Madrasdated High Court · 2009

2. Respondent is a Multi System Operator, distributingsatellite television channels in Tamil Nadu through CableOperators by supplying signals to them through the cablesinstalled by him, for which purpose he entered into a FranchiseeAgreement with the Cable Operators.3. Under the Franchisee Agreement, the appellant hadundertaken not to discontinue the facility provided by therespondent and not to take the link and distribute the signalsof any third parties during the currency of the agreement.Since the appellant, according to the respondent, attempted tocommit a breach of the obligations under the FranchiseeAgreement, the suit was filed for the relief stated supra.4. Pending suit, ad interim injunction was granted and,after service of notice in the application for injunction, theappellant filed Application No.1253 of 2008, seeking rejectionof the plaint, which was dismissed by a learned single Judge.Aggrieved over the said order of dismissal, this O.S.A.is filed.5. The one and only contention of the learned counsel forthe appellant is that the suit is hit by Sections 15 and 27 ofthe Telecom Regulatory Authority of India Act,1997 and,therefore, the plaint is liable to be rejected. The learnedcounsel has relied upon the following decisions :(i) Cellular Operators Association of India and Others v.Union of India and Others, 2003 (3) SCC 186 :"8.... It is not necessary for us tonotice all the decisions cited by the learnedAttorney-General in order to arrive at theconclusion as to what is the extent ofjurisdiction of the Appellate Tribunal underSection 14 of the Act. Suffice it to say,Chapter IV containing Section 14 was insertedby an amendment of the year 2002 and the veryStatement of Objects and Reasons wouldindicate that to increase the investors'confidence and to create a level playingfield between the public and the privateoperators, suitable amendment in the TelecomRegulatory Authority of India Act,1997 wasbrought about and under the amendment, atribunal was constituted called the TelecomDisputes Settlement and Appellate Tribunalfor adjudicating the disputes between alicensor and a licensee, between two or moreservice providers, between a service provider https://hcservices.ecourts.gov.in/hcservices/ and a group of consumers and also to hear anddispose of appeal against any direction,decision or order of the Authority. Theaforesaid provision was absolutely essentialas the organizations of the licensor, namely,MTNL and BSNL were also service providers.That being the object for which anindependent tribunal was constituted, thepower of that Tribunal has to be adjudgedfrom the language conferring that power andit would not be appropriate to restrict thesame on the ground that the decision which isthe subject-matter of challenge before theTribunal was that of an expert body. It isno doubt true, to which we will advert later,that the composition of the TelecomRegulatory Authority of India as well as theconstitution of GOT-IT in April 2001 consistsof a large number of eminent impartialexperts and it is on their advice, the PrimeMinister finally took the decision, but thatwould not in any way restrict the power ofthe Appellate Tribunal under Section 14, eventhough in the matter of appreciation theTribunal would give due weight to such expertadvice and recommendations. Having regard tothe very purpose and object for which theAppellate Tribunal was constituted and havingexamined the different provisions containedin Chapter IV, more particularly, theprovision dealing with ousting thejurisdiction of the civil court in relationto any matter which the Appellate Tribunal isempowered by or under the Act, as containedin Section 15, we have no hesitation incoming to the conclusion that the power ofthe Appellate Tribunal is quite wide, as hasbeen indicated in the statute itself and thedecisions of this Court dealing with thepower of a court, exercising appellate poweror original power, will have no applicationfor limiting the jurisdiction of theAppellate Tribunal under the Act. Since theTribunal is the original authority toadjudicate any dispute between a licensor anda licensee or between two or more serviceproviders or between a service provider and agroup of consumers and since the Tribunal hasto hear and dispose of appeals against thedirections, decisions or order of TRAI, it isdifficult for us to import the self-contained https://hcservices.ecourts.gov.in/hcservices/ restrictions and limitations of a court underthe judge-made law to which reference hasalready been made and reliance was placed bythe learned Attorney-General. By saying so,we may not be understood to mean that theAppellate Tribunal while exercising powerunder Section 14 of the Act, will not givedue weight to the recommendations or thedecisions of an expert body like TRAI or inthe case in hand, GOT-IT, which wasspecifically constituted by the PrimeMinister for redressing the grievances of thecellular operators. We would, therefore,answer the question of jurisdiction of theAppellate Tribunal by holding that the saidTribunal has the power to adjudicate anydispute between the persons enumerated inclause (a) of Section 14 and if the disputeis in relation to a decision taken by theGovernment, as in the case in hand, dueweight has to be attached both to therecommendations of TRAI, which consists of anexpert body as well as to the recommendationsof GOT-IT, a committee of eminent expertsfrom different fields of life, which had beenconstituted by the Prime Minister."(ii) Union of India v. Tata Teleservices (Maharashtra)Ltd., 2007 (7) SCC 517 :"Normally, a right to make a claimwould also include a right to make a cross-claim or counterclaim. If a subject-matteris capable of being raised before TDSAT bythe Central Government or the StateGovernment by way of a claim by making anapplication under Section 14 of the Act, itwould not be logical to hold that the sameclaim could not be made by way of acounterclaim when the other side, namely,the licensee or consumers, had alreadyapproached TDSAT with a claim of their ownand the Central Government is called uponto defend it. It is therefore held thatTDSAT has jurisdiction to entertain acounterclaim in the light of Sections 14(1) and 14-A of the Act." (iii) Star India (P) Ltd. (1) v. Sea TV Network Ltd. andAnother, 2006 (4) Supreme Court Cases 130 (1) : https://hcservices.ecourts.gov.in/hcservices/ "2.Without prejudice to the claimsthat are being examined in these appeals,let Star India Pvt.Ltd. provide theconnection to Sea TV Network Ltd. onreceiving payment of Rs.5,00,000 (rupeesfive lakhs only). A bank draft of Rs.5lakhs has been handed over to learnedcounsel for Star India Pvt.Ltd. The signalsshall be given by tomorrow. Further, StarIndia Pvt.Ltd. shall consider the grievanceof the respondent Sea TV Network Ltd. andexplore the possibility of an acceptablearrangement. It shall hear the respectiveviews of Sea TV Network Ltd. and MoonNetwork Pvt.Ltd. and if possible work outthe details as to in which way the claim ofSea TV Network can be worked out keeping inview the objective of the 2004 Regulationsi.e., the non-discriminatory treatment andnon-prejudice in competition. The decisionto be taken by Star India Pvt.Ltd. shall beplaced before us on the next date ofhearing."(iv) Star India (P) Ltd. (2) v. Sea TV Network Ltd. andAnother, 2006 (4) Supreme Court Cases 130 (2) :"1.One of the issues raised bylearned counsel for the appellant is thatcable operators and MSOs do not give acomplete and accurate list of ultimatesubscribers and their area of operation.The respondent Sea TV Network Ltd.submitted that it would be in the interestof all concerned to have the details ofsubscribers of the cable operatorscorrectly identified, provided that suchidentification is done uniformly and in thenon-discriminatory manner. It wassubmitted that in the prevalentcircumstances, the only manner in which thesame can be achieved is through thedeployment of an addressable system whichis commonly known as the conditional accesssystem (in short "CAS"), which wouldidentify the number of subscribersaccessing a particular channel. CASpermits the subscriber to also exercise hischoice to have only those pay channelswhich he chooses to watch. https://hcservices.ecourts.gov.in/hcservices/

2. Keeping in view the nature ofthe controversy and its likely impact onthe broadcasting/TV industry as a whole, weare of the view that it would be necessaryto give adequate opportunity to allstakeholders concerned to file theirsubmissions. For this purpose, anappropriate advertisement shall bepublished by TRAI in two leading newspapersas well as on its own website informing theAssociations of Cable Operators, MSOs andsubscribers of the next date of hearing inthis case, which is fixed to 2-5-2006.4. It is brought to our notice thatTDSAT is also hearing the question as tothe directions which can be given to theAssociation of Cable Operators and MSOs fordisclosing particulars of theirsubscribers. Pendency of these mattersbefore this Court shall not stand in the ayof TDSAT hearing those cases and in fact itwould be of assistance to have the views ofTDSAT before this Court when the mattersare next taken up. Further, pendency ofthese matters shall not stand in the way ofthe Central Government if it so chooses, toimplement CAS or of TRAI in devising anysystem to identify and arrive at thecorrect number of subscribers of eachdistributor of TV channels." 6. Per contra, the contention of the learned counsel forthe respondent is that the appellant is not a "service provider"and hence the suit is very well maintainable. The learnedcounsel has cited the following authorities :(i) Cellular Operators Association of India and Others v.Union of India and Others, 2003 (3) SCC 186 :"8... Having regard to the verypurpose and object for which the AppellateTribunal was constituted and having examinedthe different provisions contained inChapter IV, more particularly, the provisiondealing with ousting the jurisdiction of thecivil court in relation to any matter whichthe Appellate Tribunal is empowered by orunder the Act, as contained in Section 15,we have no hesitation in coming to theconclusion that the power of the Appellate https://hcservices.ecourts.gov.in/hcservices/ Tribunal is quite wide, as has beenindicated in the statute itself and thedecisions of this Court dealing with thepower of a court, exercising appellate poweror original power, will have no applicationfor limiting the jurisdiction of theAppellate Tribunal under the Act. Since theTribunal is the original authority toadjudicate any dispute between a licensorand a licensee or between two or moreservice providers or between a serviceprovider and a group of consumers and sincethe Tribunal has to hear and dispose ofappeals against the directions, decisions ororder of TRAI, it is difficult for us toimport the self-contained restrictions andlimitations of a court under the judge-madelaw to which reference has already been madeand reliance was placed by the learnedAttorney-General. By saying so, we may notbe understood to mean that the AppellateTribunal while exercising power underSection 14 of the Act, will not give dueweight to the recommendations or thedecisions of an expert body like TRAI or inthe case in hand, GOT-IT, which wasspecifically constituted by the PrimeMinister for redressing the grievances ofthe cellular operators. We would,therefore, answer the question ofjurisdiction of the Appellate Tribunal byholding that the said Tribunal has the powerto adjudicate any dispute between thepersons enumerated in clause (a) of Section14 and if the dispute is in relation to adecision taken by the Government, as in thecase in hand, due weight has to be attachedboth to the recommendations of TRAI, whichconsists of an expert body as well as to therecommendations of GOT-IT, a committee ofeminent experts from different fields oflife, which had been constituted by thePrime Minister."(ii) Union of India v. Tata Teleservices (Maharashtra)Ltd., 2007 (7) SCC 517 :"The Telecom Regulatory Authority ofIndia Act,1997 ("the Act") is seen to be aself-contained code intended to deal withall disputes arising out oftelecommunication services provided in this https://hcservices.ecourts.gov.in/hcservices/ country. This is emphasised by the Objectsand Reasons also. A plain reading of therelevant provisions of the Act in the lightof the Preamble to the Act and the Objectsand Reasons for enacting the Act, indicatesthat disputes between the partiesconcerned, which would involve significanttechnical aspects, are to be determined bya specialised tribunal constituted for thatpurpose. Normally, when a specialisedtribunal is constituted for dealing withdisputes coming under it of a particularnature taking in serious technical aspects,the attempt must be to construe thejurisdiction conferred on it in a manner soas not to frustrate the object sought to beachieved by the Act. In this context, theousting of the jurisdiction of the civilcourt contained in Section 15 and Section27 of the Act has also to be kept in mind.The subject to be dealt with under the Acthas considerable technical overtones whichnormally a civil court, at least as of now,is ill equipped to handle and this aspectcannot be ignored while defining thejurisdiction of TDSAT. The constitution ofTDSAT itself indicates that it is chairedby a sitting or retired Judge of theSupreme Court or sitting or a retired ChiefJustice of the High Court, one of thehighest judicial officers in the hierarchy,and the members of TDSAT have to be of thecadre of Secretaries to Government,obviously well experienced inadministration and administrative matters."(iii) Ramesh Mehta v. Sanwal Chand Singhvi and Others,2004 (5) SCC 409 :"27. A definition is not to be readin isolation. It must be read in thecontext of the phrase which would define it.It should not be vague or ambiguous. Thedefinition of words must be given ameaningful application; where the contextmakes the definition given in theinterpretation clause inapplicable, the samemeaning cannot be assigned."(iv) N.K.Jain and Others v. C.K.Shah and Others, 1991 (2)SCC 495 : https://hcservices.ecourts.gov.in/hcservices/ "13....As already noted, theseprovisions, which form part of the Act,which is a welfare legislation, are meantto ensure the employees the continuance ofthe benefits of the provident fund. Theyshould be interpreted in such a way so thatthe purpose of the legislation is allowedto be achieved (vide International Ore andFertilizers (India) Pvt.Ltd. v. Employees'State Insurance Corporation"). In SeafordCourt Estates Ltd.v.Asher,(1949) 2 All ER155 (CA), Lord Denning. L.J.observed : (AllER p.164)"The English language is not aninstrument of mathematical precision. Ourliterature would be much the poorer if itwere. This is where the draftsmen of Actsof Parliament have often been unfairlycriticised. A judge, believing himself tobe fettered by the supposed rule that hemust look to the language and nothing else,laments that the draftsmen have notprovided for this or that, or have beenguilty of some or other ambiguity. Itwould certainly save the judges trouble ifActs of Parliament were drafted with divineprescience and perfect clarity. In theabsence of it, when a defect appears, ajudge cannot simply fold his hands andblame the draftsman. He must set to workon the constructive task of funding theintention of Parliament, and he must dothis not only from the language of thestatute, but also from a consideration ofthe social conditions which gave rise to itand of the mischief which it was passed toremedy, and then he must supplement thewritten word so as to give 'force and life'to the intention of the legislature... Ajudge should ask himself the question how,if the makers of the Act had themselvescome across this ruck in the texture of it,they would have straightened it out ? Hemust then do so as they would have done. Ajudge must not alter the material of whichthe Act is woven, but he can and shouldiron out the creases." (emphasis supplied)"19. So much is about the opening https://hcservices.ecourts.gov.in/hcservices/ words to Section 2 and it, therefore,follows that the words 'contribution','scheme', 'fund' occurring in the saidsection should in the 'context' beotherwise interpreted as to apply to aprivate scheme also and if there is adefault in "contribution" by the exemptedestablishment, the same amounts tocontravention of Section 6 punishable underSection 14 (1-A)."7. We have heard the learned counsel for the parties andalso gone through the records.8. To deal with the contentions of the learned counsel,it is necessary to extract Sections 15 and 27 of the TelecomRegulatory Authority of India Act,1997 (in short, "the Act"),which read as under :"Section 15. Civil Court not to havejurisdiction.- No Civil Court shall havejurisdiction to entertain any suit orproceeding in respect of any matter whichthe Appellate Tribunal is empowered by orunder this Act to determine and noinjunction shall be granted by any Court orother authority in respect of any actiontaken or to be taken in pursuance of anypower conferred by or under this Act. ""Section 27. Bar of jurisdiction.- No CivilCourts shall have jurisdiction in respectof any matter which the Authority isempowered by or under this Act todetermine."9. The above Sections have to be read together withSection 14. In other words, Sections 15 and 27 will have nomeaning if Section 14 is not taken into consideration, since itindicates the very establishment and jurisdiction of theTribunal, as under : "14. Establishment of Appellate Tribunal.- TheCentral Government shall, by notification,establish an Appellate Tribunal to be known asthe Telecom Disputes Settlement and AppellateTribunal to - (a) adjudicate any dispute - (i) between a licensor and a licensee ;(ii) between two or more service providers ; https://hcservices.ecourts.gov.in/hcservices/ (iii) between a service provider and a group of consumers:10. From the above section, it is clear that the TelecomDisputes Settlement and Appellate Tribunal adjudicates thedisputes only between a licensor and a licensee ; between two ormore service providers and between a service provider and agroup of consumers. 11. So, it is important to know as to whether the partiesin the case on hand fall in the above category, for settlementof their dispute by the Appellate Tribunal. It is equallysignificant to perceive the definitions of the words "licensee","licensor" and "service provider".11.1. Section 2 (1) (e) defines the word "licensee" asunder:"licensee" means any person licensedunder sub-section (1) of section 4 of theIndian Telegraph Act,1885 (13 of 1885) forproviding specified public communicationservices.11.2. Section 2 (1) (ea) defines the word "licensor" asfollows :"licensor" means the CentralGovernment or the telegraph authority whorants a licence under section 4 of the IndianTelegraph Act,1885 (13 of 1885).11.3. The term "service provider" is defined in Section 2(1) (j) as under :"service provider" means theGovernment as a service provider and includesa licensee.12. It is not in dispute that the respondent has alicence under the Indian Telegraph Act,1885. Therefore, it is alicensee within the meaning of Section 2 (1) (e) of the Act and,consequently, a service provider within the meaning of Section 2(1) (j). But, the appellant is neither a licensee under theIndian Telegraph Act,1885, nor a service provider and he is onlya franchisee, who carries the signals of the respondent throughits cables to the end-users, namely, consumers. At the sametime, it cannot also be said as a consumer. Therefore, thepresent dispute is not covered by Section 14 of the Act and itdoes not fall within the jurisdiction of the Appellate Tribunal.13. Though the learned counsel for the appellant wouldsubmit that the respondent and the appellant would come withinthe definition of the words "Multi System Operator" and "Cable https://hcservices.ecourts.gov.in/hcservices/ Operator" respectively under Telecommunication (Broadcasting andCable Services) Interconnection Regulations 2004, and thatRegulation 2 (n) defines a "Service Provider" to include a MultiSystem Operator and Cable operator or distributor of TVchannels, we do not agree to the said submission, as the plainlanguage of Section 2 (1) (j) of the Act shows that theGovernment and a licensee under the Indian Telegraph Act aloneare included within the meaning of the word "service provider".14. As per the Cable Television Networks Rules,1994, a"Cable Operator" is a person who is licensed under a differentenactment by the Superintendent of Post Offices and on beingsatisfied that the applicant fulfils the provisions of theOrdinance, the registering authority shall issue registrationcertificate in Form-3. So, the regulations relied upon by thelearned counsel for the appellant cannot be imported intoSection 2 (1) (j) of the Act. 15. A Special Tribunal constituted under a specialenactment can exercise only a jurisdiction vested in it by thestatute and cannot be conferred with a special jurisdiction byjudicial pronouncement, by adopting a circuitous process and acircumventing interpretation. The Act does not give any scopefor importing those definitions into the provisions of the Act,especially when the Act itself contains the definitions of thewords.16. The decisions relied upon by the learned counsel forthe appellant in Cellular Operators Association of India andOthers v. Union of India and Others, 2003 (3) SCC 186, and Unionof India v. Tata Teleservices (Maharashtra) Ltd., 2007 (7) SCC517, were already cited before the learned single Judge. Thedecisions in both the said cases arose out of appeals filedunder Section 18 of the Act against the orders of the Tribunal.The dispute in those cases were either between the Governmentand the service provider or between two service providers,squarely covered by Section 14 of the Act. It is, in thatcontext, the Supreme Court held in both the aforesaid cases thatthe jurisdiction of the Tribunal is wide, not confined to anyrestrictions. The other authorities cited by the learned counselfor the appellant before this Court are (i) Star India (P) Ltd.(1) v. Sea TV Network Ltd. and Another, 2006 (4) Supreme CourtCases 130 (1) and (ii) Star India (P) Ltd. (2) v. Sea TVNetwork Ltd. and Another, 2006 (4) Supreme Court Cases 130 (2).Even these two cases were also on appeals against the orders ofthe Tribunal and the issue was not with regard to themaintainability of the suit. No question arose in the aforesaidcases as to whether one of the parties to the litigation was aservice provider or not. Therefore, the aforesaid decisionshave no application to the facts of the present case. 17. In the case on hand, there is an agreement between https://hcservices.ecourts.gov.in/hcservices/ the parties and the appellant, to wriggle out its obligation,has filed the application to reject the plaint. It is only onthe basis of the said agreement, the respondent has investedcrores of rupees for its business. Further, therespondent/plaintiff is an entity represented by its authorisedsignatory. Hence, it can sue and be sued. The suit is in thenature of specific performance to make the appellant perform itsobligation and it is an ordinary civil litigation, which willnot come within the scope of the Act. Therefore, in ourconsidered opinion, the suit is not barred by law and the plaintis not liable to be rejected.18. For the foregoing reasons, this O.S.A.fails and isdismissed. No costs. Consequently, the connected M.P.Nos.1 and2 are also dismissed.19. However, we make it clear that the obiter dicta madeby us in this judgment will be only for the purpose of disposingof this appeal and the same shall not, in any way, influence thetrial Court in disposing of the suit on merit. dixitSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Sub Assistant Registrar,Original Side, High Court,Madras 104.+ 1 cc to Mr. M. Sundar, Advocate SR No.20714DM(CO)SR/9.6.2009 O.S.A.No.230 of 2008