The Petitioner(a proprietorship concern), a Local Cable Operator, is desirous of obtaining supply of decoders of the channels of Gemini TV and Gemini Movies so as to enable it to retransmit the same to its customers in two villages namely, Dowleswaram and Bhemagiri.
A request was made by the Petitioner to the Respondent herein to supply the decoders in respect of the aforementioned channels on or about 5.3.2011 It must, however, be placed on record that along with the said request, no document was annexed except the Postal Registration Certificate.
The Petitioner contended that its subscriber base was about 200.
By reason of a letter dated 4.5.2011 the Petitioner reiterated his request contending that it would confine its area of operation in the aforementioned two villages only. It is furthermore contended that the optic fibre route map would also show the limits of two villages as its area of operation. With the said letter, the Petitioner is said to have annexed the following documents:
“1. Photostat copy of License given by Indian Posts
2. Photostat copy of License given by Service Tax
3. Photostat copy of Pan Card
4. Photostat copy of Address proof
5. Photostat copy of License given by the Panchayath
6. Photos showing my control room number in 4”
The Respondent, however, contends that except the Postal Registration Certificate, it had not received any other document from the Petitioner. The Petitioner sent another letter of request to the Respondent on or about 4.5.2011
This Petition has been filed on 20.9.2011 before this Tribunal praying inter alia for the following reliefs:—
“a. DIRECT the respondent to provide uninterrupted good quality of signals of its channels namely Gemini TV and Gemini Movies to the petitioner's network through decoders in the area namely Dowleswaram; and
b. direct the respondent to execute the agreement for supply of signals namely Gemini TV and Gemini Movies on the basis of reasonable terms and conditions without any discriminating terms as per the present subsisting connectivity;”
Along with the Petition, a Subscriber Line Report (SLR) dated 8.9.2011 has been filed.
The Petitioner has also annexed a copy of the Map showing the area of operation and laying of optic fibre cable. A list of equipments, which are necessary to be installed for the purpose of retransmission of channels, has also been annexed.
The Respondent, in its reply, inter alia, contended that it had been trying to verify the SLR and list of equipments provided by the Petitioner.
Although in the said reply it is contended that the Petitioner had been asked to supply various documents, the Respondent has not specified the nature of the documents which were necessary for the purpose of supply of decoders in terms of Clause 3.2 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulation, 2004 as amended from time to time.
In support of his case, Mr. K. Karuna, Proprietor of the Petitioner concern examined himself. With his affidavit he has annexed a letter dated 29.9.2011 addressed to the learned counsel for the Petitioner with a copy to the Manager of the Respondent referring to the outcome of meeting between the parties, the contents whereof inter alia are as under:
“In such discussion the Manager insisted me to pay Rs. 60,000/- (Rupees sixty thousand only) which is equivalent to 4500 connections and 18 channels package, which has been paying by a cable Operator in Dowlaiswaram, and he insisted me to pay the same for allotting de-coders. Then I informed him that I need only Gemini TV and Gemini Movies that too for 200 connections. On such information the Manager heckled at me and told me to take de-coders for free and earn money on such transmission and also commented that now a day every one is habituated to T.D Sat.
After such discussion when I asked him to acknowledge my presence he prepared some matter in English and asked me to sign on it. On that I refused to sign as I do not know to read and write English and asked permission to have an assistance of an Advocate to go through and to explain the matter to me.
But the Manager refused to have an assistance of an Advocate. As such I returned from the office without acknowledgement of my presence on 28-9-2011 as per the orders of the Hon'ble court.”
Mr. Sunder Khatri, learned counsel appearing on behalf of the Petitioner would contend that the Petitioner being a small cable operator and having supplied all the requisite documents to the Respondent if not earlier during pendency of this Petition, the reliefs prayed for by it should be granted.
Mr. Khatri when questioned would contend that some of the documents which have not been filed along with the Petition would also be supplied to the learned counsel for the Respondent in course of the day.
Mr. Nitin Bhatia, learned counsel appearing on behalf of the Respondent, on the other hand, would contend that from a perusal of the cross-examination of Mr. K. Karuna (PW-1) it would appear that the Petitioner has not filed the requisite Pole Permission so as to enable it to retransmit signals. It has also not filed ‘No Objection Certificate’ from the previous MSO, and apart from the documents annexed with the Petition the Petitioner had not filed any other documents. The learned counsel would furthermore contend that admittedly the SLR had not been furnished with the Respondent on request.
Our attention has also been drawn to the reply of the said witness in cross examination to the following effect:
“it is correct that the respondent had demanded documents from me after receiving the requests and I had not provided the same.”
It is, however, curious to notice that at the next moment a suggestion had been given to the said witness that he had failed to provide all the documents as demanded in terms of the Interconnect Regulations which was denied by the said witness.
Appreciation of evidence of a witness must be considered having regard to the entirety of his deposition.
It is not in controversy that the Respondent has not issued any letter to the Petitioner asking it to supply certain documents which, according to it, were necessary for the purpose of complying with the provisions of Clause 3.2 of the Regulations.
The Respondent by now is not only aware of the details of the subscribers of the Petitioner but also is aware of its area of operation, the nature of equipments installed as also other relevant informations which we have noticed heretobefore.
The Respondent, for reasons best known to it, did not examine any witness. It is, therefore, difficult for us to arrive at a conclusion as to why no verification of the SLR furnished by the Petitioner could be made and/or what other documents are necessary for it to commence supply of signals of two channels i.e Gemini TV and Gemini Movies to the Petitioner's network.
There cannot be any doubt or dispute that with a view to avoid unnecessary litigations, this Tribunal may take into consideration the subsequent events for the purpose of moulding reliefs prayed for by the Petitioner.
We, therefore, are of the opinion that in the facts and circumstances of this case, interest of justice would be sub-served if the Respondent is directed to verify the SLR and inspect the control room set up by the Petitioner, the area Map and other necessary facts which are necessary for it to enter into an agreement with the Petitioner.
We have noticed heretobefore that Mr. Khatri submitted that the copies of the other documents shall be handed over to the learned counsel for the Respondent in course of the day.
Mr. Khatri submits that the Pole Permission shall be supplied to the Respondent within one week.
Apart from the documents which have already been supplied to the Respondent or which have been brought on record of this Petition, the Respondent, if it so desires, would intimate the Petitioner in writing within one week from date to supply to it such other documents or furnish such informations which are absolutely necessary for the purpose of complying with the provisions of Clause 3.2 of the Regulations.
Mr. Bhatia contended that the Petitioner should be asked to supply the No Dues Certificate from the MSO of whom it was a franchisee. However, keeping in view the fact the M.A filed by Dowlaiswaram Communication Network as also the fact that the dispute between the Petitioner and the said MSO is pending consideration before a competent Civil Court, we are of the opinion that the Petitioner need not be directed to furnish the No Dues Certificate from the said MSO. There cannot, however, be any doubt or dispute that the liability of the Petitioner vis-a-vis the said MSO would abide by the result of the civil litigation pending between the parties.
It is expected that the Respondent shall comply all the requisite formalities within a period of one month from date, whereafter, subject to the provisions of the Interconnect Regulations, the parties may enter into a subscription agreement.
This petition is disposed of with the aforementioned observations and directions with no order as to costs.
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(S.B Sinha)
Chairperson
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(P.K Rastogi)
Member