Kerala High Court
Indian Broadcasting And Digital ... vs The Telecom Regulatory Authority Of ... on 1 November, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
W.A.No.1649/2024 -:1:- 2024:KER:80988
'C.R.'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
WA NO. 1649 OF 2024
AGAINST THE JUDGMENT DATED 07/10/2024 IN WP(C) NO.29443 OF
2024 OF HIGH COURT OF KERALA
APPELLANT/S:
1 INDIAN BROADCASTING AND DIGITAL FOUNDATION
C-301-303, THIRD FLOOR, ANSAL PLAZA, KHEL GAON MARG, NEW
DELHI REPRESENTED BY ITS AUTHORIZED SIGNATORY SHRI. S.
RADHAKRISHNAN NAIR, PIN - 110049
2 VIACOM18 MEDIA PRIVATE LIMITED
31ST FLOOR, TOWER-4, ONE UNITY CENTER SENAPATI BAPAT
MARG, PRABHADEVI, MUMBAI, MAHARASHTRA REPRESENTED BY
ITS AUTHORIZED SIGNATORY SHRI. GAUTAM DUBEY, PIN - 400013
3 STAR INDIA PRIVATE LIMITED
STAR HOUSE, URMI ESTATE, 95, GANPATRAO KADAM MARG,
LOWER PAREL, MUMBAI ALSO AT 3RD & 4TH FLOOR, PRESTIGE TMS
SQUARE, OPPOSITE OBERON MALL, NH-47 BYPASS, EDAPALLY,
KOCHI – 682024 REPRESENTED BY ITS AUTHORIZED
SIGNATORY SHRI. BIJU K S, PIN - 400013
W.A.No.1649/2024 -:2:- 2024:KER:80988
4 LAURIANA FERNANDES
AGED 42 YEARS
D/O. MR. FRANCIS FERNANDES, CREATIVE DIRECTOR, VIACOM18
MEDIA PRIVATE LIMITED RESIDING AT 23, OUR LADY OF AMPARO
CHS LTD., BEHIND HOLY CROSS CHURCH, PREMIER ROAD, KURLA
(W), MUMBAI, MAHARASHTRA, REPRESENTED BY P.A HOLDER
SHRI. GAUTAM DUBEY, S/O. MR. SUNIL KUMAR DUBEY, AGED 39
YEARS, RESIDING AT 352, WINDSOR GREENS, F-28, SECTOR 50,
NOIDA, UTTAR PRADESH, PIN - 400070
5 KISHAN KUMAR MS
AGED 46 YEARS
TV CHANNEL HEAD, ASIANET CHANNEL RESIDING AT 4033,
MARINA ONE, MARINE DRIVE, KOCHI, PIN - 682018
BY ADVS.
SR.ADV.AMIT SIBAL FOR A1
SR.ADV. MUKUL ROHATGI, FOR A2, AND A3
SR.ADV SANTHOSH MATHEW, FOR A4 AND A5
MATHEW NEVIN THOMAS
ARUN THOMAS
VEENA RAVEENDRAN
KARTHIKA MARIA
ANIL SEBASTIAN PULICKEL
KURIAN ANTONY MATHEW
SHINTO MATHEW ABRAHAM
LEAH RACHEL NINAN
JOE S. ADHIKARAM
NOEL NINAN NINAN
KARTHIK RAJAGOPAL
APARNNA S.
SIDHARTH CHOPRA
RANJEET SINGH SIDHU
SWIKRITI SINGHANIA
SRISHTI KUMAR
W.A.No.1649/2024 -:3:- 2024:KER:80988
RESPONDENTS:
1 THE TELECOM REGULATORY AUTHORITY OF INDIA
4TH, 5TH, 6TH & 7TH FLOOR, TOWER-F, WORLD TRADE CENTRE,
NAUROJI NAGAR, NEW DELHI REPRESENTED BY ITS SECRETARY,
PIN - 110029
2 ALL INDIA DIGITAL CABLE FEDERATION
236 OKHLA INDUSTRIAL ESTATE PHASE – III NEW DELHI,
INDIA REPRESENTED BY ITS SECRETARY GENERAL MANOJ
PRAKASH CHHANGANI., PIN - 110020
3 TATA PLAY LIMITED
REGIONAL OFFICE NORTH, TATA COMMUNICATIONS COMPLEX,
MANDI ROAD, P.O. CHHATTARPUR, NEW DELHI - 110074,
REPRESENTED BY ITS AUTHORIZED SIGNATORY SHRI. AMANDEEP
BAWA, PIN - 110074
4 BHARTI TELEMEDIA LIMITED
HAVING ITS REGISTERED OFFICE AT BHARTI CRESCENT, 1, NELSON
MANDELA MARG VASANT KUNJ, PHASE – II NEW DELHI.
AND REGIONAL OFFICE AT SL AVENUE, SERVICE ROAD, NH BYPASS,
KUNDANNOOR, KOCHI, ERNAKULAM, REPRESENTED BY ITS CIRCLE
HEAD-LEGAL AND REGULATORY, PIN - 110070
5 DISH TV INDIA LTD.
OFFICE NO. 803, 8 TH FLOOR, DLH PARK, SV ROAD, GOREGAON
(WEST), MUMBAI - , REPRESENTED BY SIGNATORY SOPAN GHOSH,
AGED 51 YEARS, S/O LATE PRABIR KUMAR GHOSH, RESIDING AT F-
176/T-2, DILSHAD COLONY, DELHI 110095, PRESENTLY WORKING
AS HEAD - LEGAL & REGULATORY., PIN - 400062
6 PRASAR BHARATI
TOWER B, DOORDARSHAN BHAWAN, COPERNICUS MARG NEW
DELHI, PIN - 110001
BY ADVS.
TUSHAR MEHTA, SOLICITOR GENERAL OF INDIA FOR R1
SR.ADV.SAKET SINGH, FOR R1
JAISHANKAR V.NAIR, CGC, FOR R1
ARJUN NATARAJAN FOR R1
ARUN KATHPALIA FOR R2
SR.ADV.ABRAHAM VAKKANAL FOR R3
SR.ADV.RAKESH DWIVEDI FOR R4
GOPIKRISHNAN NAMBIAR M
W.A.No.1649/2024 -:4:- 2024:KER:80988
K.JOHN MATHAI(K/413/1984)
JOSON MANAVALAN(J-526)
KURYAN THOMAS(K/131/2003)
PAULOSE C. ABRAHAM(MAH/58/2006)
RAJA KANNAN(K/356/2008)
JAI MOHAN(D/2454/2009)
R.V.SREEJITH
PAUL ABRAHAM VAKKANAL
ANIRUDH INDUKALADHARAN
JEEVAN BABU
VINEETHA SUSAN THOMAS
MOHAMMED SADIQUE T.
SHANKAR V.
T.H.ABDUL AZEEZ FOR R5
T.C.KRISHNA
TEJVEER SINGH BHATIA
ROHAN SWARUP
KUNAL VATS
SR.ADV. RAJIV NAYAR FOR R3
NITIN KALA FOR R3
MANSOOR ALI FOR R3
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.10.2024, THE
COURT ON 01/11/2024 DELIVERED THE FOLLOWING:
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'C.R.'
A.MUHAMED MUSTAQUE & P.M.MANOJ, JJ.
-----------------------------------------
W.A.No.1649/2024
-----------------------------------------
JUDGMENT
Dated this the 1st day of November, 2024
A.Muhamed Mustaque, J.
The appellants filed a writ petition seeking the following
reliefs:
i. Issue a writ of certiorari or any other appropriate writ, order, or
direction setting aside Clause 3 of 2024 Tariff Order;
ii. Issue a writ of certiorari or any other appropriate writ, order, or
direction setting aside Fifth Proviso to Clause 3(3) of the 2017 Tariff
Order;
iii. Issue a writ of certiorari or any other appropriate writ, order, or
direction setting aside Clause (a) of Second Proviso to Regulation 6(1) of
2017 Regulations; and
iv. Issue such other appropriate writ, order, or direction which this
Hon'ble Court may deem fit and just in the circumstances of this case.
The relief sought above indicates that the appellants challenged
clause (a) of the second proviso to Regulation 6 of the
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Telecommunication (Broadcasting and Cable) Services
Interconnection (Addressable Systems) Regulations, 2017. They
also contested the Telecommunication (Broadcasting and Cable)
Services (Eighth) (Addressable Systems) Tariff Order, 2017
(hereinafter referred to as the Tariff Order). This Regulation,
formulated by the Telecom Regulatory Authority of India (TRAI)
under Section 36 of the TRAI Act, holds statutory colour. The Tariff
Order represents a decision by TRAI and, therefore, is subject to
judicial review.
2. In Bharat Sanchar Nigam Limited v. Telecom Regulatory
Authority of India and Others [(2014) 3 SCC 222], the Hon'ble
Supreme Court ruled that the Telecom Disputes Settlement and
Appellate Tribunal (TDSAT) lacks jurisdiction to hear challenges
against regulations framed by TRAI under Section 36 of the TRAI
Act. The learned Single Judge who heard the appellants' challenge
ruled that the writ petition was not maintainable, as the same
petitioners had previously raised similar challenges before the
Madras High Court and, ultimately, the Supreme Court. In Star
India Private Limited v. Department of Industrial Policy and
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Promotion and Others [(2019) 2 SCC 104], the Supreme Court
ultimately upheld the validity of the same regulation. Consequently,
the learned Single Judge dismissed the writ petition, declaring it not
maintainable. However, during the dismissal, the Judge noted that
a challenge against the Tariff Order is indeed maintainable before
TDSAT. After evaluating the matter, the Judge concluded that the
contested provision in the Tariff Order cannot be challenged on the
basis that it violates Article 14 of the Indian Constitution.
3. We hold the view that the writ petition was maintainable
in as much as there is a specific challenge to the regulation. We are
also of the view that the learned Single Judge had erred in going
into the merit of the challenge against the Tariff Order after
observing that the writ petitioners had an efficacious alternate
remedy challenging the provisions before the TDSAT. However, we
find that this matter ought not have been entertained by this court
for the reasons to be stated hereafter.
4. The challenge to regulation earlier made by the writ
petitioners attained finality by the judgment of the Supreme Court
reported in Star India's case (supra). The very same regulation is
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questioned in the writ petition. This Court cannot entertain a
challenge to the same regulation as it would amount to reopening
the judgment of the Supreme Court.
5. The learned Senior Counsel for the first appellant, Shri
Amit Sibal, cited the Supreme Court judgment in Mathura Prasad
Bajoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoy [(1970) 1
SCC 613], arguing that the principle of res judicata does not apply
if a specific issue was not raised in prior litigation. According to Shri
Sibal, the previous challenge addressed the regulation in the
context of the Copyright Act, 1957, rather than on broader
grounds. The current challenge, however, contends that regulations
are challenged in the light of the Tariff Order. Further submitted
that Tariff order infringes on the petitioners' fundamental rights
under Article 19(1)(a) of the Indian Constitution. He further argued
that the TDSAT lacks the authority to address challenges based on
fundamental rights violations.
6. The learned Senior Counsel Mr. Mukul Rohatgi,
representing appellants 2 and 3, argued that it is essential to
consider the context in which the challenge is brought and the legal
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principles established over time. He noted that as circumstances
evolve, the foundation of earlier judgments may change, and
constitutional courts have a duty to interpret fundamental rights in
line with these changes. He emphasized the importance of context
in such challenges and relied on the Supreme Court's ruling in
Secunderabad Club v. Commissioner of Income-Tax [(2023) SCC
OnLine SC 1004]. Additionally, Mr. Rohatgi cited Union of India and
Others v. Dhanwanti Devi and Others [(1996) 6 SCC 44], where the
Supreme Court held that a precedent is defined by the core of its
decision and ratio, and each decision should be applied based on
the specific facts proven in that case.
7. The learned Solicitor General, Shri Tushar Mehta,
representing the first respondent, argued that the prayers
challenging the regulation cannot be entertained by this Court, as
doing so would effectively reopen the binding precedent set by the
Supreme Court in Star India's case (supra). He further elaborated
by asserting that the TDSAT is fully empowered to review the Tariff
Order on any grounds, including those involving alleged violations,
as outlined in Section 14(a)(7) of the TRAI Act.
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8. The learned Senior Counsel Shri Rakesh Dwivedi,
representing the fourth respondent, contended that the writ petition
is unfounded and, therefore, not maintainable. He argued that once
a challenge to the regulation has been unsuccessful, it cannot be
reasserted on different grounds that may be relied on by the
challenging party. Shri Dwivedi cited the Supreme Court judgments
in Suganthi Suresh Kumar v. Jagdeeshan [(2002) 2 SCC 420] and
Omprakash Verma and Others v. State of Andhra Pradesh and
Others [(2010) 13 SCC 158]. In these cases, the Supreme Court
held that the legal principles established by the Supreme Court
cannot be circumvented by the High Court simply because not all
grounds were presented in a previous challenge.
9. The learned Senior Counsel Abraham Vakkanal for the
third respondent also supported the arguments of the learned
Senior Counsel who appeared for the respondents and submitted
that the writ petition was not maintainable.
10. We have already noted that the writ petition is
maintainable. However, just because the writ petition is
maintainable does not mean this Court must entertain a challenge
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to the regulation, especially if it cannot provide any relief due to the
binding judgment of the Supreme Court.
11. Typically, a statutory regulation can be challenged on
two grounds: first, for violating fundamental rights, and second, for
being inconsistent with the parent Act. Once the Supreme Court
has dismissed a challenge to the regulation, any court bound by the
declaration of law under Article 141 of the Constitution cannot
revisit a binding judgment of the Supreme Court on different
grounds. It is important to differentiate between precedent and res
judicata. Res judicata pertains to the parties involved in a particular
case, while precedent refers to a binding declaration of law that
applies to courts or authorities and is independent of the rights and
obligations of the parties involved. In other words, precedent falls
within the category of case law in the hierarchical system of
adjudication and serves as a source of law that binds inferior
authorities to the legal declarations made by superior authorities.
The binding nature of precedent brings in certainty of law to be
followed by all courts and authorities. In contrast, res judicata
pertains to procedural rules that bind litigating parties to previous
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judgments on the same issue. It is the ratio decidendi that
determines the binding nature of a precedent, not the cause of
action. In the Star India's case decided by the Supreme Court, the
ratio decidendi pertained to the challenge against the validity of the
regulation, while the cause of action in that instance may have
been related to the violation of broadcasters' copyright, the current
case involves the violation of fundamental rights. The cause of
action refers to the bundle of facts that give rise to a legal action,
which is crucial in determining the applicability of the principles of
res judicata but not necessarily on binding nature of precedent.
Only the Supreme Court has the authority to revisit its own
declared law; no other court can do so. The Supreme Court
addressed this issue in Palitana Sugar Mills (P) Ltd. and Another v.
State of Gujarat and Others [(2004) 12 SCC 645], where it stated
in paragraph 62:
62. It is well settled that the judgments of this Court are
binding on all the authorities under Article (142*) 141 of the
Constitution and it is not open to any authority to ignore a
binding judgment of this Court on the ground that the full facts
had not been placed before this Court and/or the judgment of
this Court in the earlier proceedings had only collaterally or
incidentally decided the issues raised in the show-cause
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notices. Such an attempt to belittle the judgments and the
orders of this Court, to say the least, is plainly perverse and
amounts to gross contempt of this Court. We are pained to say
that the then Deputy Collector has scant respect for the orders
passed by the Apex Court. (sic)
Therefore, this Court cannot entertain the challenge to the
regulation and is bound by the Supreme Court judgment in Star
India's case (supra).
12. The next question concerns the challenge to the Tariff
Order. The Tribunal is an expert body of members with specialized
knowledge in their respective fields. While constitutional courts are
competent to take up such challenges, specialized tribunals
addressing specific subjects cannot be equated with constitutional
courts. Constitutional courts must consider the economic
implications as well as the policy dimension of TRAI's decisions
requiring a perspective that takes into account various angles of
consideration. There is a need for specialized tribunals because
constitutional courts are not equipped to handle specialized fields or
subjects. The implementation of law can involve multiple
dimensions, including market, economic, environment, social, and
political aspects. The intersection of law with specialized areas
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necessitates a nuanced approach that focuses on the impacts
resulting from the enforcement of such laws--something that
traditional constitutional courts typically cannot address effectively.
The traditional courts often tend to focus on a dogmatic
interpretation of the law.
13. The learned Solicitor General placed reliance on the
judgment of the Supreme Court in Cellular Operators Association of
India and Others v. Union of India and Others [(2003) 3 SCC 186]
wherein the Supreme Court considered the amplitude of jurisdiction
of TDSAT and held in para.27, thus:
27. TDSAT was required to exercise its jurisdiction in terms of Section
14-A of the Act. TDSAT itself is an expert body and its jurisdiction is
wide having regard to sub-section (7) of Section 14-A thereof. Its
jurisdiction extends to examining the legality, propriety or correctness
of a direction/order or decision of the authority in terms of sub-
section (2) of Section 14 as also the dispute made in an application
under sub-section (1) thereof. The approach of the learned TDSAT,
being on the premise that its jurisdiction is limited or akin to the
power of judicial review, is, therefore, wholly unsustainable. The
extent of jurisdiction of a court or a tribunal depends upon the
relevant statute. TDSAT is a creature of a statute. Its jurisdiction is
also conferred by a statute. The purpose of creation of TDSAT has
expressly been stated by Parliament in the amending Act of 2000.
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TDSAT, thus, failed to take into consideration the amplitude of its
jurisdiction and thus misdirected itself in law.
14. We cannot agree with Mr. Sibal's arguments that
TDSAT is incompetent to address challenges based on the violation
of fundamental rights. There is a fundamental distinction between
enforcing fundamental rights and exercising judicial review
concerning those rights. In the former case, only constitutional
courts have the authority to enforce fundamental rights. However,
regarding judicial review based on fundamental rights parameters,
any authority with review power can determine whether a decision
or order aligns with fundamental rights or applicable law. Therefore,
we conclude that the challenge to the regulation must fail in light of
the binding judgment. We grant the appellants the liberty to
challenge the Tariff Order before TDSAT.
The learned Senior Counsel, Shri Santhosh Mathew,
representing appellants 4 and 5, requested that the interim order
issued by this Court be maintained to allow the appellants to
approach TDSAT should any adverse orders arise from this Court.
Taking note of the request as above, we order that coercive steps
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shall be deferred for a period of two weeks to enable the appellants
to invoke alternate remedy.
The writ appeal stands dismissed as above.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P.M.MANOJ
JUDGE
ms
