SUN TV LIMITED 367/368 ANNA SALAI TEYNAMPET CHENNAI Vs. TATA SKY LIMITED 264 OKHLA INDUSTRIAL ESTATE PHASE III NEW DELHI

JUDGEMENT

(1.) WHILE W.P. No.12827 of 2007 has been filed challenging the order dated 19.03.2007 passed by the second respondent in Petition No.291 (C) of 2006 and to quash the same, W.P. No.12826 of 2007 has been filed seeking to quash the order dated 03.04.2007 passed by the second respondent in E.A. No.3 of 2007.

(2.) SINCE the facts involved in these two writ petitions are same, they are decided by this common order and the facts which are necessary for consideration, are as under: a. TATA Sky Limited ("TATA" for short), the first respondent herein had filed a petition under Section 14 of the Telecom Regulatory Authority Act of India, 1997 in Petition 291(c) before the Telecom Dispute Appellate Tribunal (in short "the Tribunal), the second respondent herein seeking the relief of declaration that Sun TV Limited (in short 'sun TV"), the petitioner herein, is a defaulter in terms of Government of India order dated 01.06.2005 for having refused access of the channels on a non-discriminatory basis to TATA as laid down in the applicable regulation of TRAI and for a direction to Sun TV to discharge the statutory obligations under the interconnection regulation of TRAI dated 10.12.2004 to provide signals of its channels to TATA on the reasonable terms and conditions. b. It was stated in the counter-affidavit filed by Sun TV that it owns about 11 channels and its group companies viz., Gemini TV Pvt. Ltd. and Udaya TV Ltd. own 5 and 4 channels respectively and these Companies have authorized "Channel Plus" a unit of Kal Com Pvt. Ltd. to licence the said channels for broadcast distribution on DTH platform; in the absence of fixation of rate by the TRAI, TATA should pay the rate fixed by Sun TV and there was no cause of action for TATA to approach the Tribunal; as per 3.6 of the Telecom Interconnection Regulation Act, 2004, the broadcaster has to provide TV signals or turn down the request and such denial of request will enable the distributor to agitate the matter in the appropriate forum and there is no denial of request on the part of Sun TV as in fact, TATA had been asked to meet the concerned person in the office of Sun TV and none of TATA's people has met the Sun TV in-charge; the cable TV rate for 14 channels as declared to TRAI is Rs.83.67 per subscriber per month and not Rs.25/- per subscriber per month and that of Sun Network adds up to Rs.119/- per subscriber per month; TATA had created some documents as if a proposal had been sent to Sun TV, a term sheet had been handed over to Sun TV and a draft agreement also had been submitted to Sun TV and at no point of time, there was any discussion between Sun TV and TATA regarding of supply of channels though the former had addressed several letters to the latter to negotiate with its one Hansraj Saxena, the person in-charge. c. As per the order dated 21.11.2006 passed by the Tribunal that a meeting for amicable settlement be held on 24.11.2006, a meeting was held between the parties at Chennai on 24.11.2006 during which meeting, Sun TV informed TATA that signals of 20 channels of Sun TV group pending fixation of rates would be provided at the rate of Rs.85/- to the subscriber per month and this was not acceptable to TATA. d. On 24.01.2007, for TATA's request to pass an interim order in the petition, the Tribunal held that it cannot be acceded to due to the diversity of the stand between Sun TV and TATA. Aggrieved by the non-granting of an interim order, TATA filed a writ petition before the Delhi High Court seeking issuance of a writ of mandamus to the Tribunal to grant interim relief. In the meanwhile, since the Tribunal felt it difficult to pass final orders due to certain reasons, it insisted upon the counsel to place their arguments for an interim prayer and after hearing the arguments of both sides, it passed the order dated 19.03.2007 granting the interim prayer sought by TATA to the following effect:

(3.) MR. P.S. Raman, learned Senior Counsel appearing for the petitioner has contended that: a when a writ petition filed by the first respondent before the Delhi High Court challenging the order dated 24.01.2007 of the Tribunal is pending, the Tribunal ought not to have passed the interim order in P. No. 291 (C) of 2006, particularly because of its own rejection of the interim order and the fact that the principle of res judicata estops it from passing the same; b by passing the impugned order in Execution Application directing Sun TV to implement its order within three days, the Tribunal had made the modification petition filed by Sun TV infructuous;