RACHANA TELEVISION PRIVATE LIMITED vs UNION OF INDIA & ORS.

2024-06-28 Information

$~10 to 14, 35 to 39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 28th June, 2024
+ W.P.(C) 8728/2024, CM APPLs. 35616/2024 & 35617/2024
RACHANA TELEVISION PRIVATE LIMITED ….. Petitioner
Through: Mr. Abhinav Mukherji, Senior
Advocate with Ms. Payal, Mr.
Ehraz Zafar, Mr. Akash Tyagi, Mr.
Prana, Mr. Suraj Kumar, Mr. Shivam
and Ms. Tanya Gupta, Advocates.
(M): 9811670983
Email: payalk@kntlawofficer.com

versus

UNION OF INDIA & ORS. ….. Respondents
Through: Mr. Rakesh Kumar, CGSC with Mr.
Vedansh Anand, GP for respondent
no. 1/UOI.
(M): 8700015764
9811549455
Email: advrathoremahesh@gmail.com
rakeshkumarcgsc@gmail.com
Mr. K.L.N.V.Veeranjaneyulu,
Advocate for respondent no. 2.

11
+ W.P.(C) 8729/2024, CM APPLs. 35618/2024 & 35619/2024
RACHANA TELEVISION PRIVATE LIMITED ….. Petitioner
Through: Mr. Abhinav Mukherji, Senior
Advocate with Ms. Payal Kakra, Mr.
Ehraz Zafar, Mr. Akash Tyagi, Mr.
Prana, Mr. Suraj Kumar, Mr. Shivam
and Ms. Tanya Gupta, Advocates.
(M): 9811670983
Email: payalk@kntlawofficer.com

versus

12
+ W.P.(C) 8731/2024, CM APPLs. 35622/2024 & 35623/2024
RACHANA TELEVISION PRIVATE LIMITED ….. Petitioner
Through: Mr. Abhinav Mukherji, Senior
Advocate with Ms. Payal Kakra, Mr.
Ehraz Zafar, Mr. Akash Tyagi, Mr.
Prana, Mr. Suraj Kumar, Mr. Shivam
and Ms. Tanya Gupta, Advocates.
(M): 9811670983
Email: payalk@kntlawofficer.com

versus

13
+ W.P.(C) 8732/2024, CM APPLs. 35624/2024 & 35625/2024
RACHANA TELEVISION PRIVATE LIMITED ….. Petitioner
Through: Mr. Abhinav Mukherji, Senior
Advocate with Ms. Payal Kakra, Mr.
Ehraz Zafar, Mr. Akash Tyagi, Mr.
Prana, Mr. Suraj Kumar, Mr. Shivam
and Ms. Tanya Gupta, Advocates.
(M): 9811670983
Email: payalk@kntlawofficer.com

versus

14
+ W.P.(C) 8734/2024, CM APPLs. 35628/2024 & 35629/2024
RACHANA TELEVISION PRIVATE LIMITED ….. Petitioner
Through: Mr. Abhinav Mukherji, Senior
Advocate with Ms. Payal Kakra, Mr.
Ehraz Zafar, Mr. Akash Tyagi, Mr.
Prana, Mr. Suraj Kumar, Mr. Shivam
and Ms. Tanya Gupta, Advocates.
(M): 9811670983
Email: payalk@kntlawofficer.com

versus

35
+ W.P.(C) 8753/2024, CM APPLs. 35675/2024 & 35676/2024
RACHANA TELEVISION PRIVATE LIMITED ….. Petitioner
Through: Mr. Abhinav Mukherji, Senior
Advocate with Ms. Payal Kakra, Mr.
Ehraz Zafar, Mr. Akash Tyagi, Mr.
Prana, Mr. Suraj Kumar, Mr. Shivam
and Ms. Tanya Gupta, Advocates.
(M): 9811670983
Email: payalk@kntlawofficer.com

versus

36
+ W.P.(C) 8754/2024, CM APPLs. 35677/2024 & 35678/2024
RACHANA TELEVISION PRIVATE LIMITED ….. Petitioner
Through: Mr. Abhinav Mukherji, Senior
Advocate with Ms. Payal Kakra, Mr.
Ehraz Zafar, Mr. Akash Tyagi, Mr.
Prana, Mr. Suraj Kumar, Mr. Shivam
and Ms. Tanya Gupta, Advocates.
(M): 9811670983
Email: payalk@kntlawofficer.com

versus

37
+ W.P.(C) 8755/2024, CM APPLs. 35679/2024 & 35680/2024
RACHANA TELEVISION PRIVATE LIMITED ….. Petitioner
Through: Mr. Abhinav Mukherji, Senior
Advocate with Ms. Payal Kakra, Mr.
Ehraz Zafar, Mr. Akash Tyagi, Mr.
Prana, Mr. Suraj Kumar, Mr. Shivam
and Ms. Tanya Gupta, Advocates.
(M): 9811670983
Email: payalk@kntlawofficer.com

versus

38
+ W.P.(C) 8756/2024, CM APPLs. 35681/2024 & 35682/2024
RACHANA TELEVISION PRIVATE LIMITED ….. Petitioner
Through: Mr. Abhinav Mukherji, Senior
Advocate with Ms. Payal Kakra, Mr.
Ehraz Zafar, Mr. Akash Tyagi, Mr.
Prana, Mr. Suraj Kumar, Mr. Shivam
and Ms. Tanya Gupta, Advocates.
(M): 9811670983
Email: payalk@kntlawofficer.com

versus

39
+ W.P.(C) 8757/2024, CM APPLs. 35683/2024 & 35684/2024
RACHANA TELEVISION PRIVATE LIMITED ….. Petitioner
Through: Mr. Abhinav Mukherji, Senior
Advocate with Ms. Payal Kakra, Mr.
Ehraz Zafar, Mr. Akash Tyagi, Mr.
Prana, Mr. Suraj Kumar, Mr. Shivam
and Ms. Tanya Gupta, Advocates.
(M): 9811670983
Email: payalk@kntlawofficer.com

versus

CORAM:
HON’BLE MS. JUSTICE MINI PUSHKARNA

MINI PUSHKARNA, J (ORAL)
1. The present petitions have been filed seeking ad-interim ex-parte order directing the respondent no.2, i.e., ACN Cable Private Limited, to forthwith restore the signal of petitioners channel to its subscribers, in terms of the agreement, as transmitted prior to 21st June, 2024, on the same LCN. There is further prayer seeking declaration that the disconnection/switching off of the petitioners channel by the respondent no.2, is in willful breach of Telecom Regulatory Authority of Indias (TRAIs) Interconnection Regulations, 2017, Quality of Service Regulations, 2017, and in contravention to the Binding Agreement dated 22nd September, 2023, and is illegal and bad in law.
2. It is submitted that the petitioner is a broadcaster of its channels and respondent no.2 is a multi system operator, i.e., a service provider under the TRAI Act, 1997. It is submitted that despite subsistence of valid agreement in all the cases, except in W.P.(C) 8731/2024, W.P.(C) 8753/2024, W.P.(C) 8755/2024 and W.P.(C) 8756/2024, the respondent no.2 has disconnected/switched off the petitioners channel, i.e., NTV Telugu without any cause of action, and without issuance of mandatory disconnection notice, as duly mandated by Clause 17 of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 (TRAI Interconnection Regulations, 2017) and Clause 6(b) of duly executed Agreement between the parties.
3. Learned Senior Counsel appearing for the petitioner submits that the disconnection by respondent no.2 violates Clause 17 of the TRAI Interconnection Regulations, pertaining to mandatory 21 days prior notice, regarding disconnection of the channels. It is further submitted that in terms of the Channel Placement Agreement between the parties, Agreement could be terminated only by serving 30 days notice in writing. However, respondent no.2 has not issued any disconnection notice at all, making the actions of respondent no.2, per se, as illegal and bad in law.
4. It is submitted that the action of respondent no.2, has caused significant reputational and financial loss to the petitioner, and deprived the subscribers of access to NTV Telugu channel. Thus, the petitioner seeks immediate restoration of channel on the network owned and operated by respondent no.2, on the same status and position, as before the illegal switching off of the channel, prior to 21st June, 2024.
5. Learned Senior Counsel appearing for the petitioner submits that since the Telecom Disputes Settlement & Appellate Tribunal (TDSAT) is not functioning in the vacations, and there is no Vacation Bench in the said Tribunal to hear and decide the subject matter, the petitioner has approached this Court by way of the present petitions. It is also submitted that this Court has already passed order in favour of another TV channel, faced with similar situation, vide order dated 24th June, 2024, in W.P.(C) 8688/2024 and other connected matters.
6. Attention of this Court has been drawn to the Channel Placement Agreement dated 22nd September, 2023, and in particular to Clause 1, which reads as under:
1. In consideration of the Channel Provider, paying the Consideration as further defined in Clause 4 herein below, the MSO hereby undertakes to position the Channels for the Digital head-end distribution area, more particularly as set out in Schedule A (the Territory) and in accordance with the terms of this Agreement (as more fully set out herein; in the Services).

a. The MSO shall position the Channels as required by the Channel Provider at an LCN Number more particularly as set out in Schedule B.

b. The MSO hereby undertakes not to alter or downgrade the Channels LCN position as regards the Committed LCN number, except as provided under this Agreement. If at any time any alteration in the Committed LCN Number is deemed unavoidable due to any order or direction of any competent authority or a court of law or tribunal or due to mandate of any law, notification or DAS and TRAI regulations, the MSO shall place the Channel on any other mutually acceptable LCN number which is not less favourable than the Committeed Number, and such modified number shall also be referred to herein as the Committeed LCN-Number.

c. The MSO shall place the Channel as broadcast by the Channel Provider without any editing, delays, interruptions, additions, cuts, deletions, superimpositions, or modifications of any nature whatsoever. Provided that in the event the Channel is suspended or withdrawn for whatever reasons other than Force Majeure events as described in Clause 9 hereunder, for a continuous period of more than twenty four (24) hours, the MSO may, at its option, place any other signals of its choice on the Committed Number for a temporary period, but the MSO shall immediately upon the Channel being restored, restore the signals of the Channels on the Committed Number and resume performance of its obligations hereunder as if, there was no interruption. No consideration shall be levied/paid during such non-transmission period.

d. The MSO shall under no circumstances shift the location of the decoder and viewing card to any location other than the one in which such equipment was installed by Channel Provider without prior written intimation to the Channel Provider’s distributor with details of the proposed location.

e. The Channel Provider shall ensure that the quality of the Signals of the Channel delivered shall confirm to the prevailing broadcasting norms and standards. Similarly, the MSO shall also ensure that the quality of the signals of the Channel shall confirm to the prevailing industry norms and standards.

f. The MSO and Channel Provider shall comply with all laws and regulations applicable to its provision of the Services, und specifically with The Cable Television Network (Regulation) Act, 1995 (ACT), provisions of the Digital Addressable System (DAS) Regulations and other TRAI guidelines/regulations wherever applicable.

7. By referring to the aforesaid clauses, it is submitted that by way of the aforesaid Agreement, the respondent no.2, in its capacity as an operator, has undertaken not to alter or downgrade the channels position, except as provided under the Agreement.
8. Learned Senior Counsel also relies upon Clause 6 of the said Agreement, and submits that the Agreement has commenced from 01st September, 2023, and shall expire 12 months thereafter, i.e., on 31st August, 2024. He further submits that Clause 6 categorically records that the Agreement shall be terminated only by giving a written notice of 30 days, which has not been done in the present case. Clause 6 of the Channel Placement Agreement dated 22nd September, 2023, reads as under:
6. TERM AND TERMINATION:
a. This Agreement shall come into force on 01st September 2023 and shall expire twelve (12) Months thereafter, i.e., 31st August 2024 (the Term).

b. This Agreement shall be terminated on the occurrence of any of the following events:

i. In the event the Parties cannot agree upon a revision to the Consideration under clause 4(f) hereinabove.
ii. Default in any payment due and payable by the Channel Provider to the DAS licenses MSO for a period in excess of thirty (30) days from the date on which it became due and payable by providing 21 days notice to the Channel Provider
iii. By either Party, in the event of Force Majeure conditions prevail for a continuous period exceeding sixty (60) days, preventing the MSO from providing the Services or the Channel Provider from broadcasting the Channel.
iv. By the Channel Provider with immediate effect, in the event the MSO defaults in the provision of the Services or any other provision of this Agreement and fails to cure such default within Sixty (60) days of receipt of written notice thereof to the MSO;
v. By either Party by provision to the other Party of thirty (30) days written notice if the other Party becomes or is declared bankrupt or goes into voluntary or compulsory liquidation except for the purpose of amalgamation or reconstruction.
vi. By either Party on the provision to the other Party of Thirty (30) days notice in writing.

9. Learned Senior Counsel has also handed over the channel placement, in all the cases, which are as under:

SR. No.
MATTER NAME
NETWORK NAME
AGREEMENT DURATION
DISCONNECTION DATE
LCN NO
WP NO.
1
Rachana Television Private Limited Vs Union of India and Ors.
ACT DIGITAL HOME ENTERTAINMENT PVT LTD
01.09.2023-31.08.2024
21.06.2024
40
8732/2024
2
Rachana Television Private Limited Vs Union of India and Ors.
ACN CABLE PVT LTD (NELLORE)
01.09.2023-31.08.2024
21.06.2024
68
8728/2024
3
Rachana Television Private Limited Vs Union of India and Ors.
ACN CABLE PVT LTD (TIRUPATHI)
01.09.2023-31.08.2024
21.06.2024
68
8734/2024
4
Rachana Television Private Limited Vs Union of India and Ors.
NXT DIGITAL COMMUNICATION PVT LTD
01.04.2024-31.03.2025
21.06.2024
29
8729/2024
5
Rachana Television Private Limited Vs Union of India and Ors.
VINSAT DIGITAL PVT LTD
AGREEMENT/ UNDERSTANDING TILL 31.01.2025
16.06.2024
52
8731/2024
6
Rachana Television Private Limited Vs Union of India and Ors.
HATHWAY DIGITAL PRIVATE LIMITED
01.04.2024-31.03.2025
06.06.2024
54
8754/2024
7
Rachana Television Private Limited Vs Union of India and Ors.
GTPL HATHWAY LTD
01.09.2023-31.08.2024
21.06.2024
60
8757/2024
8
Rachana Television Private Limited Vs Union of India and Ors.
BHIMAVARAM COMMUNITY NETWORK
ONGOING AGREEMENT/ UNDERSTANDING
21.06.2024
89
8753/2024
9
Rachana Television Private Limited Vs Union of India and Ors.
MACHILIPATNAM COMMUNICATION PVT LTD
AGREEMENT/ UNDERSTANDING TILL DECEMBER 2024
21.06.2024
50
8755/2024
10
Rachana Television Private Limited Vs Union of India and Ors.
ANDHRA PRADESH STATE FIBER NET LTD
ONGOING AGREEMENT/ UNDERSTANDING SINCE YEAR 2016
12.06.2024
53
8756/2024

10. It is submitted that as regards W.P.(C) 8731/2024, W.P.(C) 8753/2024, W.P.(C) 8755/2024 and W.P.(C) 8756/2024, though there is no formal agreement, regular payments are being made, and the channel is entitled to protection as per the TRAI Interconnection Regulations, 2017.
11. Attention of this Court has also been drawn to the TRAI Interconnection Regulations, 2017 in particular to Clause 17, which reads as under:
xxx xxx xxx

17. Disconnection of signals of television channels – No service provider shall disconnect the signals of television channels without giving at least three weeks notice in writing to other service provider, clearly specifying the reasons for the proposed disconnection:

Provided that the period of three weeks notice shall start from the date of receiving the notice by the other service provider:

Provided further that the distributor of television channels shall, fifteen days prior to the date of disconnection, inform the subscriber, through scrolls on the channels proposed to be disconnected, the date of disconnection of signals of such television channels:

Provided also that no service provider shall display notice for disconnection of signals of television channels in form of static images overlaid on the television screen, obstructing normal viewing of the subscribers.

xxx xxx xxx

12. By referring to the aforesaid Regulation, it is submitted that it has categorically been stipulated, that no service provider shall disconnect the signals of the television channels without giving at least three weeks notice, in writing.
13. Learned Senior Counsel also refers to Clause 18 (4) of the said Regulations, which reads as under:
xxx xxx xxx
18.

(4) The channel number once assigned to a particular television channel shall not be altered by the distributor for a period of at least one year from the date of such assignment:

Provided that this sub-regulation shall not apply in case the channel becomes unavailable on the distribution network:

Provided further that if a broadcaster changes the genre of a channel then the channel number assigned to that particular television channel shall be changed to place such channel together with the channels of new genre in the electronic program guide.

xxx xxx xxx

14. By referring to the aforesaid Regulation 18 (4), it is submitted that once a channel number has been assigned to a particular television channel, it shall not be altered by the distributor for a period of at least one year.
15. Learned Senior Counsel submits that despite a subsisting Agreement, the transmission of the petitioners channel has been disrupted. Attention of this Court has been drawn to Annexure P-5 (colly), which are the various complaints received from the consumers.
16. Per contra, learned counsel appearing for respondent no.1-Union of India submits that the present petition would not be maintainable before this Court, as TDSAT is the authority where the petitioner ought to have filed the appeals. He further submits that respondent no.1 has been made a party, solely for the purpose of bringing the present petitions within the jurisdiction of this Court. It is further submitted that the present petitions involve private commercial disputes between the petitioner and respondent no.1, wherein, one party is in Andhra Pradesh and the other is in Telangana.
17. Learned counsels appearing for respondent no.2, in respective matters, submit that the petitioner ought to have approached the TDSAT. In the absence of the TDSAT, it is the Andhra Pradesh and Telangana High Courts, which have the jurisdiction to hear the present matters.
18. They submit that the transmission of the channel, i.e., NTV Telugu is undisruptive and is currently in place, in Telangana and Andhra Pradesh, wherever, there are agreements between the petitioner and respondent no.2. They further submit that the agreement between the petitioner and respondent no.2, is only in the State of Telangana, and not Andhra Pradesh. Thus, in the case of Andhra Pradesh, wherever any customer has subscribed the NTV Telugu channel, the said channel is supplied to such customer.
19. The aforesaid fact is disputed by learned Senior Counsel appearing for the petitioner. He has handed over certain documents to show that channel of the petitioner, i.e., NTV Telugu is Free to Air channel, and is part of the package. The said documents are taken on record.
20. Considering the submissions made by learned counsels for the parties, this Court at the outset, records the submission made by learned counsels appearing for respondent no. 2 that the transmission of the channel of the petitioner, i.e., NTV Telugu is uninterrupted and unhindered, and is being relayed in the state of Telangana. As regards the State of Andhra Pradesh, where there is no subsisting agreement between the parties, it is undisputed that the petitioner has been paying regularly to respondent no.2.
21. Thus, this Court notes that the TRAI Interconnection Regulations, 2017, stipulate issuance of mandatory statutory notice of three weeks in writing, before disconnecting signals of television channels. Hence, without giving a prior notice of three weeks to the petitioner in terms of Clause 17 of TRAI Interconnection Regulations, 2017, the respondent no.2 could not have disconnected the signals of the petitioners channel. Since, it has come on record that the respondent no.2 has failed to give any such notice to the petitioner herein, the disconnection/switching off of the signals of the petitioners channel, without any prior notice, is ex-facie bad in law, in both the cases, i.e., where there are agreements between the parties, and in cases, where there are no agreements, but requisite amounts are being regularly paid to respondent no.2.
22. It is to be noted that this Court by its decision dated 24th June, 2024, passed in W.P.(C) 8688/2024, and other connected matters, has dealt with similar situation with respect to some other channel.
23. This Court also notes that the petitioner has already filed appeals before TDSAT and has approached this Court only in the interregnum, since there is no Vacation Bench in the TDSAT.
24. Accordingly, it is directed that the transmission of the television channel, i.e., NTV Telugu, shall continue uninterruptedly and unhindered on the same position, as existing prior to 21st June, 2024. With regard to further grievances of the petitioner, it is noted that the petitioner has already filed the appeals before TDSAT.
25. Accordingly, no further orders are required to be passed in the present petitions.
26. The present petitions are accordingly disposed of, in the aforesaid terms, along with the pending applications.

MINI PUSHKARNA, J
(VACATION JUDGE)

JUNE 28, 2024/au

W.P.(C) 8728/2024 & other connected matters Page 1 of 17