Hathway Cable Datacom Private ... vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 452 Del

JUDGMENT

Vikramajit Sen, J.

Page 1315

1. In this writ petition it has been prayed that a writ, order or direction in the nature of mandamus be issued for implementing the transmission/retransmission of pay channels only through an addressable system in the specified areas of Mumbai, Kolkata and the National Capital Territory of Delhi in accordance with the Cable Television Networks (Regulation) Act, 1995; that the actions or omission on the part of Respondent No.1 in not implementing the provisions of Section 4A of the Cable Television Networks (Regulation) Act, 1995 be declared as patently illegal, mala fide and arbitrary in nature; that the Respondent No.1 be directed to take necessary steps directing the respective State Governments to make available necessary resources for the implementation of the Cable Television Networks (Regulation) Act, 1995; that Respondent No.2 be directed to take necessary steps to implement the above said prayers. It has also been prayed that in the alternative, damages be awarded to the Petitioners in compensation of the losses and costs for non-implementation of the mandate of the Parliament as prescribed in Section 4A of the Cable Television Networks (Regulation) Act, 1995.

2. In Jay Polychem India Ltd. v. Union of India 2004 IV AD (Delhi) 249 the Petitioners had laid siege upon the Notification dated 29.8.2003 issued by the Central Government ostensibly in exercise of powers seen to have been conferred by sub-section (1) of Section 4A read with Section 9 of the Cable Television Networks (Regulation) Act, 1995 (hereafter referred to as `the Cable Act', for brevity). That Notification attempted to indefinitely defer the implementation of the Conditional Access System ('CAS' for short) in the Page 1316 metropolis of Delhi, and thereby nullify the earlier Notifications which mandated the introduction of Case with effect from 1.9.2003. The Division Bench inter alia noted that the Report of the Task Force dated 27.2.2002 had found Case to be beneficial to public interest, and that the revenue that had been generated at that time was approximately Rs.5700 crores. Predicated on this Report Parliament had introduced Section 4A into the Cable Act, which in essence postulated that public interest demanded amendment to the statute. Section 4A reads thus:-

4A. Transmission of programmes through addressable system, etc.--(1) Where the Central government is satisfied that it is necessary in the public interest to do so, it may, by notification in the Official Gazette, make it obligatory for every cable operator to transmit or retransmit programme of any pay channel through an addressable system with effect from such date as may be specified in the notification and different dates may be specified for different States, cities, towns or areas, as the case may be.

(2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, specify one or more free-to-air channels to be included in the package of channels forming basic service tier and any or more such channels may be specified, in the notification, genre-wise for providing a programme mix of entertainment, information, education and such other programmes.

(3) The Central Government may specify in the notification referred to in sub- section (2), the number of free-to-air channels to be included in the package of channels forming basic service tier for the purposes of that sub-section and different members may be specified for different States, cities, towns or areas, as the case may be.

(4) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, specify the maximum amount which a cable operator may demand from the subscriber for receiving the programmes transmitted in the basic service tier provided by such cable operator.

(5) Notwithstanding anything contained in sub-section(4), the Central government may, for the purposes of that sub-section, specify in the notification referred to in that sub-section different maximum amounts for different States, cities, towns or areas, as the case may be.

(6) Notwithstanding anything contained in this section, programmes of basic service tier shall be receivable by any subscriber on the receiver set of a type existing immediately before the commencement of the Cable Television Networks (Regulation) Amendment Act, 2002 without any addressable system attached with such receiver set in any manner.

(7) Every cable operator shall publicise, in the prescribed manner, to the subscribers the subscription rates and the periodic intervals Page 1317 at which such subscriptions are payable for receiving each pay channel provided by such cable operator.

(8) The cable operator shall not require any subscriber to have a receiver set of a particular type to receive signals of cable television network: Provided that the subscriber shall use an addressable system to be attached to his receiver set for receiving programmes transmitted on pay channel.

(9) Every cable operator shall submit a report to the Central Government in the prescribed form and manner containing the information regarding--

(i) the number of total subscribers;

(ii) subscription rates;

(iii) number of subscribers receiving programmes transmitted in basic service tier or particular programme or set of programmes transmitted on pay channel, in respect of cable services provided by such cable operator through a cable television network and such report shall be submitted periodically at such intervals as may be prescribed and shall also contain the rate of amount, if any, payable by the cable operator to any broadcaster. Explanation.--For the purposes of this section,--

(a) 'addressable system' means an electronic device or more than one electronic devices put in an integrated system through which signals of cable television network can be sent in encrypted or unencrypted form, which can be decoded by the device or devices at the premises of the subscriber within the limits of authorisation made, on the choice and request of such subscriber, by the cable operator to the subscriber;

(b) 'basic service tier' means a package of free-to-air channels provided by a cable operator, for a single price to the subscribers of the area in which his cable television network is providing service and such channels are receivable for viewing by the subscribers on the receiver set of a type existing immediately before the commencement of the Cable Television Networks (Regulation) Amendment Act, 2002 without any addressable system attached to such receiver set in any manner;

(c) 'channel' means a set of of frequencies used for transmission of a programme;

(d) 'encrypted', in respect of a signal of cable television network, means the changing of such signal in a systematic way so that the signal would be unintelligible without a suitable receiving equipment and the expression 'unencrypted' shall be construed accordingly;

(e) 'free-to-air-channel', in respect of a cable television network, means a channel, the reception of which would not require the use of any addressable system to be attached with the receiver set of a subscriber; Page 1318 (f) 'pay channel', in respect of a cable television network, means a channel the reception of which by the subscriber would require the use of an addressable system to be attached to his receiver set.

3. The Division Bench in Jay Polychem, inter alia, had recorded the contention of the Additional Solicitor General that Case had been viewed by the Respondents as a consumer friendly initiative. The stand of the Government, despite this admission, was that in view of the impending elections the proposed introduction of Case had caused competing and conflicting political interests to arise; that a proper enforcement of its provisions was essential; that the exercise of discretion pertaining to the date of implementation is intra vires the Act. It was further contended that since Parliament had left the decision on the Central Government when to introduce CAS, a writ would not lie for mandating its enforcement. Principles pertaining to conditional and subordinate legislation had been explained by the Division Bench in these words:

34. The distinction between conditional legislation and subordinate legislation is well known and has been explained by the Apex Court in the number of judgments. The gist of these judgments have already been reproduced above. It is clear from the reading of these judgments that when a legislature enacts a law and authorise an Executive Authority to bring into force in such area or at such times, as it decides, or to understand the rule of the legislation, it is characterised as conditional legislation. The idea behind conditional legislation is that the legislature makes the law which is full and complete in all respects but it is not brought into operation immediately. The enforcement of the law is made depending upon the fulfilllment of a condition, and what is delegated to outside agency is the authority to determine, by exercising its own judgment, whether or not the condition has been fulfillled. Thus in conditional legislation the law is there but its taking effect is made to depend upon the determination of some fact or condition by an outside agency, normally the Government. On the other hand, under delegated legislation the discretion conferred on the executive is much wider, as the delegatee is given power to legislate in respect of some aspects. Usually what happens is that the legislature enacts a law covering only the general principles and policies relating to the subject matter in question and confers rule making power on the Government or on some other administrative agency.

42. It should be clearly borne in mind that legislature has completed its task of enacting its statute, namely, Section 4A in this case. However, its applicability to particular areas and from particular dates was left to the subjective satisfaction of delegate, namely, the Central Government and exercise of such powers by the Central Government is termed as conditional legislation. Once Notification is issued notifying the date the Act comes into force. Thus we are of the prima facie view that the power given to the delegate gets exhausted by issuing such a notification after recording the satisfaction on satisfying itself that conditions are ripe for bringing the legislation/provision of the Page 1319 Act into effect. Only this much power is given to the delegate. When notification is issued it is the will of the legislature which has been brought into effect and it would start applying with all its vigor. Thereafter if the Government has power to issue another notification cancelling its earlier notification, that may amount to giving the authority to repeal of the Act/provision of the Act. It appears that conditional legislation is a button handed down to the delegate to switch it on as its discretion. But it may not extend to push the button off and on, whenever the Government likes. If this is done, then the consequence may be serious as it would be left at the will of the Government to apply the provisions of a particular Act from particular date and thereafter withdraw the notification making the Act inoperative. Once the legislation is brought into force, it is the legislature who alone would be competent to repeal or nullify it....

52. For same reasons, we are not able to persuade ourselves that it would be a valid ground to defer the decision as according to the respondents, issue had potential to create law and order problems due to the conflicting political interests. If the respondents otherwise felt that the move is in public interest, could it be deferred/cancelled only because its implementation would create the so called law and order problem' That apart, it is not stated as to what kind of law and order problem such an implementation, would have created and how it was not possible for the respondents to curb the same. Ex-facie, it is only a bogey created with no substance.

53. Thus we hold that issuance of impugned notification is an arbitrary exercise of power not supported by any valid reason and would be hit by Article 14 of the Constitution of India. Such a notification, therefore, has to be quashed on this ground.

4. This Judgment of the Division Bench dated 4th December, 2003 has not been appealed against and has become final. Immediately, thereafter in Consumer Coordination Council v. Union of India, CW No.8993-94/2003, another Division Bench recorded the submission of learned Counsel for the Respondent Government, a reiteration of the previously recorded statement, which was clearly that Case is 'a viewer friendly scheme and has been introduced with a view to protecting the interests of the consumers'. As has been narrated in the Notification dated 27.2.2004 the Bench had declined to restrain the Government from implementing Case in the NCT of Delhi but had, on the contrary, decided to review the situation after three months. The Petition was eventually rejected as withdrawn on 5.4.2004

5. In January, 2004 the Government had entrusted matter to the TRAI, Respondent No.2, to make recommendations regarding the terms and conditions on which Case should be implemented. On 23.2.2004 TRAI recommended even in the face of the Judgment and Orders of two Division Benches of this Court that Case be kept in abeyance for three months.

Page 1320

6. Meanwhile the following Notification has been gazetted. It contains a history of the litigation up to that date, and is therefore worthy of reproduction:-

MINISTRY OF INFORMATION AND BROADCASTING NOTIFICATION

New Delhi, the 27th February, 2004

S.O. 271 (E).--Whereas Section 4A of the Cable Television Networks (Regulation) Act, 1995 (7 of 1995) (hereinafter referred to as the Act) envisages 'transmission of programmes of a pay channel through an addressable system' [hereinafter referred to as Conditional Access System (CAS)];

AND WHEREAS the Government of India in the Ministry of Information and Broadcasting, by notification number S.O. 39(E) dated the 14th January, 2003, made it obligatory for the cable operators to transmit programmes of every pay channel, through Case in the Chennai Metropolitan area, Municipal Council of Greater Mumbai area, Kolkata Metropolitan area and the National Capital Territory of Delhi within six months from the 15th January, 2003;

AND WHEREAS by notification number S.O. 792(E) dated the 10th July, 2003, the implementation of Case was deferred to the 1st September, 2003;

AND WHEREAS by notification number S.O. 1000(E) dated the 29th August, 2003, the implementation of Case was withdrawn in the National Capital Territory of Delhi;

AND WHEREAS a number of parties approached the Hon'ble High Court of Delhi, against the withdrawal of Case in the National Capital Territory of Delhi;

AND WHEREAS the Hon'ble Delhi High Court in its Order dated the 4th December, 2003 quashed the Notification of the Government of India in the Ministry of Information and Broadcasting number S.O. 1000(E) dated the 29th August, 2003;

AND WHEREAS the Cable operators in Delhi decided to implement Case from the 15th December 2003;

AND WHEREAS the Hon'ble High Court of Delhi in the Civil Writ Petition number 8993 and 8994 of 2003 in its order dated the 26th December, 2003, declined to restrain the Government from implementing Case in the National Capital Territory of Delhi and decided to review the situation after three months;

AND WHEREAS the Hon'ble High Court of Delhi observed in its aforesaid order, inter alia, that '... we desire that in this period of three months all the loopholes, difficulties faced by the consumers, effect of the implementation and problems, if any, arising out of the implementation can be assessed and remedial measures be taken in that regard.

There has to be some regulatory body in terms of the synopsis of comments which have been filed by the respondent to see the implementation. We would like the respondent to enlighten this Court of the steps taken in this direction before the next date of hearing....;

Page 1321

AND WHEREAS in compliance of order dated the 26th December, 2003 of the Hon'ble Delhi High Court and also with a view to address the issues arising on account of implementation of CAS, the Central Government, brought 'broadcasting services and cable services' within the ambit of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997) on the 9th January, 2004 and entrusted the additional functions to the Telecom Regulatory Authority of India (TRAI) by the notification of the Government of India in the Ministry of Communication and Information Technology numbers S.O. 45(E) dated the 9th January, 2004;

AND WHEREAS the Central Government has requested the TRAI to specify standard norms for, and periodicity of, revision of rates of pay channels, including interim measures;

AND WHEREAS the TRAI was also requested to make recommendations regarding the terms and conditions on which the Case shall be provided to customers and the parameters for regulating maximum time for advertisements in pay channels as well as other channels;

AND WHEREAS the State Governments of National Capital Territory of Delhi, Maharashtra, Tamilnadu and West Bengal have, from time to time, approached the Central Government for deferment or withdrawal of Case citing various reasons relating to consumers' interest, including the issue of pricing of pay channels and terms and conditions for procurement of Set Top Boxes;

AND WHEREAS in the course of implementation of CAS, a deep divide has been noticed among the stakeholders, that is to say the broadcasters, multi- service operators and local cable operators, impinging on the consumers' interest;

AND WHEREAS consequent upon entrusting the additional functions to the TRAI, it initiated a number of steps to assess the difficulties faced by the consumers, the effect of the implementation of Case and the problems faced during the course of implementation. As part of the consultation process, the TRAI obtained comments on relevant matters in writing as well as through its meetings with various stakeholders, examined the views or comments received from the four State governments of Delhi, West Bengal, Maharashtra and Tamilnadu and also considered the regulatory practices in other countries. The TRAI is in the process of preparing a detailed consultation Paper;

AND WHEREAS as the process of consultation and examination of various issues connected with the implementation of Case is likely to take some more time, the TRAI, as an interim measure, has recommended that the implementation of Case in the four metros be either denotified or kept in abeyance for at least three months and necessary action be taken keeping in view of the directions of the Hon'ble High Court of Delhi dated the 26th December, 2003 in the Civil Writ Petition Number 8993 and 8994 of 2003; Whereas it has been brought out by the TRAI in its Interim Recommendation that a large number of issues concerning particularly the general consumers need to be resolved for a meaningful implementation of CAS;

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AND WHEREAS it has also been observed that the provisions of section 4A of the Act have not been uniformly implemented on ground, thereby resulting in illegalities;

AND WHEREAS the Hon'ble High Court, in its order dated the 26th December, 2003, has also stressed that the consumer grievances should be addressed by the providers of CAS;

AND WHEREAS it is essential for the Government to address the issues which have arisen during the course of implementation of CAS, particularly relating to the consumers' interest, such an exercise would involve detailed consultations with the concerned State government and the TRAI requires some more time to examine these issues and make its final recommendations;

AND WHEREAS after careful consideration of all the relevant facts and circumstances, including the interim recommendations made by the TRAI, the Central Government is of the view that the implementation of Case should be in a manner that is in the larger interest of the public and safeguards the interest of consumers, which unfortunately, in the present situation, is not possible unless the issues raised above are addressed;

AND WHEREAS it has now become necessary in the public interest to suspend the relevant notifications concerning implementation of Case and simultaneously take a review, after due consultation with the TRAI and other agencies, with the objective of notifying fresh dates and areas; and

NOW, THEREFORE, in exercise of the powers conferred by sub-section (1) of section 4A, read with section 9 of the Cable Television Networks (Regulation) Act, 1995 (7 of 1995), the Central Government, having been satisfied that it is necessary in public interest so to do, hereby suspends the operation of the notifications of the Government of India in the Ministry of Information and Broadcasting number S.O. 39(E) dated the 14th January, 2003 and SO. 792(E) dated the 10th July, 2003 read with the notification dated 14th January, 2003 on and from the date of publication of this notification until such date as may be notified by the Central Government. [F. No. 9/2/03-BP and L (Pt.)] U.S. Bhatia, Jt. Secy.

7. This Notification came to be assailed in the High Court of Madras in a number of writ petitions. On 4.3.2004 the following interim Order was passed by Justice K. Raviraja Pandian staying the suspension of CAS, which reads as under: This petition coming on for orders/hearing upon perusing the petition and the Affidavit filed in support thereof and upon hearing the arguments of M/s. A. Umasankar, Advocate for the Petitioner the Court made the following Order:

Interim Stay. Notice.

Sd/-

04/03/2004

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These Orders have been made absolute on 30.4.2004 in SCV v. Union of India by Justice A Kulasekaran of the High Court of Madras who again analysed and discussed the issues threadbare, as had been done by the Division Bench of this Court in terms of the aforementioned Judgment dated 4.12.2003.

8. The Petitioner herein had filed, on or about March 22, 2004, Appeal No.5(c) of 2004 before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), constituted under Section 14 of the Telecom Regulatory Authority of India Act, 1997 impugning the Orders of the TRAI passed on 23.2.2004 recommending the suspension of Case for three months. This Order was followed on 26.2.2004 by a further opinion to denotify or suspend CAS. The Government has palpably ignored Court Judgments/Orders of two Division Benches of this Court and two Learned Single Judges of the High court of Madras and has followed the advice of the TRAI, which the Constitution does not permit. It will be advantageous to recall that the Judgment of the Division Bench of this Court in Jay Polychem held that the Government was not empowered to suspend Case after it had been enforced. The interim Orders by the Madras High Court went further to stay the Notification which had the purpose of suspending the implementation of CAS. When the Appeal came up for consideration on 12.5.2004 before the TDSAT the latter Orders dated 30.4.2004 making the interim Orders absolute were taken note of. The Tribunal referred to the pronouncement of the Hon'ble Supreme Court in Kusum Ingots and Alloys Limited v. Union of India, to the effect that interim Orders of any High Court would be effective throughout the territories of India. The Appeal was withdrawn on the following day. Accordingly, there is no scope left to contend that the implementation of Case can be suspended or deferred or procrastinated upon. The failure to implement Case tantamounts, prima facie, to contempt of the Orders of this Court as well as of the High Court of Madras. As clearly comprehended by the TDSAT, the interim Orders of the Madras High Court were applicable throughout the territories of India. In fairness to the Respondents this situation had not been seriously opposed as is evident from the Orders dated 14.12.2005 which reads as follows: Mr. P.P. Malhotra, learned Additional Solicitor General, had in the course of arguments indicated that the Union of India is proposing to take a decision in the matter shortly and at least within 2005. Some time has elapsed since the last hearing. It is, therefore, likely that a decision has now been taken by the Union of India especially keeping in view the pronouncements of the Division Bench of this Court which have direct application to the controversy in question. List this matter for directions on 5.12.2005. However, on January 4, 2006 the Learned Additional Solicitor General informed the Court that the Respondents still required one month to finalize the matter. Till date the requisite action has not been taken.

Page 1324

9. It is palpably evident that the Respondents have chosen to sagaciously misunderstand the Orders of the Division Bench passed on 26.12.2003. It needs to be clarified that the Bench had recorded its prima facie view that Case enables the consumers to choose which channel they wish to view and pay for. On the metaphysical plane it was observed by the Division Bench that life involves experiments and, therefore, trial and error was inbuilt; as soon as deficiencies were noted attempts should be made to cure them; beneficiaries of status quo would always make grievance of hardships; but these should not interdict the process of correction. The Bench thereafter categorically stated that the Respondents were not being restrained as prayed for by the Petitioner; that the Respondents were allowed to go ahead with their scheme on Case in Delhi to be reviewed after a period of three months, within which all loopholes and difficulties encountered, if any, can be assessed and remedial measures can be taken. The court did not grant the prayers in the said petition, namely, the Consumer Coordination Council and Anr. v. Union of India wherein it had been prayed, inter alia, that Section 4A(1) of the Cable Television Networks (Regulation) Act, 1995 be struck down and/or that the Respondents may be restrained by an amendment from enforcing the said Section. It had also been prayed that the Court be 'pleased to issue a writ, order or direction in the nature of certiorari or any appropriate writ, order or direction quashing the Notification No. SO 39(E) dated 14th Jan., 2003 (Annexure I) whereby the Government of India has directed the implementation of Case System selectively in the four Metros'.

10. There is thus no warrant for the recital in the Notification dated 27.2.2004 to suspend the operation of the Notification dated 14.1.2003 and 10.7.2003.

11. I am in respectful agreement with the interim Orders dated 30.4.2004 passed by A Kulasekaran, J. in SCV v. Union of India read with the Judgment of the Division Bench in Jay Polychem. The interim Order of the Madras High Court have the effect of mandating the Respondents to implement Case in the NCT of Delhi as also in the cities of Mumbai and Calcutta. Case has been duly implemented in Chennai but not in the other three cities. The fact that a political party apprehends that a lawful measure beneficial to the public may cause embarrassment in an elections is no ground to illegally suspend an action which has already come into force.

12. Opposition to Section 4A of the Cable Television Networks (Regulation) Act, 1995, or the powers of the Union of India to suspend the implementation of Case is no longer res integra. I, therefore, do not propose to go into this question.

13. So far as the prayer for damages is concerned it will be worthy to reiterate that Justice A Kulasekaran had specifically noted that 'there is no provision in the impugned notification pertaining to compensation, hence, in the event of success in the writ petitions, the Petitioners will not have appropriate remedy in being awarded adequate damages. Hence, I feel it is necessary in the public interest and also to protect the right of the writ petitioners, the interim order granted by this Court shall be continued'. There are averments in this writ petition that the Petitioners have already invested several crores Page 1325 of rupees in order to ensure smooth implementation of CAS. Absence of remedy of damages impels the immediate implementation of CAS, which has all throughout been viewed as consumer friendly and conducive to public interest. The other prayers in the writ petition are granted and the Respondents are permitted four weeks time to implement CAS.

14. As no valid or even debatable defense whatsoever to the writ petition has been raised, and since the Petitioners have been unfairly compelled to approach this Court they are granted costs quantified at Rs.1,00,000/- which realistically is only a fraction of the costs incurred by the Petitioners. 15. The writ petition is allowed in these terms.