The present Special Civil Application has been filed by the petitioner under Articles 14, 19(1)(g) and 21 as well as under Article 226 of the Constitution of India and also under the provisions of Cable Television Networks (Regulation) Amendment Act, 2011 on the grounds stated in the memo of petition for the following prayers :-
(A) YOUR LORDSHIPS be pleased to allow this Special Civil Application.
(B) YOUR LORDSHOPS may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the notification of the Respondent dtd 11/11/11 qua the time period prescribed for the LCOs to complete the task of Digitization of Cable Network i.e. Digital Addressable System in the Cities of Gujarat Viz Ahmedabad, Rajkot, Vadodara and Surat and be pleased to extend the time for completion of the Digitization in the said cities upto 30th September, 2013.
(C) YOUR LORDSHOPS may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent not to take any coercive action that may be taken by the respondent on not adhering of the deadline of 31st March, 2013, prescribed for the Cities of Gujarat Viz Ahmedabad, Rajkot, Vadodara and Surat under the Act, upto 30th September, 2013.
(D) Pending admission, hearing and final disposal of this Application YOUR LORDSHIPS be pleased to stay the implementation and execution of the Notification dtd. 11/11/2011 qua the deadline for the LCOs to complete the task of Digitization of Cable Network i.e. Digital Addressable System in the Cities of Gujarat Viz Ahmedabad, Rajkot, Vadodara and Surat and be pleased to extend the time for completion of the Digitization in the said cities upto 30th September, 2013.
(E) Pending admission, hearing and final disposal of this Application YOUR LORDSHIPS be pleased to direct the Respondent authorities not to take any coercive action that may be taken by the respondent in case of not adhering of the deadline of 31st March, 2013, prescribed for the Cities of Gujarat Viz Ahmedabad, Rajkot, Vadodara and Surat under the Act, upto 30th September, 2013.
(F) YOUR LORDSHIPS be pleased to pass such other and further relief as may be deemed proper and fit in the interest of justice.
Affidavit-in-reply has been filed on behalf of the respondent no.1 with much detail with regard to the policy and the steps which have been taken. Similarly, reply affidavit has also been filed by the respondent no.3, which is taken on record.
Heard learned Sr. Counsel, Y.N. Oza appearing with learned counsel, M.J. Mehta for the petitioner, learned AGP Shri Rohan Yagnik and learned Assistant Solicitor General, Shri P.S. Champaneri for the respondent no.1.
Learned senior counsel, Shri Oza has submitted that initially as pointed out from the order of the Hon ble Division Bench of Madrash High Court, extension was granted for four metro cities on the same ground of non-availability of set-top-boxes (STBs). He has pointedly referred to the Notification issued by the Ministry of Information and Broadcasting, New Delhi dated 21st June, 2012. He therefore submitted that when the power or discretion under the statute is vested in the respondent authority, which in fact has been exercised earlier while considering the same issue of granting extension for the purpose of four metro cities, same criteria is required to be adopted while deciding the extension of time for the purpose of Phase-II for 38 cities. He pointedly referred to the papers and submitted that same difficult with regard to non-available of set-top-boxes (STBs) is there. He pointedly referred to the provisions of Cable Television Networks (Regulation) Amendment Act, 2011 and also notification to submit that when the notification has been issued in exercise of powers under the statute, same could also be extended in exercise of such statutory power by the Union of India i.e. the respondent no.1. Learned senior counsel, Shri Oza submitted that as the notification is issued under the statute and it is a matter of policy, he does not join an issue with regard to the policy but has to submit with regard to the implementation thereof. He again emphasized that the implementation part has to be with reference to the grass-root reality and, therefore, when the power under the statute or the regulation as referred to hereinabove has been exercised, same could be exercised in respect of Phase-II for four cities, for which, the petition has been filed. He has also referred to the judgment of the Division Bench of the High Court of Gujarat reported in case of P.N. Barot Vs. State of Gujarat, reported in 1993 (2) GLR 1569 and pointedly referred to the observations made in para no.39 to support his submissions that it is not the validity or constitutionality but the fact situation which are required to be considered. He therefore submitted that the present petition may be allowed and the respondent no.1 may be directed to exercise the discretion as per the statute or regulation for extension of time in the public interest. He has also stated that if such aspects or the criteria are not applied uniformly, Article 14 of the Constitution of India will come into play and, therefore, the present petition may be allowed.
Learned Assistant Solicitor General, Shri P.S. Champaneri has referred to the affidavit-in-reply filed on behalf of the respondent no.1-Union of India in detail in the present petition and pointedly referred to various aspects with regard to the implementation of the policy about the Digital Addressable System (DAS) under the Cable Television Network (Regulation) Act, 1995 and subsequent Cable Television Network (Regulation) Amendment Act, 2002. He submitted that such provisions are there since 1995 and as stated in detail in affidavit in reply, way in which the entire system is working and how the respondent no.1-Union of India has framed the policy and, therefore, since such a decision has been taken in public interest, the present petition under Article 226 of the Constitution of India may not be entertained. Learned Assistant Solicitor General, Shri P.S. Champaneri has also pointedly referred to the details of the Regulation and how chain comprises of main four players i.e. broadcaster, Multi System Operator (MSO), Local Cable Operator (LCO) and the end consumer with their different role as to how the broadcasters singles received from the satellite are decrypted and encrypted for further transmission to the television viewers or ultimately costumers with detail. He therefore submitted referring to the provisions of Cable Television Networks (Regulation) Amendment Act, 2011 that Section 4A of the principal Act has been amended by this Amendment Act of 2011, which provides as under :-
Provided that the date specified in the notification shall not be earlier than six months from the date of issue of such notification to enable the cable operators in different States, cities, towns or area to install the equipment required for the purposes of this sub-section .
Learned Assistant Solicitor General, Shri P.S. Champaneri also referred to amended Section 11 of the Act and submitted that contravention thereof would be inviting consequences. He therefore submitted that the petitioner have come forward for extension on the ground of non-availability of set-top-boxes (STBs) when they were very much aware that the policy is being implemented and this is known since November, 2011, therefore, now it cannot be said that set-top-boxes (STBs) are not available and the policy may have an ultimate effect on the consumer and, therefore, the extension may be granted. He submitted that the exercise of discretion under the statute has to be with reference to the facts of the case and in case of four metro cities, time was less and the extension was granted, which is not the case herein. Therefore, learned Assistant Solicitor General, Shri P.S. Champaneri submitted that the present petition may not be entertained.
In rejoinder, learned senior counsel, Shri Oza has again referred to the papers to emphasis about the aspect of exercise of discretion in public interest when it has been earlier exercised. He again stated at the cost of repetition that set-top-boxes (STBs) are not available and it is beyond the control, hence, practical approach may be adopted. Therefore, the intervention of the court is necessary and, therefore, the present petition may be allowed directing the respondent no.1 to exercise the discretion for extension of time in public interest.
In view of the rival submissions and having regard to the facts and circumstances as well as the detailed affidavit of the respondent no.1, few facts are very evident, which are required to be noted.
It is evident that the respondent no.1-Union of India in exercise of statutory powers has framed the policy with regard to the digitization of cable network for the regulations, which was in place since 1995, thereafter, amendment has been made by Cable Television Networks (Regulation) Amendment Act, 2011, by which original Act has been amended, which has been referred to by learned Assistant Solicitor General, Shri Champaneri. It is required to be mentioned that everyone concerned is made aware of this process of digitization as stated in detail in the affidavit of the respondent no.1-Union of India. Further since it is a matter of policy for which the issue is raised only on the ground of non-availability of set-top-boxes (STBs) is required to be considered. The entire policy is sought to be implemented in Phase manner and, therefore, first phase covering four cities has been over. In second phase, there are 38 cities, which are covered, where it is sought to be implemented. As referred in Cable Television Networks (Regulation) Amendment Act, 2011, Section 4A is sought to be amended, which clearly provides for six months time, meaning thereby, the respondent no.1 is aware about the fact that some period or time is required to be given to the cable operators of the different States for the purpose of installation of the necessary equipments. Therefore as rightly contended by learned Assistant Solicitor General, Shri Champaneri, to the knowledge of the petitioner or the cable operators, it is very much evident that they were required to take steps. Further, the issue with regard to the rival business interest between the cable operators and DTH or the Dish operator is also not very relevant in asmuchas it is for the ultimate customer to have option and if the set-top-boxes (STBs) are not available, they have to wait and exercise is option. Therefore, such issue about the business competition is also not very relevant.
Therefore, moot question which is required to be considered is the ground on which the extension is sought or the direction is sought from the Court for the issuance of mandamus to the respondent no.1 to exercise the discretion under a statute for extension of time based on the ground of non-availability of set-top-boxes (STBs). The said ground cannot be pressed into service as it cannot be said to be a doctrine of necessity which may perhaps require examination of such issue for the purpose of any such direction. In the facts of the case, non-availability of set-top-boxes (STBs) cannot be a ground to exercise discretion under Article 226 of the Constitution of India when the implementation of the policy of the respondent no.1 under regulation or the notification has been made aware and known to all concerned including the concerned players in the entire system of this cable television network. It is well accepted that normally the court would not entertain the petition or interfere with the implementation of the policy which has been sought to be implemented in a phase manner particularly when it involves the technical aspects. Therefore, when everyone including the consumer is aware about this aspect, there is no question of even public interest and, therefore, it would not be appropriate to exercise any discretion as sought to be canvassed for any such direction to the respondent no.1-Union of India to grant any extension.
However at the same time, the respondent no.1-Union of India may consider public interest in asmuchas there might be a conflicting interest of the different players like broadcaster, Multi System Operator (MSO), Local Cable Operator (LCO) and ultimate consumer citizens. The broadcaster would have their interest in getting this digitization for the purpose of their own calculation and the business interest by resorting to various technical aspects like each connection would mean each TV set though in a prevailing system of cable TV with one connection, more than one TV set could have accessed to channels which in fact would benefit the ultimate consumer. It is for the Union of India to have a proper mechanism for protecting the interest of ultimate consumer. It may not be out of place to mention that law as well as international treaties provide for the use of natural resources of the nation for the benefit of people of nation and it should be utilized in the manner which is beneficiary to the people. The broadcasters and channels like Star, Zee etc. may have their own interest but they used the air of this country for the purpose of receipt and transmission of the signals from the satellite and, therefore, balance has to be struck between the right and interest of everyone concerned rather than has to be a protection for the ultimate consumer. However, it will be open for the petitioner to approach the respondent no.1-Union of India seeking extension which may be considered.
Therefore, the present petition cannot be entertained and deserves to be dismissed in limine. Accordingly, the present petition stands dismissed. Notice is discharged. Interim relief granted earlier stands vacated.
After the order was dictated and pronounced, learned senior counsel, Shri Y.N. Oza has requested for the stay of the operation of the order and continuation of the interim relief which has been granted initially. In the facts and circumstances and for the reasons recorded in the present order, the prayer cannot be entertained and stands rejected.
Sd/-
(RAJESH H.SHUKLA, J.) Gautam Page 14 of 14