G. Rohini, C.J.
C.M. No.8130/2015 (stay)
1. This application is filed by the writ petitioner with a prayer to stay the operation of (i) the Telecommunication (Broadcasting and Cable Services) Interconnection (Eighth Amendment) Regulation, 2014 dated 18.07.2014 amending the Telecommunication (Broadcasting and Cable Services) Interconnection Regulation, 2004 and (ii) the Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) (Fourth Amendment) Regulation, 2014 dated 18.07.2014 amending the Telecommunication (Broadcasting and Cable Services) Interconnection (DAS) Regulation, 2012.
2. The main writ petition is filed challenging the above said Amendment Regulations dated 18.07.2014 as well as the two Tariff Orders, namely, the Telecommunication (Broadcasting and Cable) Services (Second) Tariff (Twelfth Amendment) Order, 2014 dated 16.07.2014 and the Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff (Fourth Amendment) Order, 2014 dated 18.07.2014.
3. The Tariff Orders mentioned above were also challenged by the Indian Broadcasting Foundation, an Association of Television Broadcasters and two other individual Broadcasters before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) in Appeal No. 7(C) of 2014. The said appeal was allowed by the TDSAT by judgment dated 09.03.2015 thereby setting aside the impugned Tariff Orders and directing the Telecom Regulatory Authority of India (TRAI) to undertake a fresh detail exercise in terms of its judgment and come out with new Tariff Order within 6 months.
4. Against the said judgment of the TDSAT the respondent No. 2 herein/Federation of Hotel and Restaurants Association of India filed Civil Appeal No. 3728/2015. We are informed that the said appeal is pending and by order dated 24.04.2015 the Supreme Court directed that the orders passed in the meantime shall be subject to final outcome of the appeal.
5. It may be mentioned that the main writ petition was filed in the month of August 2014. It was primarily contended by the petitioner, a Broadcaster, that the impugned amendments to the Tariff Orders and Regulations were made by the TRAI without application of mind and without considering any empirical data. It was also specifically pleaded that by virtue of the impugned amendments inserting the definition of the term "commercial establishment" apart from substituting the definition of "commercial subscriber" and "subscriber", the freedom of the petitioner to provide its signals directly to commercial subscribers was taken away. It was further contended that the TRAI has no power to regulate the content/programme which is the subject matter of a totally different Act, i.e., the Copyright Act, 1957. Pleading that the petitioner has already entered into a large number of agreements with the commercial subscribers and that the existing agreements cannot be enforced unless the operation of the impugned Tariff Orders and Regulations are stayed, the petitioner along with the writ petition filed C.M. No.10283/2014 seeking stay of operation of the impugned Tariff Orders and the Regulations till the disposal of the writ petition.
6. Though no interim stay was granted, this Court by order dated 19.08.2014 directed that the charges collected by the petitioner in terms of the impugned Tariff Orders and Regulations shall be subject to the outcome of the writ petition and the commercial establishments shall be bound to pay the difference in the event of the petitioner succeeding in the writ petition. By that time, the Indian Broadcasting Foundation had already filed Appeal No. 7(C) of 2014 before the TDSAT against the impugned Tariff Orders and the same was pending. The respondents No. 1 and 2 filed counter affidavits opposing the writ petition contending inter alia that the impugned amendments to the Regulations were made solely because of the amendments to the Tariff Orders and that the petitioner cannot approach this Court since the amended Regulations were ancillary to and a result of the amendments to the Tariff Orders. It was also contended that since the petitioner had availed the alternative remedy of appeal before the TDSAT against the impugned amendments to the Tariff Orders, if the petitioner succeeds before the TDSAT, the TRAI would have to necessarily amend the corresponding Regulations.
7. Having regard to the stand taken by the respondents, the writ petition was adjourned from time to time awaiting the outcome of the appeal before TDSAT. As mentioned above, the appeal before the TDSAT was allowed by judgment dated 09.03.2015 setting aside the impugned Tariff Orders and directing TRAI to undertake a fresh exercise and come out with new Tariff Order.
8. In the light of the findings recorded by TDSAT while allowing the Appeal No. 7(C) of 2014 preferred against the impugned Tariff Orders, it is submitted by the petitioner that the impugned Regulations are also liable to be set aside and, therefore, the writ petition may be allowed as prayed for. The respondents opposed the same contending that the validity of the Regulations was not the subject matter of the appeal before the TDSAT and the same requires to be decided only by this Court under Article 226 of the Constitution of India.
9. Under the circumstances, the present application came to be filed by the writ petitioner pleading that unless the impugned Regulations are stayed, a fresh exercise cannot be taken up by the TRAI in terms of the directions of the TDSAT in Appeal No. 7(C) of 2014. Referring to the stand taken by the respondent No. 1 (TRAI) as well as respondent No. 2 in their respective counter affidavits in the writ petition that the impugned Regulations directly flow from the amendments carried out in the Tariff Orders to ensure consistency between the two, it is contended by the petitioner that if the impugned amendments to the Regulations continue to exist there cannot be an effective and meaningful consideration of issues by the TRAI for issuing the fresh Tariff Orders in terms of the directions of the TDSAT.
10. Dr.Abhishek Manu Singhvi, the learned senior counsel appearing for the petitioner, while drawing our attention to the direction of the TDSAT that the TRAI should take a decision in regard to any interim arrangement within one month from the date of the judgment, i.e., 09.03.2015, submitted that the TRAI moved an application being M.A. No.128/2015 before the TDSAT seeking extension of time for taking a decision in regard to any interim arrangement and that by order dated 23.04.2015, the TDSAT granted the extension till 08.05.2015 and therefore, the interim Tariff is likely to be fixed by the TRAI before 08.05.2015. Accordingly, the learned senior counsel submitted that it is imperative to stay the operation of the impugned Regulations or to keep the same in abeyance till the disposal of the writ petition.
11. Though the TRAI has not filed a counter, Sh. Amit Kapoor, the learned counsel appearing for respondent No. 1/TRAI submitted on instructions that in terms of the directions of the TDSAT, the question whether there is a need to issue an interim order pending the final comprehensive Tariff Order has been considered by TRAI and that it has now been decided by the TRAI not to issue the interim tariff and to proceed with the comprehensive determination of tariff subject to outcome of the appeal pending before the Supreme Court.
12. However, the learned counsel has not disputed that the TRAI would be bound by the impugned Regulations in determination of the fresh tariff pursuant to the order of the TDSAT.
13. Sh.Ramji Srinivasan, the learned senior counsel appearing for the respondent No. 2 made his submissions on the same lines and further contended that in view of the decision now taken by the TRAI not to issue the interim tariff and that it shall await the outcome of the appeal pending before the Supreme Court, the interim stay as sought by the petitioner is not warranted at this stage.
14. Rebutting the said arguments, Dr. Abhishek Manu Singhvi, the learned senior counsel appearing for the petitioner contended that the decision of the TRAI not to issue any interim tariff and to proceed with the comprehensive determination of tariff within six months of the order dated 09.03.2015 of the TDSAT is contrary to the said order of the TDSAT. It is also contended that the TRAI nevertheless cannot determine the tariff in contravention of the impugned Regulations if the same are allowed to stand. The learned senior counsel therefore submits that it is essential to stay the operation of the impugned regulations.
15. We have given our thoughtful consideration to the submissions made by both the parties.
16. As could be seen, the TDSAT had categorically held that the reasons assailed by TRAI for putting the entire body of commercial subscribers at par with the ordinary subscribers are completely unacceptable and thus directed that TRAI should consider afresh the question whether the commercial subscribers should be treated equally as home viewers for the purpose of broadcasting service tariff or there needs to be a different and separate tariff system for commercial subscribers.
17. The directions of TDSAT may be reproduced hereunder for ready reference:
"TRAI must now undertake a fresh exercise on a completely clean slate. It must put aside the earlier debates on the basis of which it has been making amendments in the three principal tariff orders none of which has so far passed judicial scrutiny. It must consider afresh the question whether commercial subscribers should be treated equally as home viewers for the purpose of broadcasting services tariff or there needs to be a different and separate tariff system for commercial subscribers or some parts of that larger body. It is hoped and expected that TRAI will issue fresh tariff orders within six months from today.
Now that the impugned tariff orders are quashed, the question arises at what rates commercial establishments are to be charged, especially those that were excluded from the tariff protection by the seventh amendment of the Second tariff order until TRAI comes out with the fresh tariff order. The seventh amendment to the Second tariff order and first amendment to the Third (CAS Area) tariff order were quashed by the judgment of the Tribunal dated 28 May 2010 but those were kept alive by the Supreme Court for a period of three months from 16 April 2014, the date of the order by which the Court confirmed the Tribunal''s judgment. That period is long over and, therefore, it would not be proper to revive the tariff amendment orders dated 21 November 2006. As a consequence of the tariff amendment orders dated 21 November being taken out, the un-amended Second, Third and Fourth tariff orders will come into play and commercial subscriber would, by default, get bracketed with ordinary subscriber. In other words though the impugned amendments in the tariff orders are quashed by this judgment, nonetheless, for practical purposes the situation will continue to remain the same. And this is because despite two orders by the Supreme Court to consider the question of tariff in respect of commercial subscribers, within specified times periods, TRAI has not been able to produce the tariff that would satisfy judicial scrutiny. This is evidently a highly anomalous situation and to remedy it TRAI must consider whether to issue an interim tariff order dealing with the matter until it takes a final call on the subject. TRAI should take a decision in regard to any interim arrangement within one month from today."
18. In fact, the TDSAT had also set aside the Fourteenth Amendment Tariff Order dated 06.01.2015 issued by the TRAI during the pendency of the appeal and observed that it is high time that TRAI should stop making any further amendments in the different Tariff Orders and take a completely fresh and holistic view on the question of tariff in broadcasting services.
19. As mentioned above, against the judgment of the TDSAT though the respondent No. 2 herein preferred an appeal before the Supreme Court along with an application seeking stay of the operation of the judgment of the TDSAT, no such stay has been granted till date.
20. Consequently, TRAI is bound to proceed with the determination of fresh tariff in terms of the directions of the TDSAT. The specific case of the petitioner that the TRAI has already undertaken consultative process for determination of fresh tariff has not been disputed by the learned counsel for TRAI. The learned counsel has also not disputed that the TRAI would be bound by the impugned Regulations in determination of fresh tariff pursuant to the order of the TDSAT.
21. Under these circumstances, the question that requires consideration is whether it is necessary to stay the impugned Regulations as prayed by the petitioner. In other words, whether the TRAI can be restrained from following the impugned Regulations while making the fresh tariff in compliance with the directions of the TDSAT.
22. The main petition is filed challenging the validity of the impugned Regulations made by the TRAI in exercise of the statutory power conferred by Section 36 of the TRAI Act, 1997 and as per the settled principles of law, the courts must be extremely reluctant to pass the interim orders when the Constitutional validity of a statute or the rules framed thereunder is challenged. Reiterating the said principle of law in
"13..... At the time of final adjudication, the court can strike down the statute if it is found to be ultra vires the Constitution. Likewise, the rules can be quashed if the same are found to be unconstitutional or ultra vires the provisions of the Act. However, the operation of the statutory provisions cannot be stultified by granting an interim order except when the court is fully convinced that the particular enactment or the rules are ex facie unconstitutional and the factors, like balance of convenience, irreparable injury and public interest are in favour of passing an interim order."
23. Coming to the case on hand, the TDSAT while setting aside the impugned tariff orders directed that the TRAI shall now undertake a fresh exercise on a completely clean state and it must consider afresh the question whether commercial subscribers should be treated equally as home viewers for the purpose of broadcasting services tariff or there needs to be a different and separate tariff system for commercial subscribers or some parts of that larger body. The TDSAT assigned detailed reasons in support of its conclusion that the impugned tariff orders are unsustainable.
24. Having regard to the fact that against the judgment of TDSAT an appeal is provided directly to the Supreme Court, we are of the opinion that due weightage has to be given to the findings of the TDSAT, particularly in view of the fact that the said judgment has not been stayed by the Supreme Court. We find force in the submission of the learned senior counsel for the petitioner that such fresh consideration in terms of the judgment of the TDSAT is not possible if the impugned Regulations are allowed to stand. It also appears to us that to allow TRAI to be guided by the impugned Regulations while making fresh determination of tariff in terms of the order of the TDSAT would not only be a futile exercise but would also give rise to multiplicity of proceedings.
25. Therefore, to meet the ends of justice, we direct that while determining the fresh tariff in terms of the judgment of TDSAT dated 09.03.2015, the TRAI shall not consider itself bound by the Regulations impugned in this petition in any manner whatsoever. However, it is made clear that in the event of the main petition failing, the different tariff, if any, provided in the said Tariff Order for commercial subscribers shall also stand quashed.
26. C.M. No.8130/2015 is accordingly disposed of.
