Calcutta High Court (Appellete Side)
Tamal Biswas vs Union Of India & Ors on 27 December, 2023
Author: Jay Sengupta
Bench: Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
WPA 28732 of 2023
Tamal Biswas
Versus
Union of India & Ors.
For the petitioner : Mr. Soumava Ghosh
Mr. Soumalaya Ganguly
Mr. Himanshu Dhewan
Ms. Tiana Bhattacharya
For the respondent no. 4 : Mr. L. Vishal Kumar
Mr. Kunal Tandon
Heard on : 27.12.2023
Judgment on : 27.12.2023
Jay Sengupta, J:
1. This is an application challenging an order dated 14.12.2023 passed by the
Telecom Disputes Settlement and Appellate Tribunal, New Delhi in M.A. No. 288 of
2023 in Broadcasting Petition No. 300 of 2023.
2. Affidavits of service are taken on record.
3. Learned counsel appearing on behalf of the petitioner submits as follows. The
petitioner is a local cable T.V. Network having a large number of subscribers in the
border areas of the State of West Bengal. The petitioner was granted a registration
by the respondent no. 1 under the Cable Television Networks (Regulation) Act,
1995. The petitioner and the respondent no. 4 has entered into an agreement for
broadcasting and airing of the channels of the respondent no. 4 through its cable
television network. The dispute arose between the parties regarding alleged under
reporting of subscribers. An application became pending before the Tribunal. Despite
the petitioner's protest, one K.P.M.G. was engaged as an auditor to audit the digital
data for such purpose. Moreover, as they were not coming with proper identity cards,
they were denied access to the subscribers' base or other records of the petitioner.
This was used against the petitioner by the respondents. The impugned interlocutory
order was passed without adverting to the actual facts in details and a blanket liberty
was granted to the respondent no. 4 to decide whether to disconnect the signal of
the petitioner or not. The same was quite obviously disconnected. In the main matter
a date has been fixed for hearing by the Tribunal on 06.2.2024. By that time,
irreparable harm would be caused and the petitioner would loose significant number
of subscribers. The petitioner is now willing to allow the K.P.M.G. to audit.
4. Learned counsel appearing on behalf of the respondent no. 4 submits as
follows. The allegations made in the writ petition are denied. Regulation 15(2) allows
the respondent to appoint auditor. KPMG is an enlisted auditor under TRAI
guidelines. There was rampant underreporting of subscribers, which led to the audit.
In fact, TDSAT clearly stated that it could not go into the alleged biasness of the
auditor. The petitioner tried his best to stall the audit even by raising flimsy grounds
like identity cards of the auditors did not match. The Tribunal had to invoke its
contempt jurisdiction. The petitioner was duly heard. A deactivation was done on
15.12.2023 although the petitioner has approached this Court now. The petitioner
can fairly pray for an early date of hearing before the Tribunal.
5. It is also contended by the petitioner that while the deactivation had taken
place on 15.12.2023, the Tribunal was open till 22.12.2023. It would again re-open
after winter vacation on 03.01.2024.
6. It appears that the impugned order was passed after taking into consideration
the issue of appointment of KPMG as auditor. It was only after some discussions
about the facts of the case that such a discretion was granted to the respondent to
discontinue with the supply signals.
7. It does not appear that there has been any violation of the principles of natural
justice either.
8. Afterall, this Court is more concerned about the process and the manner in
which an inference is arrived at and cannot sit in appeal over the impugned order.
9. Therefore, this Court does not find any apparent infirmity in order passed by
the Tribunal.
10. However, the apprehension of the petitioner that with the passage of time, the
petitioner might loose a number of subscribers is also quite genuine.
11. Therefore, the petitioner shall be at liberty to make a prayer before the
Tribunal for an early hearing of the matter and for any other appropriate relief in this
regard in accordance with law.
12. With these observations, the writ petition is disposed of.
13. As no affidavit was called for, the allegations made are deemed not to have
been admitted.
14. Urgent photostat certified copy of this order be supplied to the parties, if
applied for, as early as possible.
15. Parties shall act on server copy of the order duly downloaded from the official
website of this Court.
(Jay Sengupta, J.)
