, 2011 and the Guidelines of 2005, and all new permissions/renewals will be governed by the Guideline.
Clause 26 of the said Guidelines, confers power on the Central Government to regulate or prohibit the operation of any channel. Under sub-clause (2) of Clause 26 of Policy Guidelines, 2022, the respondent has the right to suspend the permission of a channel for a specified period or cancel its permission if the company is found to have misused the permission by authorizing or enabling or contracting out to any other person the operations or other core functions/activities of the channel through any explicit or implicit agreement or arrangement or there is a substantive change in ownership of the company leading to complete change in management and control over the company without prior permission of the respondent. The Time Slot Agreements dated 16.10.2018 and 15.02.2021 entered by the petitioner-company with M/s.SBPL, defines the Time Slot, according to which the time allotted by the petitioner to M/s.SBPL is for a duration of 23 Hours 55 Minutes every day, during which M/s.SBPL will provide content to be aired, ::25::
and will also have marketing, distribution and promotion rights for the air time. This makes it very clear that the petitioner as owner of the channel withheld only 5 minutes of air time out of 24 hours and entire responsibilities in terms of permission such as Downlinking and Uplinking of the subject TV channel were relegated to M/s.SBPL instead of generating/developing its own content for News and Current Affairs, which is in gross violation of Condition No.3(iv) of the Permission Order vide Office Memorandum No.1404/6(ii)/2006- TV(I) dated 04.12.2007. In addition to the same, the petitioner company has not furnished any information to establish that it has severed its ties with M/s. SBPL before passing of orders on 07.07.2023, under which the respondent has revoked the permission. The correspondence between the petitioner and the Lamhas Satellite Services Pvt. Limited, would reveal that the petitioner has severed its ties with M/s. SBPL on the midnight of 19.02.2024. Further, the copy of ledger account of M/s.SBPL from 01.04.2022 to 29.02.2024 shows that M/s.SBPL is remitting the amount of Rs.8,10,000/- in terms of the Time Slot Agreement even as on 17th February, 2024, which falsifies the contention of the petitioner that Time Slot Agreements dated 16.10.2018 and 15.02.2021 have been terminated prior to 18.02.2024. The same was corroborated vide letter dated 21.02.2024 submitted by the petitioner. In view of the above evidence, it respondent is having ::26::
power or authority to conduct an enquiry or initiate proceedings for revocation of the permission under the Policy Guidelines, 2022 for the actions done by the petitioner prior to Policy Guidelines, 2022. The action of the petitioner is continuous and persisting even as on the date of the revocation order dated 07.07.2023. This would show that even after passing of revocation orders dated 07.07.2023 by the respondent, impugned in the W.P.No.18617 of 2023, the Time Slot Agreement 16.10.2018 entered by the petitioner is continuous in operation upto the midnight of 18.02.2024. Further, the petitioner vide letter dated 03.04.2023 addressed to the respondent has stated that the owner of the Trademark Prime9 News (M/s.SBPL) has to withdraw the rights, to use the name and logo given on 01.04.2023 from its previous name Prime9 News to RTV and keeping the said reasons in mind, the respondent vide letter dated 18.05.2023 issued show cause notice dated 26.04.2023 and rejected permission for change of name and logo from Prime9 News to RTV. Therefore, the contention of the learned Senior Counsel appearing for the petitioner that the respondent is not having any power to resort to action under the amended Guidelines i.e, Policy Guidelines, 2022, is untenable.
19. In Surya Dev Rai vs. Ram Chander Rai 5, the Hon'ble Apex Court observed that the High Court in exercise of supervisory jurisdiction cannot convert itself into a court of appeal and re- 5
(2003) 6 SCC 675 ::27::
appreciate or evaluate evidence.
20. In State of Karnataka and another vs. Umesh 6, the Hon'ble Supreme Court, observed as follows:
"Para 22: In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not reappreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:
(i) the rules of natural justice have been complied with;
(ii) the finding of misconduct is based on some evidence;
(iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
(iv) whether the findings of the disciplinary authority suffer from perversity; and
(v) the penalty is disproportionate to the proven misconduct."
21. As per the judgments referred above, the principle emanated is that exercise of power is not excessive as it sought to strike proper balance between the freedom guaranteed under Article 19(1)(a) of the Constitution of India and social control of the State in allowing the Channels to maintain under Article 19(6) of the Constitution of India. The affidavits accompanying the writ petitions failed to establish mala fides on the part of respondent so as to vitiate the impugned orders. Further, the petitioner who sought to invalidate the 6 (2022) 6 SCC 563 ::28::
impugned orders failed to establish charge of bad faith or bias, or misuse of the powers by the respondent.
22. In Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal 7, the Hon'ble Apex Court while dealing with the fundamental right of freedom of speech and expression has observed that every citizen has right to use the best effective means of communication and the reasonable restrictions imposed by law made for the purpose mentioned in Article 19(2) of Constitution of India are common to all media, whether it is print media or electronic media and summarized its findings as follows:
"122. We, therefore, hold as follows:
(i) The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since the electronic media involves the use of the airwaves, this factor creates an inbuilt restriction on its use as in the case of any other public property.
(ii) The right to impart and receive information is a species of the right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property, viz., the airwaves, involved in the exercise of the right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved in the use of the electronic media is in addition to the restrictions imposed on the right to freedom of speech and expression under Article 19(2) of the Constitution. 7 (1995) 2 SCC 161 ::29::
23. In Madhyamam Broadcasting Limited vs. Union of India and others 8, the Hon'ble Apex Court while dealing with the refusal of permission to operate the media channel on the ground of denying the security clearance and adopting sealed cover procedure, observed that the said procedure amounts to restriction on the freedom of press and expression and the same is not in compliance with the restrictions stipulated in Article 19(2) of Constitution of India. In Para 159, the Hon'ble Apex Court observed as follows:
"159. In view of the observations above, we are of the opinion that the respondents by not providing a reasoned order denying the renewal of license, not disclosing the relevant material, and by disclosing the material only to the Court in a sealed cover have violated the appellant's right to fair hearing protected under Article 21 of the Constitution. The respondents were unable to prove that the restrictions on the appellants' right to a fair hearing was reasonable. Therefore, the order of MIB dated 31st January, 2022 denying permission for renewal of the license and the judgment of the Division Bench of the High court dated 2nd March, 2022 must be set aside on the ground of infringement of procedural guarantees."
In the present case, the respondent followed the principles of natural justice and provided an opportunity of personal hearing to the petitioner. After elaborate enquiry, it was found that the petitioner has violated terms and conditions of the permission granted by the respondent. Except pleading ignorance of consequences of not following terms and conditions, the petitioner has not denied the violation of terms and conditions. The terms and conditions will 8 2023 LiveLaw (SC) 269 = 2023 SCC OnLine SC 366 ::30::
govern the authorisation given to the petitioner and they would bind both the parties. As such the State can exercise its power to impose restrictions as per the policy guidelines. In the absence of questioning the policy guidelines as violative of the fundamental rights guaranteed under Article 19(1)(g) or 19(2) of the Constitution of India, the decision in Madhyamam Broadcasting Limited's case (supra) relied upon by the petitioner, is not applicable to the present case.
24. Mr.Surender Rao, learned Senior Counsel appearing for the petitioner has placed much reliance on the decision in Zora Traders Limited and others vs. Union of India and another 9. In the said decision, the petitioners therein have complied with all the terms and conditions of the Policy Guidelines 2022 and also corrective measures as suggested by the Ministry of Information and Broadcasting and keeping in view, the satisfaction arrived by the respondent therein, the said writ petition was disposed of. The decisions relied upon by the learned Senior Counsel for the petitioner are distinguishable from the facts and circumstances of the cases on hand and they do not subserve the case of the petitioner.
25. There is no dispute with regard to principles emanated from the aforesaid decisions. The right to freedom and expression shall 9 2024 SCC OnLine Del 583 ::31::
include freedom to hold opinions and to receive and impart information and ideas without interference by the public authority and the same shall not prevent the Government from insisting for licence of broadcasting or Television and exercise of these freedoms, since it carries, with its duties and responsibilities, may also subject to conditions, restrictions or penalties prescribed by law for maintaining the authority in the democratic form of society.
26. It is settled law from the various judicial pronouncements that administrative decisions are subject to judicial review under Article 226 of the Constitution of India, on the grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. Except on these grounds administrative decisions cannot be interfered with, in exercise of the extraordinary power of judicial review. However, a decision is vitiated by irrationality if the decision is so outrageous, that it is in defiance of all logic; when no person acting reasonably could possibly have taken the decision, having regard to the material on record. A decision may sometimes be set aside and quashed under Article 226 of the Constitution of India, on the ground of illegality. This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise. Judicial review under Article 226 of the Constitution of India, is ::32::
directed, not against the decision, but the decision-making process. A patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision- making process.
27. In view of the principles laid down by the Hon'ble Supreme Court in the decisions referred supra and as the orders impugned in these writ petitions contains reasons, which are cogent, clear and sufficient and they do not require interference by this Court. For the foregoing reasons, both the writ petitions are devoid of merits and the same are liable to be dismissed.
28. Accordingly, both the Writ Petitions are dismissed. However, it is left open to the petitioner to make an application for renewal of license by complying the terms and conditions of the policy guidelines in force and on such compliance, the respondent shall consider the application, in accordance with law.
Miscellaneous petitions, if any pending in these writ petitions shall stand closed. No order as to costs.
___________________________ C.V. BHASKAR REDDY, J Date: 03.06.2024 scs