High Court
Case Details
WP(C) 5053/2012 BEFORE THE HON’BLE MR JUSTICE B. K. SHARMA Heard Mr. S. S. Dey, along with Mr. S. K. Roy, learned counsel for the p etitioner. Also heard Mr. B. J. Ghosh, learned State Counsel as well as Mr. B. C . Das, learned Senior counsel assisted by Mr. R. De, learned counsel representin g respondent No. 7 and Ms. D. Sinha, learned counsel appearing on behalf of the Union of India. This writ petition is directed against the Annexure-II order dated 12.10 .2012 passed by the Additional District Magistrate (Admn.), Dibrugarh, alleging violation of the provision of Section 4 A.1 and Section 4 A.2 of the Telecommuni cation (Broadcasting and Cable Services) Interconnection (Fifth Amendment) Regul ations, 2009. By the said order, a direction has been issued to all Circle Offic ers of Dibrugarh to take immediate action towards stopping the alleged illegal b roadcast of signals of channels by the petitioner in Dibrugarh district immediat ely and also all other cable operators/distributors of television channels opera ting under their network in Dibrugarh district. By the said impugned order the petitioner has also been asked to show-ca use as to why action for seizure of equipments should not be taken under Section 11 of the Cable TV network (Regulation) Act 1995.
Decision
While entertaining the writ petition, by order dated 16.10.2012, an inte rim order was passed restraining the district authorities from seizure of the br oadcasting equipments of the petitioner. Simultaneously the petitioner was also restrained from expanding their customer base providing that service would be pr ovided only to those customers, who were serviced by the petitioner as on 12.10. 2012. Mr. Dey, learned counsel for the petitioner referring to the provisions of the Cable Television Networks (Regulations) Act, 1995; the Telecom Regulatory Authority of India Act, 1997 and the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 (as amended up to 2009) submits that the Additional District Magistrate, Dibrugarh is not the competent authority in the matter and, hence, could not have passed the impugned order without jurisdi ctions. As regards the merit of the petition, he submits that the petitioner hav ing had all the requisite documents in his possession and also having produced t he same before the authority, which has passed the impugned order, the said auth ority irrespective of his lack of jurisdiction could not have passed the impugne d order. Mr. Das, learned senior counsel appearing for the respondent No. 7, on t he other hand submits that the Additional District Magistrate being the authoriz ed officer, within the meaning of Section 2 (d) of the aforesaid regulations of 2004 (as amended in 2009), can take action in the matter and thus the argument t hat the said authority is not the authorized officer is totally misplaced. Mr. B. J. Ghosh, learned State Counsel has produced the written instruct ions received by him vide letter dated 03.01.2013, addressed to him by the Deput y Commissioner, Dibrugarh. According to him, the Additional District Magistrate, Dibrugarh is the competent authority and upon failing to produce the relevant d ocuments, the said authority has rightly passed the impugned order which does no t call for any interference of this Court. I have considered the submissions made by the learned counsel for the pa rties and also perused the entire materials on record. Admittedly before passing the impugned order dated 12.10.2012 stopping the broadcast and signal of channe ls by the petitioner and other operators/ distributors operating under their net work in Dibrugarh district, the petitioner was not put to any kind of notice. Ho wever, the learned counsel for the respondents in reference to the Annexure-I le tter dated 18.10.2012, submits that notice was given to the petitioner and its r epresentative was aware as to what was the requirement in the matter. For a read y reference the Annexure-I letter dated 18.10.2012 is quoted below: (cid:28)GOVERNMENT OF ASSAM OFFICE OF THE DEPUTY COMMISSIONER? DIBRUGARH DISTRICT (PUBLIC GRIEVANCES CELL) No. DDO 102/2009 Dtd Dibrugarh the 8/10/2012 To, 1. A.R. Complex, Near Bata, 2nd Floor, Dibrugarh, The Manthan Broadband Services, New Market 2. The Unition Channel, New Market, A. R. Complex, Near Bata, 2nd Floor, Dibrugarh. Sub: Alleged Unauthorized Distribution of cable TV Signals by Manthan Broadband Services/Union Channel. Ref: Petition from all Dibrugarh Cable TV Operators Association. With reference to the subject cited above you are requested to attend this offic e for hearing with your relevant documents related to the distribution of Cable TV Services in Dibrugarh on 09/10/2012 at 11 a.m. in the office chamber of the u ndersigned in the office of the Deputy Commissioner, Dibrugarh. S/d illegible Addl. Deputy Commissioner Dibrugarh (cid:29) The above quoted letter dated 18.10.2012 is not in the form of any show- cause notice and/or apprising the petitioner about the grounds assigned in the i mpugned order dated 12.10.2012 requiring him to submit his reply. The petitioner was simply directed to produce the relevant documents relating to the distribut ion of Cable TV service in Dibrugarh. In this connection, Mr. Dey has referred t o the documents annexed to the writ petition to submit that the petitioner has a ll the required documents in his possession and, in fact, documents had also bee n produced before the Additional District Magistrate, but the said authority did not consider the same. From the above narration of fact it is seen that the Additional District Magistrate did not issue any notice and/or apprised the petitioner about the pu rported illegality committed by it requiring him to meet those illegalities. It was also simply directed to produce the relevant documents, without indicating a s to what documents were required to be produced. In the impugned order, the authority has alleged violation of Section 4 A.1 and Section 4 A.2 of the aforesaid Regulation of 2009 and also Section 3 of the particular Act (without any specification). However, Mr. Das, learned Senior counsel appearing for the respondent No. 7 submits that Section 3 indicated in the impugned order relates to the Act of 1995. In the impugned order the authori ty has referred to Section 11 of the Act of 1995 empowering the authority to sei ze the equipment used for operating cable television network. However, the said provision can be applied only in respect of violation of provision of Section 3, Section 4 A, Section 5, Section 6, Section 8, Section 9 or Section 10 of the Ac t. Admittedly, the impugned order passed under Section 11 of the Act of 199 5 is without any reference to the said provision and/or the decision on that gro und. Mr. Dey learned counsel for the petitioner submits that jurisdiction exerci sed under Section 11 of the Act of 1995 is without any application of mind and a uthority. Considering the fact that the petitioner was not provided with the requi red opportunity before passing the impugned order dated 12.10.2012 and as agreed to, I am inclined to dispose of the writ petition granting opportunity to the p etitioner to meet the grounds assigned in the impugned order dated 12.10.2012, t reating the same to be a show-cause notice. Needless to say that in his reply, i t will be open for the petitioner to raise the question of jurisdiction of the A dditional District Magistrate (Admn.) Dibrugarh, to pass the said order dated 12 .10.2012 and/or to deal with the matter. The petitioner shall furnish the reply to the impugned order dated 12.10 .2012, within 25th of January, 2013, and on receipt of the said reply the said a uthority shall dispose of the matter by a speaking order also dealing with the q uestion of jurisdiction raised by the petitioner in the writ petition and also t he contentions that might be raised in its reply. The matter is disposed of in the above manner. Till the speaking order i n terms of this order is passed, the position relating to services of the petiti oner and its Cable Operators/Distributors as was existing/obtaining before the i ssuance of the impugned order dated 12.10.2012, shall be maintained. With the above direction, the writ petition is disposed of.