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
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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
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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
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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
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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
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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
AIR 2021 SC 4214
2010 AIR SCW 7105 = (2010) 13 SCC 427
2023 LiveLaw (SC) 269
(2016) 4 SCC 346
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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
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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
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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
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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
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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
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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
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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
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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
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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.
::22::
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.
::24::
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-
(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
(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.
(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
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
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
