Niharekaa Media vs The Union Of India,
2021 Latest Caselaw 1981 AP

          HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

               WRIT PETITION No.18168 of 2020
ORDER:

Since the issue of maintainability was raised in the Vacate

Stay Petition (I.A.No.4 of 2020) it was taken up for primary

determination.

Both the learned counsel agreed to argue on the issue of

maintainability of the Writ Petition and accordingly they have

argued the matter before the summer vacation. The matter was

reserved for orders and the orders are being pronounced now.

The petitioners before this Court are Multi System

Operator and Broadband Service Providers. They are aggrieved

by certain actions of the 5th respondent, who is a triple play

service provider (internet/broadband, distribution of TV

channels and Telephone Connections). The petitioners have all

entered into tripartite agreements with the 5th respondent, which

are filed as material papers. Aggrieved by the action of the 5th

respondent in disrupting their services, attempting to remove

their subscriptions/customers etc., the present Writ Petition is

filed by the petitioners.

The 5th respondent entered appearance and filed a detailed

counter affidavit and raised a primary objection about the very

maintainability of the Writ itself. I.A.No.4 of 2020 is the Vacate

Stay Petition that has been filed, in which the maintainability of

the Writ Petition is a fundamental issue that has been raised.

As can be seen from the writ affidavit itself that the petitioners

are service providers with their own or captive subscriber bases.

It is also not in dispute that the 5th respondent is a service

provider with whom the petitioners have entered an agreement.

Since Sri A. Tulsi Raj Gokul raised the issue of

maintainability he argued the matter at first. He drew the

attention of this Court to the Telecom Regulatory Authority of

India Act, 1997 (hereinafter called as "TRAI Act") and the

citations filed by him viz., Akash Cable T.V.Network Private

Limited & Anr. V Telecom Disputes Settlement & Appellate

Tribunal, New Delhi & Ors.,; Union of India v Tata

Teleservices (Maharashtra) Ltd., and National Highways

Authority of India v Ganga Enterprises and Another.

It is the contention of Sri A. Tulsi Raj Gokul that the TRAI

Act and its provisions are squarely applicable to the dispute in

hand. He points out that the Telecom Disputes Settlement

Appellate Tribunal (in short "the TDSAT") alone, which is

established as per Section 14 of the TRAI Act has the

jurisdiction, authority and power to hear and decide the present

dispute. He relies upon Section 14 (a) (ii) of the TRAI Act to

submit that the TDSAT has the jurisdiction to entertain the

dispute between two or more service providers. Relying upon

Sections 14M and 14N of the TRAI Act he argues that the

purpose of the Act is to ensure all pending and future disputes

should be heard and decided by the TDSAT only. He also draws

the attention of this Court to Section 15, which expressly barred

all the Civil Courts to entertain any suit or proceedings. They

are restrained from granting interim orders also pointed as per

him. Basing on all these Sections in particular learned counsel

argues that the TDSAT has the necessary power, expertise and

jurisdiction to decide this dispute.

Relying upon the judgment of the learned Single Judge

reported in Akash Cable T.V. Network case (1 supra) Sri T.

Tulsi Raj Gopal points out that in similar circumstances when a

telecom service provider approached the Writ Court, learned

Single Judge held that the Writ Court does not have the

jurisdiction. He relies upon the paragraph Nos.5, 19, 20, 42 to

44 to argue that it is only the TDSAT that has the jurisdiction to

decide this dispute. Relying upon Tata Teleservices

(Maharashtra) Ltd., case (2 supra) and in particular

paragraph Nos.15 to 17 learned counsel argues that it is a self

contained Code and this Court should not entertain the Writ at

all. Lastly, relying upon National Highways Authority of

India case (3 supra) learned counsel argues that the dispute

arising out of a contract cannot be adjudicated by a Writ Court.

In reply to this Sri G.Venkateswarlu, learned counsel for

the petitioners argues that the existence of an agreement is not

in doubt, but he argues that the 5th respondent, which fits

within the definition of "STATE " under Article 12 has to behave

like a model employer and cannot take unilateral actions. He

argues, without prejudice to any of his contentions, even if there

is an alternative remedy the Writ Court is not precluded from

entertaining a dispute if there is a failure of the principles of

natural justice and the writ petitioners' fundamental rights are

affected. He points out that the petitioners have a fundamental

right to carry on the business without any obstruction or

hindrance except as per. The action of the 5th respondent is

contrary to law as per him. Apart from that he also points out

that it is very clearly averred in the Writ Petition that without

giving any notice or hearing, the 5th respondent is acting

unilaterally and taking away the captive base of subscribers of

the petitioners solely due to political considerations. Therefore,

he argues that the failure of the rules of natural justice is very

clear and therefore he submits that this Court has the

jurisdiction. He relies upon Harbanslal Sahnia and Ors., v

Indian Oil Corpn., Ltd., and Ors., to buttress his argument on

this matter. Therefore, learned counsel for the writ petitioners

submits that this Court has the jurisdiction and the authority to

deal with this matter and prays that the preliminary objection of

the learned counsel for the 5th respondent should be overruled.

This Court appreciates the manner in which the matter

was argued by both the learned counsel.

This Court also notices that there is no strict dispute in

the fact that the petitioners are service providers. Similarly, it is

not in dispute that the 5 respondent is also a triple play service th

provider. This is clear from the reading of the Writ affidavit

itself. A reading of the TRAI Act clearly shows that if there is a

dispute between two or more service providers the TDSAT has

the authority to decide the dispute. As rightly submitted by the

learned counsel for the 5th respondent the TRAI Act should be

interpreted in a purposive manner to achieve its objective.

Sections 14M; 14N and 15 make it clear that all the pending

matters should be transferred to the TDSAT; Section 15 makes it

clear no Civil Court shall entertain any suit or proceeding in

respect of any matter which the Appellate Tribunal is

empowered to deal with and no injunction order can also be

granted. A reading of these sections and the other aspects or

power of the Appellate Tribunal, as can be seen from Sections

16, 17, 18 and 19, make it clear that the petitioners have an

effective remedy for reversal of their grievances. The Tribunal

has the adequate powers, in the opinion of this Court, to record

evidence and decide the dispute. Apart from that there is a right

of legal representation (Section 17) given to the petitioners or

similarly situated persons and an appeal is provided to the

Hon'ble Supreme Court of India. In that view of the matter, this

Court holds that there is an effective remedy available to the

petitioners.

The tripartite agreement also contains Clause-13 dealing

that Governing Law and Dispute Resolution. The first half of

Clause 13 (2) states that the parties shall not seek an injunction

from any court or tribunal except before the TDSAT. This issue

is left open for the present. However, the latter half of the clause

very clearly states that - the parties agree that all the disputes

between the parties shall be resolved "solely" through

proceedings instituted before the TDSAT. Clause 13 (1) also

states that the rights and obligations of the parties shall be

governed by the laws of India. This Court is, therefore, of the

opinion that in view of the Clause 13 (1) and for the purpose of

this Interlocutory Application, the later half part of the Clause

13 (2) of the tripartite agreement is clearly applicable and the

parties agreed to be bound by the law of the land which includes

the TRAI Act (24 of 1997). With or without this clause the

parties would be governed by this Act. In addition, they have

expressly agreed that their dispute will be "solely resolved by the

TDSAT". This naturally excludes all other courts.

While the case laws cited by the learned counsel for the

petitioners is not in doubt this Court is of the opinion that the

reading of the facts in the case law cited by the learned counsel

for the 5th respondent make these cases more applicable to the

facts of the present case. A learned single Judge of this Court

held that in a dispute between service providers it is only the

TDSAT which has the jurisdiction. The Hon'ble Supreme Court

of India in the case of Tata Teleservices (Maharashtra) Ltd.,

case (2 supra) in paragraph No.7 held that Section 14 indicates

that the TDSAT has been constituted to adjudicate on any

dispute between licensor and the licensee or between two or

more service providers. The same is reiterated in paragraphs 15

to 17 also. The Hon'ble Supreme Court of held that this Act 24

of 1997 is a self contained code. Hence, this Court is of the

opinion that this Writ Court does not have the power to

entertain let alone decide the present dispute. The Writ Petition

is, therefore, disposed of on the sole ground that it is not

maintainable. It is left open to the petitioners to agitate their

claim before the TDSAT. Accordingly, the Writ Petition

is disposed of. There shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any,

pending in the writ petition shall stand closed.

_________________________ D.V.S.S.SOMAYAJULU, J

Date :15.06.2021 Ssv