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Union Of India v. Rahul Springs Pvt. Ltd. .

Telecom Disputes Settlement And Appellate Tribunal

Feb 6, 2019

Judgment

Subsequent
References

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Telecom Disputes Settlement & Appellate Tribunal — Order dated 6 February 2019

Factual and Procedural Background

This matter arises from Broadcasting Petition No. 477 of 2018 filed in the name of the Union of India through the Secretary, Department of Space, and represented by an authorised signatory who is Senior Head (Legal), Antrix Corporation Ltd. The petitioner seeks recovery of Rs. 1,30,01,472/- under an agreement dated 08.12.2010 (referred to as Annexure P-1). The agreement’s Exhibit B (clause 11) describes Antrix Corporation Ltd. as the "Contract Manager" vested with powers to act on behalf of the petitioner, including initiating legal proceedings; Antrix is stated to be a 100% owned company of the Department of Space and has authorised the concerned official by Board Resolution (Annexure P-2) to institute proceedings.

The petitioner contends that "broadcasting services" fall within this Tribunal's jurisdiction by virtue of Gazette Notification S.O. 44(E) dated 09.01.2004 and the Telecommunication (Broadcasting & Cable Services) Interconnection Regulations 2004. The respondent is an operator of a television channel and thus, according to the petitioner, both parties fall within the definition of "service provider" under Section 2(1)(j) of the TRAI Act, bringing the dispute within Section 14 jurisdiction of the Tribunal.

Procedurally, the respondent filed MA No.472 of 2018 raising a preliminary objection to the maintainability of the petition under Sections 14 and 14A of the TRAI Act. The Tribunal heard counsel for both sides on that preliminary objection and issued the instant order.

Legal Issues Presented

Whether the petition is maintainable before the Tribunal under Sections 14 and 14A of the TRAI Act — specifically, whether the dispute falls within the Tribunal's jurisdiction as a dispute between "service providers".
Whether the petitioner (through Antrix/Department of Space) qualifies as a "service provider" under the TRAI Act or is only a provider of passive infrastructure (such as leased transponder capacity) excluded from the Tribunal's remit.
Whether rights and obligations under a main agreement between AsiaSat and Antrix (a foreign law governed contract) and any arbitration clause therein render the subordinate agreement between petitioner and respondent non-justiciable before this Tribunal.

Arguments of the Parties

Petitioner’s Arguments

The petition has been filed by the Union of India (Department of Space) through an authorised signatory of Antrix Corporation Ltd., which has authority (Annexure P-2) to institute proceedings and acts as Contract Manager under Exhibit B.
The dispute arises from an agreement dated 08.12.2010 (Annexure P-1) for provision of space segment capacity; the petitioner asserts that this activity falls within the definition of "broadcasting services" as per the Interconnection Regulations 2004 and the Gazette Notification bringing broadcasting services within the Tribunal's jurisdiction.
The petitioner contends that providing INSAT/space segment capacity is not merely passive infrastructure but constitutes services covered by the TRAI Act; accordingly, the dispute is within Section 14 jurisdiction of the Tribunal.

Respondent’s Arguments

The respondent argued by MA No.472 of 2018 that the petitioner/Antrix lacks essential attributes of a "service provider" under the TRAI Act and that leasing of transponder capacity is a passive infrastructure service, not transmission/reception to the public.
Reliance was placed on the definition of "licensee" in Section 2(1)(e) of the TRAI Act and on paragraph 16 of the Delhi High Court judgment in VIOM Network Ltd. vs S.Tel Pvt. Ltd. (2013) 139 DRJ 641 to support the contention that the petitioner is not a service provider for these purposes.
The respondent also submitted that the principal/“main” agreement for KU-Band capacity between Asia Satellite Telecommunications Company Ltd. (AsiaSat) and Antrix (dated 28.05.2010) is governed by foreign law and contains dispute-resolution provisions which would channel disputes to an international institution; since the present agreement is subordinate to that main agreement, the respondent argued the Tribunal has no jurisdiction over the dispute.
It was initially argued that an arbitration clause required reference to arbitration, although this point was not pressed at a later stage.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
VIOM Network Ltd. vs S.Tel Pvt. Ltd. (2013) 139 DRJ 641 (Delhi High Court)	Interpreted the meaning of "licensee" (reference to paragraph 16) under the TRAI Act; relied on by respondent to argue petitioner is merely a licensee/passive infrastructure provider.	The Tribunal held that the VIOM interpretation of "licensee" was not directly relevant because the petitioner did not approach the Tribunal as a mere licensee but asserted status as a "service provider" under broader Interconnection Regulations 2004; therefore VIOM did not support the respondent's preliminary objection.
Aircel Digilink India Ltd. vs Union of India and other related matters (TDSAT judgment dated 06.01.2005)	Addressed the effect of arbitration clauses and related jurisdictional questions before the Tribunal (as referenced by the order).	The Tribunal treated this prior detailed TDSAT judgment as settling the issue that an arbitration clause in the agreement did not oust the Tribunal's jurisdiction in the circumstances; the respondent did not press the arbitration point after reference to this precedent.
Digicable Network India Ltd. Vs. Disha Media Pvt. Ltd. (Order dated 24.04.2018, B.P. No.548 of 2017)	Followed the approach in the Aircel Digilink decision on arbitration/jurisdictional aspects (as a subsequent authority applying the same principle).	The Tribunal noted that this later order followed the settled approach and reinforced that the arbitration point was not pursued by respondent in the present case.

Court's Reasoning and Analysis

The Tribunal proceeded by evaluating the preliminary objection in light of the agreement between the parties, statutory definitions, relevant policy documents and prior authorities. The key steps of the analysis were:

The Tribunal observed that the dispute arises under a valid agreement dated 08.12.2010 between the petitioner and respondent and that the respondent admits being a service provider; if the petitioner also qualifies as a service provider under the TRAI Act, the dispute would fall within the Tribunal's jurisdiction under Section 14.
The Tribunal examined materials placed on record in reply to the MA: Annexure A (Policy Framework for Satellite Communications, 1997), Annexure B (norms/guidelines/procedure for implementation), and Annexure D (letter dated 10.10.2000 concerning lease of transponders for augmenting INSAT capacity for private users through Antrix). These documents indicate governmental policy contemplates leasing/buying/building capacity for non-government users and envisage an active role for the petitioner.
The Tribunal considered the respondent's reliance on selected provisions (Articles 9, 17, 19) of the AsiaSat–Antrix main agreement and rejected the contention that those provisions displace the Tribunal's jurisdiction over the present subordinate agreement. The leased transponder capacity in dispute is availed under the direct agreement between the petitioner and respondent; the respondent is not a party to the AsiaSat–Antrix agreement and therefore cannot invoke its terms to defeat jurisdiction.
The Tribunal noted Exhibit B’s description of Antrix as a 100% Department of Space owned company appointed as Contract Manager with authority to administer agreements and to issue legal notices and initiate legal measures on behalf of the petitioner; this supports the petitioner's capacity to sue.
Addressing the respondent’s reliance on VIOM (concerning the definition of "licensee"), the Tribunal stated that the VIOM discussion of "licensee" was not decisive because the petitioner did not claim merely to be a licensee; rather, the petitioner claimed to be a "service provider" as defined in the Interconnection Regulations 2004, which definition encompasses dissemination of communication by transmission through space and thus embraces the provision of space segment capacity for broadcasting purposes.
The Tribunal explained that providing INSAT space segment capacity and authorising frequency ranges to meet digital satellite news gathering requirements constitutes an active service (not merely passive infrastructure like towers/hardware) and falls within "broadcasting services" intended to be received by the general public, whether rendered directly or indirectly.
The Tribunal relied on the statutory definition in Section 2(1)(j) of the TRAI Act which expressly includes the Government as a service provider; since the petitioner is Government (through Antrix) and the arrangement resembles a licensor–licensee relationship, the petitioner qualifies as a service provider.
The Tribunal observed that the respondent initially raised an arbitration point but ultimately did not pursue it; the Tribunal referenced its earlier decision in Aircel Digilink (06.01.2005) and subsequent orders (including Digicable order of 24.04.2018) to indicate that the arbitration point had been addressed by prior Tribunal jurisprudence and therefore was not a basis for sustaining the preliminary objection in this case.

Holding and Implications

PRELIMINARY OBJECTION REJECTED; MA No.472 of 2018 DISPOSED OF.

Direct effect on the parties:

The Tribunal found the petition maintainable before it because the petitioner qualifies as a "service provider" under the TRAI Act and the dispute arises under a valid agreement between the parties; consequently, the Tribunal rejected the respondent’s maintainability objection.
MA No.472 of 2018 (the respondent’s preliminary objection) was disposed of and the main petition was directed to be listed before the Court of Registrar on 20.02.2019 for steps to make it ready for hearing, meaning the substantive proceedings were permitted to continue before the Tribunal.

Broader implications:

The order applies statutory definitions, policy documents and prior Tribunal authorities to hold that provision of space segment capacity by a governmental entity (through Antrix) can constitute "broadcasting services" and render the petitioner a service provider for jurisdictional purposes under the TRAI Act. The Tribunal relied on precedent (Aircel Digilink and subsequent orders) regarding arbitration/jurisdictional aspects; the order does not purport to establish a new legal principle beyond applying the existing definitions and prior Tribunal jurisprudence to the facts of this case.

Delivered by: S.K. Singh, Chairperson; concurred by A.K. Bhargava, Member. Order dated 6 February 2019.

Show all summary ...

TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL

NEW DELHI

Dated 6^th February, 2019 M.A. No.472 of 2018 In

Broadcasting Petition No. 477 of 2018

Union of India … Petitioner Versus

Rahul Springs Pvt. Ltd. … Respondent

BEFORE:

HON'BLE MR. JUSTICE SHIVA KIRTI SINGH, CHAIRPERSON HON'BLE MR. A.K. BHARGAVA, MEMBER

For Petitioner : Mr. Arjun Krishnan, Advocate Mr. Ankur Singh, Advocate

For Respondent : Mr. Vivek Sarin, Advocate Mr. Brian H Moses, Advocate

Mr. Satish C. Kaushik, Advocate

ORDER

By S.K. Singh, Chairperson - We have heard learned counsel for the respondent/applicant and also learned counsel for the petitioner/non-applicant in respect of a preliminary objection raised by the respondent through MA No.472

of 2018, as to the maintainability of the petition under Sections 14 and 14A of the TRAI Act, 1997.

2. This petition has been filed in the name of Union of India through the Secretary, Department of Space, Government of India and petitioner has disclosed that it is being represented by an Authorised Signatory, an official working as Senior Head(Legal), Antrix Corporation Ltd. (Contract Administrator). The petition is mainly for recovery of an amount of Rs.1,30,01,472/- from the respondent payable under an agreement dated 08.12.2010 between the petitioner and the respondent. The agreement is

Annexure P-1. It supports the claim made by the petitioner that under clause 11 of "Exhibit B" annexed to the agreement, Antrix Corporation Ltd. (Antrix) was appointed as the "Contract Manager" and vested with all powers on behalf of the petitioner including initiation of legal proceedings. That clause describes Antrix as a hundred per cent owned company of the Department of Space. Antrix has authorised the concerned official through a Board Resolution (Annexure P-2) to institute the present proceedings before this Tribunal. Petitioner has pleaded that "broadcasting services" have been included within the jurisdiction of this Tribunal vide Gazette Notification S.O. 44(E) dated 09.01.2004 issued by the Ministry of Communication & IT. This service has been defined in the Telecommunication (Broadcasting & Cable Services) Interconnection Regulations 2004, to mean - "dissemination of any form of

communication…….by transmission of electro-magnetic waves through space…..intended to be received by the general public either directly or indirectly". The petitioner has claimed that a careful perusal of the entire scheme and policy governing the subject matter of the agreement between the parties as well as the terms of the agreement make the petitioner - a "service provider".

3. The respondent is, undisputedly a service provider engaged in the business of running/operating a television channel. Hence, the petitioner claims that since both the parties are covered by the definition of "service provider" in terms of Section 2(1)(j) of the TRAI Act, the dispute involved in the petition lies within the jurisdiction available with the Tribunal under Section 14 of the TRAI Act. And as a consequence other courts or tribunals have no jurisdiction over the present dispute.

4. The respondent, on the other hand, has taken a contrary stand and raised a preliminary objection by filing MA No.472 of 2018. It claims that the main agreement for the provision of KU-Band Space Segment Capacity in the AsiaSat 5 System dated 28.05.2010 between a foreign entity, namely, Asia Satellite Telecommunications Company Ltd. and Antrix, no doubt describes Antrix as the customer and that it has obtained KU-Band capacity for use by its

sub-customers who are implementing satellite-based services throughout India, still, the petitioner or Antrix lack the essential attributes of a service provider under the TRAI Act. According to the respondent, the service of leasing of transponder is at best a passive infrastructure service having no semblance of providing transmission or reception services to the members of "public", the users. In support of this submission, learned counsel for the respondent has highlighted the meaning of licensee as provided in Section 2(1)(e) of the TRAI Act and placed reliance on paragraph 16 of the judgment of a Division Bench of Delhi High Court in the case of VIOM Network Ltd. Vs. S.Tel Pvt. Ltd., (2013) 139 DRJ 641. Additionally, it has been submitted that the right obtained through the agreement with AsiaSat is to be governed by a foreign law and dispute under that agreement has to go to an international institution and therefore, the petitioner cannot claim that the present dispute lies within the jurisdiction of this Tribunal. According to the learned counsel for respondent, the present dispute is based on a "subordinate" agreement and therefore, it will be subject to the same limitations of jurisdiction which are to be found in the main agreement between AsiaSat and Antrix.

5. The last submission noted above is absolutely misconceived. The present dispute is covered by a valid agreement between the parties and if petitioner succeeds in showing that it is a service provider under the TRAI Act, the dispute arising under such agreement shall be well within the jurisdiction of this

Tribunal because the respondent admits to be a service provider under the TRAI Act. For deciding this issue, the relevant materials have been brought on record by way of reply to the MA. Annexure A is a copy of Policy Framework for Satellite Communications as approved by Government in 1997. Annexure B is a copy of norms, guidelines and procedure for implementation of the approved Policy Framework. Annexure D is a copy of letter dated 10.10.2000 issued by the competent authority of the petitioner on the subject of lease of transponders for augmenting INSAT capacity for private users through Antrix Corporation. The Policy contemplates taking suitable measures such as lease, buy or build capacity for augmenting INSAT capacity for non-Government users like the respondent. It also contains some other provisions for the same purpose.

6. A careful perusal of relevant provisions of the so-called main agreement between AsiaSat and Antrix, such as Article 9, Article 17 and Article 19 on which learned counsel for the respondent has placed reliance, does not in any way help the respondent in respect of the preliminary objection. The leased transponder capacity is being availed by the respondent through an agreement dated 08.12.2010. The space segment capacity in the INSAT-AsiaSat 5 Satellite System availed by the respondent is subject to various terms and conditions. The petitioner has reserved the right even to reallot the capacity on any other INSAT/GSAT Satellite consistent with technical performance and other specification defined in Exhibit A to this agreement. The plea of AsiaSat

being a foreign entity governed by foreign law is, thus, without any substance. The respondent is not a privy to that agreement and has no right based upon the same. The respondent authorises, as indicated in Exhibit A, to provide frequency range for uplink and downlink, through a separate frequency allocation letter. As indicated earlier, Exhibit B recognises Antrix a hundred per cent owned company of Department of Space, as the Contract Manager to administer the agreements and exercises all powers under the agreement including issue of legal notice and initiating other legal measures.

7. The definition of "licensee" which was the subject matter of judgment in the case of VIOM Network Ltd.(supra) is not relevant in this case because petitioner has not claimed to have approached this Tribunal in the present matter as a mere licensee, but as a service provider. This term has been widely defined under the Interconnection Regulations 2004 and includes dissemination of any form of communication and transmission of electro-magnetic waves through space or through cable. The petitioner by providing the respondent space segment capacity in the INSAT System, so as to meet respondent's digital satellite news gathering requirements, has clearly rendered services which are covered by "broadcasting services" intended to be received by the general public. It does not matter whether such services have been rendered directly or indirectly. The act of providing space segment capacity along with the authorization of appropriate frequency range constitutes services which no other

private person can perform. The petitioner cannot be equated with a provider of a passive infrastructure such as towers and hardware. The Policy Framework, the norms and the guidelines clearly require a very active role of the petitioner in providing INSAT capacity for use by non-governmental parties. A careful perusal of all the relevant provisions discloses that the arrangement under the Policy under which petitioner has entered into agreement with the respondent very much resembles the role of petitioner as a licensor and the respondent as a licensee. This also makes the petition maintainable before this Tribunal.

8. Section 2(1)(j) defines "service provider" to mean "the Government as a service provider and includes the licensee." In the present case, the petitioner being a Government has obtained internet services as a customer and then the respondent has been authorised to use and utilize the said service as per agreement under which the respondent is also a customer. The service, as noted above, is clearly not a passive service for providing infrastructure alone. We have no hesitation in holding that the petitioner in this case is a service provider under the TRAI Act.

9. Initially it was faintly argued on behalf of the respondent that because of an arbitration clause in the agreement, the dispute requires to be referred to an arbitrator. However, this point is not pressed at later stage and rightly so

because this issue has been settled by a detailed judgment of this Tribunal in the case of Aircel Digilink India Ltd. Vs. Union of India and other related matters, decided on 06.01.2005 and subsequently followed in recent judgments and orders such as order dated 24.04.2018 in B.P. No.548 of 2017, Digicable Network India Ltd. Vs. Disha Media Pvt. Ltd.

10. For the above stated reasons, we find no merit in the preliminary objection and the same is accordingly rejected. MA No.472 of 2018 stands disposed of. The petition shall now be listed before the Court of Registrar on 20.02.2019 for passing necessary orders and directions to make it ready for hearing.

…........……………… (S.K. Singh, J) Chairperson ….........……………… (A.K. Bhargava) Member

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