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Judgment
S. K Singh, Chairperson
Boih the parties have been heard in detail I hey have also filed written submissions (hr the purpose of disposal of the petition filed long back on
25.07.2016.
The petitioner is a Multi-System Openuort MSO). engaged in tlic business of transmission of broadcast through cable network since last several
years The respondent No.l. i.e. ZEE Entertainment Enterprises Pvt. Ltd.(ZEL) is a broadcaster utid a media and entertainment company. It is
distributing ZEE group of channels und also Sports channels of respondents nos.2 and 3. namely, l aj Television India Pvt. Ltd. and Turner
International India Pvt. 1 id. Admittedly, ZEE has been appointed as a distributor of channels ol respondents Nos.2 and 3 from 01.09.2016. Both the
parlies are service providers and are amenable to the jurisdiction of this Tribunal.
In order to appreciate the case of the petitioner it is useful to extract Para J of the petition which discloses the nature of relief sought by the
petitioner against a notice for disconnection dated 18.06.2016 and also Partts 5 and 6 containing relevant averments in respect of Memorandum of
Understanding (Agreement) between the parties. Paros 4. 5 and 6 arc as follows:
“4. The petitioner by way of the present Petition seeks to stay the illegal and arbitrary deactivation notice issued by the Respondents under clause 6.1 of the
Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) Regulations. 2012 (DAS Regulations) for
non-payment of the Outstanding license fee amounting to Rs. 89,58,500/-Â & Area Transgression issued by Respondents on 8.06.2016 against all addressable
Distribution Platform which was dispatched by lilt: Respondent No.l tin 18.06.2016 and was received by the Petitioner on 21.06.2016 (clearly reflected from the
envelope of the notice received by the Petitioner). In the said notice the Respondents are claiming outstanding amounts as per Agreements executed hy the
Petitioner with the Respondent Nos.2 & 3. However no date of the Agreements have been specified. The Petitioner has not executed any Agreements with the
Respondent but has executed memorandum of Understandings with die Respondents. The copy of the said notice along with the envelope are collectively annexed
herewith as Annexure-PI colly.
5. The petitioner lias executed a Memorandum of Understanding dated 1611' November, 2015. with Respondent No 2 Similarly the Petitioner has also executed a
Memorandum of Understanding doted 16th November, 2015, with Respondent N'o.3. That die term in both the MOU’s was for a period of 12 months commencing
from 01.01.2016 to 31.122.016. 1 be copies of both the aforesaid Memorandum of Understandings dated 16'"" November. 2016 are annexed herewith and marked us
Anncxurc- P2 & P3 respectively.
6. The Petitioner had executed these Memorandum of Understandings dated 16.1! 2016 apprehending that the implementation of DAS Phase III would be front
01.01.201 6 as declared by the government in its notification. The term of the Memorandum of Understanding vvas for u period of 12 months commencing from
01.01.2016 to 31.12.2016. l'hnt during the implementation of DAS Phase I & 11 there were postponements hence the Petitioner had n clnuse to that effect in its MOU in
event of non implementation of DAS, as it was only executed for DAS Phase III.â€
4. Petitioner has assailed and disputed the correctness of invoices and demands made by the respondents lor the period from 01.01.2016 to
31.12.2016 on the mound that this period was under analog regime and therefore, the Mol' signed for this period dated 16.11.2015 for DAS regime
chargeable ut higher roles would not apply, particularly in view of clause 2 in the Memorandum signed with respondents Nos.2 and 3 respectively. The
term of the agreement as per clause 2 has been prescribed as follows:
Term:
The term of the license granted hereunder shall for a period of twclvcf 12) months commencing on January 1. 2016 and valid until 311 December. 2016. unless
terminated earlier in accordance with this MOU. In the event the date of implementation of DAS Phase 111 Is extended beyond I"" January’ 2016, the Term of this
MOD shall commence from :l»c date of implementation of DAS Phase III and shall be valid only until 31"" December, 2016. unless terminated earlier in accordance
with tills MOU.â€
5. It is petitioner's case that the implementation of DAS Phase-111 was at The relevant time stayed indefinitely by judicial orders. Petitioner has
referred to rin order by the Hou’ble High Court ot"" KarnnUik.ii dated 27.02.2016 which has been brought on record at the time of hearing as
Annexure -E TO an affidavit filed on 05.02.2021.
6. It is not in dispute that petitioner’s same writ petition bearing No. 10184^2016 was transferred from Karnataka High Court to Delhi High
Court by an order dated 02.06.2016 because so many other similar petitions from Kumataku and other places had also been similarly transferred to
Delhi High Court by an order of the Supreme Court 01.04.2016.
The stand of the respondent is that the petitioner is bound by the terms of the Memorandum of UndersLmdingt Agreement) und pay accordingly. It
is further stand of the respondent ZEE that petitioner had made a false claim that the date of implementation of DAS Phase-111 has been extended to
any date beyond 01.01 _2016. The Terms of the Moll even on the basis of dale of implementation of DAS Phase-HI bod commenced on 01.01 2016
and lasted till 31.12.201 o
In its short reply the respondent ZEE has affirmed that parties have executed MoU dared 16.11.2015: it came into effect from 01.01.2016; Invoices
on the basis of said Agreement were raised in time and since January 2016 the petitioner never raised any objections to the invoices and only as on
afterthought; for supporting its case it raised the issue of non-implementation of DAS Phase-Ill for the first time through a letter of 11.07.2016 which
was received by the respondent only on 29.07.2016.
In the reply respondent has referred to three different writ petitions to show that in similar matters the Karnataka High Court granted a limited
interim protection that the authorities of the State, who sdonc were made respondent, will nnt effect disconnection nf signals. From three orders of
Karnataka High Court annexed as Annexures R-I, R-2 and R-3 it was shown that by such interim orders the date of implementation of DAS
Phase-Ill which was notilied by the competent authority as 01.01.2016 was never extended. In supersession of the earlier dale for implementation of
DAS Phase-Ill by 30,09.2014 as notified in 2011, the competent authority vide Gazette Notification of 11.0,9.2014 extcuded that dale in respect of
DAS Phasc-Ill from 30,09.2014 to 31.12.2015.
According to ZEE then: is no justification for the petitioner not to pay the invoices raised as per agreement because date for implementation of
DAS Fhusc- 111 was never extended beyond 31.12.2015 mid petitioner’s contention that it was so extended to 01.02.2017 by virtue of notification
dated 23.12.2016 is absolutely incorrect and baseless. That notification is available as Anncxure C(colly.) at pg-155 of the affidavit of 05.02.2021
arid shows that only the date specified in the notification of 11.09.2014 in respect of DAS PhaSe-1 V ureas was extended from 31.12.2016Â to
31.03.2017. It further shows that in respect of DAS Phnse-m areas the notification mentions that the extended date is only upto 31.12.2015 as
indicated in the notification of 11.09.2014.
Ml the three notifications, of 11.11.2011 I. II .09.2014 and 23.12.2016. have been issued in exercise of statutory power available to the
Government of India under sub-section (1) of the Section 4 A of the Cable Television Networks!Regulation) Act. 1995{the CTN Act). ITiere is no
other notification to show rhut the date for implementation of DAS Phase-111 was extended beyond 31.12.2015.
Learned counsel for the petitioner lias placed strong reliance upon two documents available ori the initial two pages of Anncxure C(colly.) to
support the submission that the Government of India had in fact extended the date specified lor implementation of DAS Phaae-111 from 31.12.2015 to
31.01.2017. The first document is a Notice by the Ministry of Information & Broadcasting. Government of India dated 22.12.2016. I he other
document is a Press Release of nhnusi the same contents as in the Notice, issued on 23.12.2016 b> Press Information Bureau, Government oflndia,
Ministry of Information & Broadcasting. These document's refer to the notifications under Section 4A of the CTN Act and reiterate that it is
obligatory for every cable operator to transmit or retransmit programmes of any channel in on encrypted form through a Digital Addressable
System!DAS) with effect from the dates mentioned in those notifications. Thereafter, there is a reference to stay orders passed by various high courts
leading to order by the Hon’ble Supreme Court and transfer of all such cases to Delhi High Court for hearing and disposal. It is further mentioned
that most of the cases have been disposed of by Hon’ble Delhi High Court. Hence, ""in order to provide adequute time for transition of those
subscribers who had not switched to digital mode of transmission in the DAS Phase-ill areas on account of the ongoing court proceedings, it was
decided that broadcaster, MSOs and I CO:- will be allowed further time upto 31.0125017 after which no analog signals shall be carried in Phase-TIT
areas'*. It was also stated that no Anther extension shall be given in future.
13. Learned counsel for the respondent has rightly pointed out that the statutory Gazette Notification of 23.12.2016 on hist two pages of the same
Annexure C(colly.) clearly disclose that the statutory authority did not extend the date for implementation of PAS Phase-111 beyond 31.12.2015 and
only the date lor DAS Phase-IV was extended upto 31.03,2017. According to learned counsel, the administrative decisions reflected by the Notice and
the Press Release do not claim to extend the time for DAS Phase-111 notified on 11.09.2014 in terms of the statutory provisions. He further submits
that statutory Gazette Notification of 11.09.2014Â could have been modified only by a similar notification as issued on 23.12.2016Â even in respect
of DAS Phase-Ill but since that was not done the Notice and the Press Release cannot supersede Gazette Notification of 11.09.2014. He has pointed
out that CTN Act provides coercive action also. Under Sections 11 and 12 uny authorized officer con seize and confiscate equipments for violation of
provisions like Section -1A that may also attract punishment under Sections 16 anti 17 of the CTN Act. However, no court can take cognizance of
such offences except upon u complaint in writing hv any authorized officer. According to learned counsel the executive or administrative decisions in
the Notice and Press Release only gave a notice and warning that violation of provisions of Section 4A due to disregard of the notifications issued
thereunder will no longer be overlooked after 31.01.2017.
On a careful perusal of the documents in Annexure C(colly.) the submissions advanced on behalf of respondent ore found to have merit. All the
documents in that Annexure support the stand of the respondent tthat the date for implementation of If AS Phase-IIl notified on 11.09.2014 was never
subjected to any further extension because that could be done only through a gazette notification in exercise of statutory power under Section 4A of
CTN Act. No such power Iws been exciciscd by tilt- competent authority for the purpose of extension afier 31.12.2015 for DAS Phase-III. The
Notice and the Press Release do not claim to be uttdcr uny statutory provision such as Section 4A. They only refer to the tactual situation due to court
cases and forbearance rajuiied because of matters pending in the courts, particularly Delhi High Court. All concerned were given notice that the non-
compliance of Section 4A should not continue beyond 31.01.2017Â because most of the cases had been disposed of by Delhi High Court
Accordingly, it. is found that the competent authority under the CTN Act has not extended the date specified for implementation of DAS Phase-111
beyond 31.12.2015Â Hence, on this ground at least the petitioner cannot succeed.
The other limb of petitioner's stand is based upon the interim orders passed by the Karnataka High Court as well as other courts. ITic petitioner
lias annexed and relied upon order of High Court of Komuuika dated 27.02.2016. A perusal of thul order shows that this interim order was against the
Ministry of Information &. Broadcasting and the Deputy Commissioner of the concerned district and It directed them not to disconnect the TV signals
through the petitioner’s cable network Lill the next date of hearing. According to learned counsel since the TV signals on the date of the order
were in analog mode, the order for not effecting disconnection would amount to extending the date for implementation of DAS Phase-in beyond
31.12.2015.
16. In reply to die above, learned counsel for the respondent has reiterated his stand that there was no judicial order interfering with the date
specified in the statutory Notification under Section 4A of the CTN Act issued in 2014. lie has further pointed out that respondents were not made
parties to the writ petition filed by the petitioner, the contents, scope and relief sought in the petitioner’s writ petition were material aspects but the
petitioner has withheld those materials by not placing the writ petition on record. It has also been pointed out that petitioner has not shown that the
limited interim order was extended on any future date. On behalf of petitioner several orders passed by Delhi High Court in similar/connected writ
petitions have been placed through a compilation fur consideration. One order of Karnataka High Court passed in petitioner’s writ petition dated
02.06.2016 shows that the records were ordered to be send to Delhi High Court. Orders passed by Delhi High Court in the bunch of petitions
transferred by the Supreme Court show that in one of the judgments delivered on 03.11.2016, it was noticed that the last extension for implementation
for DAS Phasc-lII was granted upto 31.12.2015. On a perusal of petition, the High Court found that the petitioner was only seeking for grant of some
more time for installation of digital Set-Top Boxes(STBs) and for changeover to DAS. The court held that even after the tiling of the petition
approximately 10 months' time had elapsed and hence there was no justification in granting any more time for completion of installation of digital
STBs. The writ petition was accordingly dismissed Another judgment dated 01.12.2016 in the ease of Rohtak Cable Operators' Assn,; W.P.(C)
No.7178/2016 shows that the petitioner had challenged not the original Notification dated 11.11.2011 undei Section 4A, but only the amendment
notification dated 11.09.2014 whereby time had been extended tiil 31,12.2015 for implementation of DAS Ohase-JIl. The High Court found no merit in
such challenge The writ petition was ultimately disposed of directing to complete the installation of STBs and changeover to DAS within a period of
two weeks. A similar order was passed in other batch of cases on 07.122016. There is nothing on record to show as to what happened to petitioner's
writ petition after the first order granting interim relict against disconnection.
A discussion of the judicial orders as made above shows that the courts have not interfered with the statutory notification under Section 4A of the
CTN Act last issued in respect of DAS Phase-Ill on 11.09.2014. Hence, the petitioner's claim that the date for implementation of DAS Phase-III got
further extended beyond 31.12.2015Â on account of the judicial orders is not supported by a careful reading of the orders. I he matter as per order of
the Supreme Court was finally decided b> the llon’ble Delhi High Court and it did not interfere with the statutory notifications. On the basis of
facts, some accommodation of time was granted to complete the process if the same had bccri left incomplete. In other words, violation of CTN Act
for a limited time was ignored. Such indulgence and forbearance by court* and the concerned department cannot be accepted as a legal extension of
the date of implementation of DAS Phase-111 beyond 31.12.2013 so as to adversely affect the respondents’ invoices and claims on account of
provisions in Clause 2 of the MOt.l dated 16.11.2015 which lias already been extracted earlier.
According to learned counsel For the petitioner another agreement between the parties dated 28.12.2015 tor the period 01.04.2015 to 31.03.2016
or till the date of implementation of DAS Phase-Ill whichever is earlier, also supports the case of the petitioner tiutt the analog regime continued till
31.01.2017 as should also be inferred from the notice ami Pies?. Releusc in Annexure C(colly.) The above agreement as contained in Anncxure P-
8 is between respondent No.2, M/s Taj Television and Petitioner's affiliate in Raicbur District. It is admittedly for die period beginning from 01.04.2015
when the analog regime was continuing. The expiry date in this agreement is mentioned as 31.03.2016 or the date of implementation of DAS Phase-Ill
in the urea, whichever is earlier. The aforesaid facts do not support the case ot the petitioner that the date for implementation of DAS Phase-ITl was
extended beyond 31.12.2015.
19. The pleadings and the materials ahow that invoices os per MOU of 16.It.2015 were issued regularly for die munlhs from January to May 2016
and when the duos remained nnpuid, the same was made the ground for impugned notice of disconnection dated 0S.06.2016 (Aiutexure-l). The
notice mentions the unpaid dues TO be Rs.89,58.500/- in toud for die period till 30.05.2016 based upon billings till rhe month of April. 2016 for the
DAS notified areas. Further claim for lute payment interest is also indicated. Ihc notice discloses an allegation that die petitioner had been indulging in
die net of unaudiorized retransmission of pay channels beyond the area agreed hetween the parties.
The issue of area transgression does not survive aud has not been argued by the parties. It is relevant to note at this juncture that MA No.27/2018
was filed on behalf of ZEE on 30.01.2018 fur appropriate direction. It was brought to the nonce of the Tribunal that subsequent developments had
taken place during die pendency of the petition and the parties had entered into a mutually agreed Interconnect Agreement dated 02.08.2017 for the
period 01.01.2017 to 31.12.2017 or till the date of implementation of the 2017 tariff order dated (J3.03.2017, whichever is earlier. The Tribunal was
informed through that MA that vide the agreements the parties had agreed that the past outstandings to the tune of Rs.1.10,49,768'- {qua ZEE
channels), Rs.98,16,832/- {qua Turner channels) and Rs22,41.335/- {qua Taj Sports channels) as on 23.11.2016 shall be subject to die final
determination of the present petition. The Agreements of 02.08.2017 are Annexure A2 to the said MA.
The above MA was considered by the Tribunal on 31.01.2018 and the new agreement of 02.08.2017 was noticed although it hud ulso expired on
31.12.2017. This Tribunal clarified that in view of subsequent development showing that the parties had moved forward und keeping in view the earlier
order passed in B.P No.-1123/2016, the dispute in the present petition relates only to an earlier agreement and shall remain confined to same.
22. In the petition, the petitioner ha* further claimed in Para It) that although the MOU included the area of Haveri, the said area was under a
franchisee Havcri Capital Network which took over the entire business from 01.01.2016 and therefore, payments for the said area from 01.01.2016
would be made by Haven Network and not by the petitioner Allegedly this was intimated to the respondent orally in February and March 2016 and
therefore, although invoices raised for that area also, but the petitioner is not liable to pay for that area. In support of this pica petitioner has annexed a
letter dated 21.06.2016 (Annexure P-7), On this issue learned counsel for the petitioner hns also referred to a letter dated 26.07.2016 (Annexure K
to the rejoinder) by the said letter which is subsequent to filing uf the petition, a third party - Net 9 has written to Taj Television that the monthly
subscription fees fur the Haven Network shall be paid by that entity lor the period beginning from 01.012016. l hc stand of the respondent is that till the
period of the MOU/Agreemcnl expired in December 2016 the petitioner did not seek any modification in the agreement for exclusion of Haveri
Network nor any third entity approached the respondent for an agreement to take over the liability or the petitioner for the Haveri areu. In such
circumstances, it has heen submiued on behalf of the respondents that petitioner was only using different excuses and ploys for not paying the lawful
dues in time. The submission appears to have merit. In ahsence of an agreement for die Havcri Network with any third entity, there could be no
occasion for the respondents to raise invoices against a third party and seek payments.
23. On behalf of petitioner it has been argued on the basis of updated statement of accounts in Annexure-B to the affidavit of 05.02.2021 that till
December 2016. as per case of the petitioner and on the basis of rates in the previous unalog agreement, it made excess payments to ZEE of Rs
l_24.94.222/- It has further claimed in the accounts on amount of Rs.63 lakhs on the plea that it is entitled to omit die monthly subscription charges for
Huvcri area. On that basis the total excess payment is said to be Rs. 1.87,94,222/-. According to learned counsel, the petitioner’s case deserves to
be accepted and therefore, the aforesaid amount should be ordered to be returned/refunded to the petitioner. This has been strongly contested by
learned counsel for ZF.E, both on the basis of its stand on merits that the DAS agreement was effective for die entire period from January tili
December 2016 and also on die technical ground that petitioner has not made any prayer for a money decree for any amount much less for the
amount now being claimed through a self-serving statement of accounts brought on record at the time of heating through affidavit of 05.02.2021.
24. it is not necessary to go into the above controversy cm account of petitioner's stand tiuit it has paid nn excess amount during the year 2016. The
case of excess payment could have deserved consideration had petitioner’s ease been found to have merit. Bui the findings recorded on merits
are against the ease of the petitioner. I’he date for implementation of DAS Phase-TIl was never extended beyond 31.12.2015 either by the
competent statutory authority or by any judgment or order of a competent court of law. Interim orders merge into final orders and lose their
significance thereafter. In the presem matter, petitioner has not produced any final judgment or order in support of its case and the interim orders also
do not lead to a conclusion which may help the case of the petitioner. A solemn agreement or MOU between the parties referring to a dale lixed by
the statutory authority cannot be ignored by one party when the statutory authority has not Issued further notification which could affect the
implementation of the MOT.* from January 2016 onwards. The objection to the invoices raised by respondents on the basis of DAS Agreement was
also belated. The dispute was raised after the invoices were raised by the respondents for 4-5 months. 1’hcrc is no explanation why the
subsequent DAS agreement was for a term beginning from 01.01.201? when petitioner has taken a stand that the date for implementation of DAS
Phase- III got extended to 31.0122017.
25. Iri rheaforesaid facts raid circumstances, this tribunal finds no me. its in this petition and the same is accordingly dismissed. The parties shall
adjust their accounts according and act in accordance with law and the stipulations as agreed in tire admitted DAS agreements for tl.e period
beginning from 01 .U1.2017.