Judgment:
P.K. Rastogi, Member for Self and Mr. G. D. Gaiha, Member
These two petitions being interconnected have been heard together and being disposed of by this common judgment. An application for impleadment has also been filed by M/s Information TV Pvt. Ltd. which was allowed.
2. In Petition No. 17(c) of 2011, the petitioner is seeking redressal from this Tribunal against the disconnection of the petitioner’s channel “Music India” on DTH platform of the respondent on 18.10.2010 without complying the clauses 4.1 and 4.3 of the Interconnection Regulations.
3. The petitioner is running a music and entertainment channel by the name and style of Music India and for the purpose of the present petition, is a broadcaster. The respondent herein is a Broadcasting Corporation of India and is running the DTH Service DD Direct +.
4. The petitioner submits that it had been trying to place its channels on the respondent’s network since 2006 however, the respondent vide its letter dated 27.07.2007 showed interest in placing the channel of the petitioner on the DTH platform of the respondent for a carriage fee of Rs. 25 lakhs and requested the petitioner to communicate its consent to the same. In compliance of the acceptance for placement of the petitioner’s channel, the respondent placed the channel of the petitioner on its DTH platform with effect from 03.10.2007 and agreement dated 25.09.2007 was signed by the parties.
5. As the agreement mentioned above was coming to an end, the respondent vide letter dated 01.08.2008, called upon the petitioner to renew the carriage agreement for the year 2008-2009 on an increased consideration of Rs. 60 lakhs + service tax @ 12.36%. The respondent subsequently sent another letter dated 19.01.2009 informing the petitioner that as per the decision of the DTH Core Committee meeting held on 28.11.2008, the petitioner’s channel was decided to be continued for one more year on its DTH platform.
6. The petitioner further submitted that as the above said agreement was also about to expire between the parties, the Respondent vide its letter dated 22.09.2009, called upon the Petitioner to furnish a demand draft for an
amount of Rs. 60, 00, 000/- as carriage fee alongwith service tax @ 12.36%. However, even before the Petitioner could respond to the same, suddenly vide letter dated 01.10.2009, the Respondent sought to cancel the letter dated
22.09.2009 stating that a decision is yet to be taken by the Competent Authority. The Petitioner vide letter dated 06.10.2009, referred to letter
dated 22.09.2009 sent by the Respondent and stated that the Petitioner wanted to continue the agreement for a further period as per the existing carriage fees and terms and further thanked the Respondent for reselecting the channel of the Petitioner. The respondent finally vide letter dated 21.01.2010 expressed its willingness to continue with the channel of the petitioner on its DTH platform.
7. According to the petitioner, as per past experience it waited for a letter from the Respondent for renewal of the agreement for the year 2010- 2011; however, suddenly without any intimation whatsoever, the Respondent disconnected the channel of The Petitioner on 18.10.2010. The Petitioner immediately wrote letter dated 22.10.2010 sent on 26.10.2010 putting forth its grievances to the Respondent. The Petitioner in its letter requested the Respondent to renew the carriage agreement. As no response whatsoever was received from the Respondent, the Petitioner was further constrained to write letters dated 10.11.2010 and 25.11.2010 wherein the Petitioner expressed its grievance as to the non-reply on the part of the Respondent and further requested the Respondent to intimate the amount payable which would be deposited within 24 hours of such intimation.
8. The petitioner further submitted that the respondent did not issue a Public
Notice to inform the consumers that the channel of the Petitioner would be
disconnected and for what reasons. As per the Regulations, the Public Notice of
21 days was a mandatory requirement for disconnecting/ discontinuing a
channel by distributor of channel.
9. In view of the above circumstances, the petitioner in Petition No. 17(c) of 2011 prayed for following reliefs:
(a) Direct the Respondent to immediately reactivate/place the channel of the Petitioner namely "MUSIC INDIA" on the DTH Platform of the Respondent.
(b) Direct the Respondent to complete the required formalities on its part for formalization of the agreement for "MUSIC INDIA" channel with the Petitioner for continuation of carriage on the DTH service of DD Direct+ for 2010- 2011 on such terms and conditions found to be non- arbitrary, non-discriminatory, just and reasonable;
(c) Direct the Respondent to put in place a transparent objective and rational policy/criteria with, regard to transmission of signals of various TV channels on its DTH platform DD Direct+;
10. On the other hand, the respondent submitted that an agreement dated 2nd February 2009 was executed between the petitioner and the respondent in terms whereof the petitioner’s channel “Music India” was agreed to be carried on DD Direct + the DTH platform of the respondent. The said agreement commenced from 03.10.2009 and expired on 02.10.2010. It has a limited transponder capacity and as on date also there are more than 97 pending applications from various channels for being carried on the DTH platform of the respondent. The media industry is highly dynamic industry where change is the order and the respondent has to come with the channels mix up of various genres catering to various state of society, regions etc. The respondent is best equipped to decide which channel should form part of is bouquet so as to attract viewers and at the
same time discharge its duties under Section 12 of the Prasar Bharti Act. This right of the respondent cannot be defeated for the petty commercial gains of the channels like the petitioner.
11. In its further submission the respondent mentioned that by a judgment dated 16.12.2010, this Tribunal had directed the respondent to take a policy decision with regard to taking channel on the DTH platform and had also directed that the existing channels be allowed to continue to broadcast on payment of carriage charges. The said judgment was passed by the Tribunal on petitions filed by certain channels, which were removed/ sought to be removed in October 2010. Significantly, the petitioner did not move this Tribunal at that stage and has now belatedly filed the petition alleging that its removal from DD Direct+ was in violation of the provisions of the clause 4.2 and 4.3 of the Interconnect Regulations.
After the removal of the channel “Music India” from the DTH platform, another channel by name of “India News” was taken on the DD Direct+ w.e.f. 22.10.2010 and this was on DD Direct+ till June 2010. However, in view of the Commonwealth Games and the starting of HDTV transmission additional bandwidth was required and for that purpose “India News” and another channel “News 24” were removed from DD Direct +. Since a slot became available on the non-renewal of the agreement in respect of the petitioner’s channel, “India News” was taken on the DTH platform.
On discontinuation of two channels “Music India” and “Care World”, two other channels “India News” and “Pragya” were taken on the DD Direct+. At this point in time, there is no slot available on which “Music India” can be accommodated. For accommodating “Music India” one of the existing channels has to be removed from DTH platform. The respondent submitted that it was pertinent to state that in the judgment dated 16.12.2010 passed by this Tribunal, there was specific direction to restore the channel “Care World”. To implement the said directions, the channel “Pragya” was removed.
12. The respondent has pointed out that in its order dated 16.12.2010 in
Petition No. 410(c ) of 2010 and connected cases, this Tribunal had observed
at one place that one channel slot was vacant as on the date of passing of
the impugned order and that four channels slots had become available after
one HD feed has been withdrawn. The said observation in the order dated
16.12.2010 is factually erroneous in as much as the HD channel is still being
transmitted and is occupying four slots of standard definition.
13. The Intervenor - M/s Information TV Pvt. Ltd. submitted that the
present application (M.A. No. 69 of 2011) has been necessitated in view of a
letter 7.2.2011 received by the Applicant from the respondent informing the
applicant about the pendency of the present case and that the same may
affect the petitioner. It appears that the said communication was issued by
the respondent pursuant to order dated 3.2.2011 where in view of a
statement made by the counsel for the respondent that “…. In the event the
petitioners connection is to be restored one other channel i.e. “India News”
will have to be removed.”
14. The applicant submitted that it runs a news and current affairs channel
in the name of “India News”. The channel has been running since February
2008. In 2008 the applicant approached the respondent for placing its
channel on Doordarshan’s DTH channel – DD Direct Plus. The respondent
vide its letter dated 11.6.2008 approved the placement of the channel “India
News” on it’s DTH service DD Direct+ against a placement/ carriage fee of
Rs. 60 lakhs. The respondent renewed the agreement for a further period of
one year and an agreement to this effect was duly executed on 12.06.2009.
When the agreement was expiring in 2010 and the applicant
approached the respondent for its renewal, it was informed that
Doordarshan was going to introduce HD TV feed to telecast the
Commonwealth Games and that the HD format required 4 vacant slots, but
since against a capacity of 59 channels, 57 were already in place, it would
not be immediately possible for the respondent to renew the agreement
upon its expiry on 11.6.2010.
However, the applicant was given to understand that post of Commonwealth Games, the placement of Applicant’s channel would be resumed. Consequently, immediately upon the conclusion of the Commonwealth Games, the applicant approached the respondent for restoring the placement of its channel ‘India News’ on DD Direct Plus. The applicant was informed that the respondent was willing to place its channel on DD Direct Plus on an enhanced placement fee of Rs. 80 lakhs plus service tax, to which the applicant agreed and on 22.10.2010, the applicant paid the sum to the respondent vide DD No 793028. Though the formal agreement has not yet been executed, in view of the agreement having been reached and payment made, the applicant’s channel was restored on DD Direct Plus and is being carried by the respondent since then.
15. The intervenor further submitted that its channel “India News” has been on the air carried by the respondent since June of 2008, with the only hiatus being because of the Commonwealth Games. Immediately on the conclusion of Commonwealth Games its placement has been restored on payment of higher carriage / placement fees, which has been duly paid by the applicant.
16. In the circumstances of the rival contentions of the parties, the questions to be determined before us are whether the petitioner has any right to carry its channels on respondent DTH platform and whether the respondent has acted in accordance with contract between the parties and the relevant provisions of the Regulations.
17. Mr. Navin Chawla, the learned counsel for the petitioner has questioned the non-renewal of the petitioner’s channel, interalia, on the following grounds:
(i) No notice as envisaged under the Regulation 4.2 and Public notice as envisaged under Regulation 4.3 was given before discontinuation of petitioner’s signals.
(ii) The petitioner has better right to carry its signals on respondent’s DTH than “Pragya” and “India News”.
(iii) Renewal of agreement for carrying the channel by the respondent is covered under Regulation 8.1.
18. Mr. Arun Kathpalia, the learned counsel appearing on behalf of the
intervenor contended that clause 8.1 of the regulation will have no
application in this case. The petitioner neither issued any letter nor any
advance payment was made so the respondent was not bound to renew the
term.
19. Mr.Rajeev Sharma, the learned counsel appearing on behalf of the Prasar Bharti, argued that :
(a) The petitioner does not have an indefeasible right of renewal of its agreement.
(b) It is for the respondent and not for the petitioner to judge as to which channel would best suit its requirement of having a platform carrying various genres of channels having qualitative programming.
(c) The provision for a public notice is for the benefit of the consumers and not for the benefit of a commercial entity like the petitioner. As such the petitioner cannot take advantage of the said provision.
(d) The Regulation do not contain a “must carry” provision and it is open to a DTH operator to choose the channels, which it would like to carry on its platform.
(e) Just because the agreement in favour of the petitioner has been renewed from year to year would not mean that it has to be renewed perpetually or that the petitioner has an indefeasible right of renewal.
20. Admittedly, the petitioner has been trying to place its channels on the respondent’s network since the year 2006. However, finally in the year
2007, the respondent vide its letter dated 27.07.2007 showed interest in
placing the channels of the petitioner on the DTH platform for a carriage fee
of Rs. 25 lakhs. Accordingly, an agreement was executed between the
petitioner and the respondent on 06.12.2007 which was applicable from
3.10.2007 till 2.10.2008. This agreement was having a clause reading as
below:
“Term :
This agreement shall commence from 3.10.2007 and shall be valid for a period of one year till 2.10.2008. The agreement may be extended for such further period and on such terms as may be mutually agreed upon. However, fresh agreement shall have to be executed in case of any variance in terms of this agreement. “The channel provider’ must convey his intention for extension at least 90 days before the expiry of this agreement.”
21. On 01.08.2008, the respondent called upon the petitioner for the renewal of the agreement in respect of Music India on DTH platform. This agreement was executed on 10.02.2009 and where two clauses of terms were incorporated. A small but critical change was made in the clause relevant for the period of the agreement. The relevant clause reads as under :
“The term of this agreement and the services promised hereunder shall be for one year only. This agreement shall commence from 3.10.2008 and shall remain in force by a period of one year uptill 2.10.2009. There shall be no extension or renewal of this agreement. However, the channel provider shall be free approach Prasar Bharti for carrying its channel which shall be considered as a fresh agreement alongwith other new applicants on terms and conditions as may exist
at that time. This agreement shall not give any right and / or priority of any kind in favour of the channel provider for period beyond the term of the agreement. The channel provider accepts and acknowledges the same.”
This agreement was valid from 3.10.2008 to 2.10.2009 and it was specifically mentioned that there shall be no extension or renewal of this agreement. However, the channel provider may approach Prasar Bharti for carrying its channel which will be considered as a fresh agreement along with other new applicants.
22. On 22.9.2009, the respondent wrote a letter to the petitioner to furnish a demand draft for an amount of Rs. 60 lakhs for the agreement wef 1.10.2009 onwards. However, the same letter was cancelled by another letter dated 1.10.2009 as the competent authority had not taken the decision so far. The petitioner expressed its willingness to continue the agreement. Finally, the agreement was executed on 02.02.2010 but the period of agreement was from 03.10.2009 to 02.10.2010. Here also it was mentioned that there shall be no extension or renewal of this agreement. However, the channel provider may approach Prasar Bharti for carrying its channel which will be considered as a fresh agreement alongwith other new applicants as per terms and conditions existing at that time.
23. This agreement came to end on 02.10.2010. The petitioner did not approach the respondent for renewal of the agreement as prescribed under the contract. Even Prasar Bharti did not ask the petitioner for renewal or the execution of the new agreement. The petitioner’s channel was disconnected on 18.10.2010 although agreement period was over on 02.10.2010.
24. The DTH Core Committee of Prasar Bharti which met on 20th October 2010 decided to remove Music India and other channels from DD platform on completion of their present term and bring two channels, i.e. India News and Pragya on their platform. The term of Music India was already over on 02.10.2010 and channel was disconnected on 18.10.2010 as it was continuing without any agreement.
25. Music India approached this Tribunal on 10.01.2011 alleging that its channels had not been renewed by the respondent and requested for placing
of its channels on non-discriminatory, just and reasonable terms on its DTH
platform and reactivate the same which was removed from its network on
18.10.2010.
26. As per regulation 3.2, if the DTH operator seeks signals from thebroadcaster, it is bound by the Regulations to provide signals on certain terms and conditions. The relevant provision of clause 3.2 of the Regulations reads as under:-
“3.2 Every broadcaster shall provide on request signals of its TV channels on non-discriminatory terms to all distributors of TV channels, which may include, but be not limited to a cable operator, direct to home operator, multi-system operator, head ends in sky operator; Multi-system operators shall also on
request re-transmit signals received from a broadcaster, on a non-discriminatory basis to cable operators:
Provided that this provision shall not apply in the case of a distributor of TV channels having defaulted in payment. Provided further that any imposition of terms which are unreasonable shall be deemed to constitute a denial of request.”
The entire regulation casts obligations on the broadcaster and it must provide the signals to the signals seeker if it fulfills the basic conditions as prescribed under the regulations. However, in the present case, the broadcaster is seeking to carry its channels by DTH operator. There is no provision in the regulation which regulates the terms and conditions for carrying signals of the broadcaster. There are no regulations/ provisions which makes it obligatory on the part of the MSO/DTH operator to carry signals of the broadcaster.
27. Therefore, the relationship between the respondent and the petitioner
should be governed by contract executed between the two parties. Of
course, as this industry is regulated industry, the contract has to be in
accordance with the prescribed regulations, if any. We do not find any
particular provision which covers the terms and conditions for the carriage of
signals by the broadcaster.
28. Lot of argument have been made for the applicability of clause 8.1 of the interconnect regulations. While Mr. Chawla, the learned counsel for the petitioner was of the view that the said clause is applicable even for carriage of signals. Mr. Kathpalia for the intervenor was of the view that 8.1 itself was not applicable in this case.
29. According to Mr. Kathpalia, clause 8.1 is for subscription agreement
and there is a provision for renewal and it is only in case of supply of signals
by the broadcaster to the distributor. Clause 11 also is applicable for
renewal of subscription agreement and not for the renewal of the carrying of
the signals. Clause 8.1 and clause 11 are not for the renewal of carriage of
signals but are for supply of signals only.
30. Renewal of agreement is nothing but signing of a fresh agreement.
There is no provision even for compulsory agreement at the first instance
itself for carrying signals of the broadcaster. When one does not have
statutory regulation for compulsory carrying of signal how can there be
compulsory renewal. There is no clause which provides any obligation on
the part of the carrier for carrying the signals of broadcaster. Therefore,
the only compulsion on the part of the respondent seems to adhere to the
terms and conditions of the contract signed between the parties.
31. However, even if we consider that clause 8.1 is applicable in this
particular case, the terms and conditions prescribed under the clause should
be fulfilled by the parties in question. We may notice the provisions of
clause 8.1 :
“8.1 Parties to an interconnection agreement for supply of TV channel signals shall begin the process of negotiations for renewal of existing agreement at least two months before the due date of expiry of the existing agreement.
Provided that if the negotiations for renewal of the interconnection agreement continue beyond the due date of expiry of the existing agreement then the terms and conditions of the existing agreement shall continue to apply till a new agreement is reached or for the next three months from the date of expiry of the original agreement, whichever is earlier. However, once the parties reach an agreement, the new commercial terms shall become applicable from the date of
expiry of the original agreement.
Provided further that if the parties are not able to arrive at a mutually acceptable new agreement, then any party may disconnect the retransmission of TV channel signals at any time after the expiry of the original agreement after giving a three weeks notice in the manner specified in clause 4.3. The commercial terms of the original agreement shall apply till the date of disconnection of signals.”
32. There are three aspects for fulfilling the condition as prescribed under
the clause 8.1 :
A. The process of negotiations should start two months in advance
before the expiry of the agreement.
B. If the negotiations continue before the expiry of the agreement, the conditions of the previous agreement continue for another three months or the date of agreement whichever is earlier.
C. If the parties are not able to arrive at mutually acceptable new agreement, any party can disconnect retransmission of the TV channels at any time after the expiry of the original agreement after giving three weeks notice in the manner prescribed under clause 4.3.
33. In this particular case no party has initiated the process of negotiations. The process of negotiations will include willingness to continue with their relationship. The renewal is not binding or automatic and none of the party has started this process of negotiations.
34. Agreement period was over on 02.10.2010 itself and the petitioner have approached us only on 10.01.2011 i.e. after the expiry of 3 months period.
35. Third element relates to disconnection of transmission of TV channels
after giving three weeks notice as specified under clause 4.3.
36. In this particular case, when the process on negotiations itself has not
started, the proviso to the clause 8.1 is not applicable. Even if we consider
that disconnection has taken place without giving three weeks notice in the
manner specified under clause 4.3. Further, we are of the view that Clause
4.3 is for the purpose of informing the consumers and not the petitioner.
Clause 4.2 relating to disconnection of TV signals by the distributors is not
applicable in this case. This notice is necessary during the currency of the
agreement and not after the completion of the period of the agreement. At
the most consumers may approach this Tribunal and agitate about their
rights and obligations but the petitioner cannot claim right of renewal when
he has not shown any interest or willingness to continue their relationship by
executing a fresh agreement with the respondent.
37. The other issue relates to legitimate expectation of the petitioner viza- viz respondent as contended by the petitioner. The relationship of the petitioner, who has approached us for directing the respondent to carry its signals is covered by either contract signed by both the parties or under the regulations. When the respondent wrote to the petitioner two times for using its DTH carrier on certain fees, it asked the petitioner whether it would like to continue the new agreement. This year the respondent in its wisdom did not consider it proper to initiate the process.
38. A contract between the two parties clearly mentions that it is petitioner who has to approach to the respondent, if it would like to continue a new agreement for the next year. The petitioner did not choose to initiate this process. If it did not initiate this process as required under the regulation 8.1 of the interconnect regulation and under the contract, it cannot claim continuation of the agreement. The respondent is not obliged to follow the said clause without petitioner fulfilling its own obligation.
39. In view of the aforementioned reasons we are of the opinion that the
petitioner is not entitled for renewal of its agreement expired on 02.10.2010.
Petition No. 44(C) of 2011
40. In this Petition, the Petitioner has challenged the Termination of Lease
granted to it to broadcast its Channel – Pragya on the DTH Platform of the
Respondent.
41. According to the Petitioner, it has requested Respondent Corporation to bring its lifestyle channel on the Respondent’s DTH Platform, DD Direct+ vide letter dated 07.12.2007 and 09.01.2009. The Petitioner again requested the Respondent Corporation to bring its channel – Pragya on the DD Direct+, DTH Platform vide letter dated 04.02.2010. Therefore, the Petitioner channel had been on the wait-list for allotment since 2009 Finally in the month of November, 2010 the Respondent Corporation agreed to carry – Pragya Channel on its DTH platform, DD Direct +. The Petitioner paid Rs.80 lacs to the Respondent Corporation on account of the carriage fee vide a Demand Draft No.78068 dated 15.11.2010. The Petitioner also paid sum of Rs.8,24,000 on account of service tax vide a Demand Draft No.78069 is also dated 15.11.2010. An Agreement was also signed between the Petitioner and Respondent Corporation wherein it was agreed that Pragya Channel would continue to be aired on the DTH platform, DD Direct + of the Respondent Corporation for a period of one year.
42. The Respondent vide its letter dated 01.12.2010 informed the Petitioner ompany for the first time that one M/s Seven Star Pvt. Ltd.( Care World) TV Channel had been removed from DD Direct + Platform after expiry of its Agreement with the Corporation and that M/s Seven Star Pvt. Ltd. had appealed in the TDSAT in Petition No.410 (C) 2010 to retain its channel on DD Direct +. The Petitioner was to its utter surprise, further informed that the continuation of Pragya Channel was subject to the outcome of above matter pending before the TDSAT.
43. The petitioner further submitted that the Respondent vide its letter dated 29.12.2010 informed the Petitioner Company that its ‘Pragya’ Channel had been discontinued on DD Direct + by replacing Care World pursuant to the Order and Judgment dated 16.12.2010 of this Tribunal. In fact, this Tribunal was fully conscious of the same and has taken care to protect the interest of the Petitioner herein and specifically recorded that it did not think it necessary to implead the Petitioner Company as a party in those proceedings because there were vacant slots available on DTH Platform of the Respondent Agreement on which Care World could be accommodated without disturbing the operation of Pragya Channel on the DTH Platform of the Respondent. The act of the Respondent Corporation of terminating the Lease is in direct violation of this Tribunal’s Judgment dated 16.12.2010.
44. The petitioner questioned the impugned action of the respondent on
the following grounds:
a. The Petitioner was not given an opportunity to approach this Tribunal before the disconnection of the Petitioner’s channel was caused. In fact, Clause 4.3 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulation 2004(as amended in 2006) clearly mandates that disconnection of a channel, if any, is to be caused on the expiry of 21 days from the date of publication of the notice in the newspaper or service of notice issued in terms of Clause 4.1 thereof, whichever is later. In the present case, neither Clause 4.1
nor Clause 4.3 of the Regulations was complied with by the
Respondent Corporation.
b. The Respondent Corporation had granted lease in favour of the
Petitioner Channel unconditionally. Neither at the time of entering into
an Agreement with the Petitioner nor at the time of accepting a sum of
Rs.80 lacs towards carriage fee and a sum of Rs.8 lacs towards service
tax, was the Petitioner informed that the slot that was allotted to the
Petitioner was previously allotted to the M/s Seven Star Pvt. Ltd. The
Petitioner’s allotment was not made subject to other business arrangements of the Respondent Corporation.
c. The Petitioner was not a party before this Tribunal in Petition No.410 (C) of 2010 and therefore no observation made in the said Judgment qua the petitioner is final and binding. In fact, this Tribunal was fully conscious of the same and has taken care to protect the interest of the Petitioner herein and specifically recorded that there were vacant slot available on DTH Platform of the Respondent Agreement on which Care World could be accommodated without
disturbing the operation of Pragya Channel on the DTH Platform of the Respondent Corporation. The respondent corporation has acted in
clear violation of this Tribunal’s Judgment dated 16.12.2010 passed in Petition No. 410(C) of 2010. The relevant extract of Judgment dated 16.12.2010 passed by this Tribunal in Petition No. 410(C) of 2010 is as under:
“It may be true that M/s. Pragya Channel is not a party to the proceeding but we do not think that it was necessary for the respondents to do so in the facts and circumstances of the case.
The petitioners can be accommodated in the respondent’s platform, one of the channels being vacant on the date of passing of the impugned order and as four channels have become available after one HD Feed has been withdrawn.”
45. In view of the facts stated above, the petitioner requested for setting aside and quashing of the impugned letter dated 29.12.2010 of the respondent and direct the respondent corporation to bring back the petitioner channels (Pragya) on its DTH platform DD Direct + and comply with Judgment dated 16.12.2010 passed by this Tribunal in petition No. 410 (C) of 2010.
46. The respondent on the other hand submitted that vide an order dated 30.11.2010, this Tribunal had directed the respondent to inform the petitioner that the continuation of its channel would be subject to the result of the Petition No. 410(c) of 2010. In compliance of the said order, a letter dated 1st December 2010 was faxed to the petitioner the same day and another copy of the said letter was also faxed the next day as well.
47. Further in November 2010 the agreement in respect of the channel “Care World” expired and it was removed from DD Direct +. After the removal of the channel “Care World” the petitioner’s channel was taken on DD Direct + and a signed agreement was submitted by the petitioner. However, in the meantime “Care World” filed a petition before this Tribunal contending that the agreement in its favour ought to have been renewed. The said petition was allowed by this Tribunal vide an order dated 16.12.2010. By the said order, the respondent was directed to restore “Care World” channel within 24 hours. Pursuant to said orders, it became necessary to remove the petitioner’s channel to restore the channel “Care World”.
48. It was also submitted by the respondent that as on date there is no
vacant slot on its DTH platform on which the petitioner’s channel can be
accommodated. The respondent has a technical capacity for carrying 59
channels. DD Direct + is carrying 19 Doordarshan channels and 36 private
channels. In addition, it is also carrying a high definition channel, which
occupies four slots occupied by a Standard definition channel.
It is also pertinent to state that in the judgment dated 16.12.2010
passed by this Tribunal, there was specific direction to restore the channel
“Care World”. To implement the said directions, the channel “Pragya” was
removed.
49. We have noticed that Pragya Channel was removed by the respondent to implement the direction of this Tribunal to restore the channel “Care World”. In October 2010, petitioner was given permission for carrying its channel on respondent’s DTH platform. The petitioner had been informed earlier about the pendency of the proceeding relating to the Petition No. 410(c) of 2010.
50. We have been informed that one of the channel “Lokmat” has fallen vacant. However, within a week the same party had requested to restore the said channel again. We would not like to go into details of these aspects. It is for the respondent to take a decision as to which channel is to be carried on its platform in accordance with its guidelines. We had already directed the respondent in our judgment dated 16.12.2010 in Petition No. 410(c) of 2010 to take a policy decision at the highest level with regard to allotment or refusal of new channel. We are of the opinion that the respondent should take a decision as early as possible about the request of the petitioner in this case in accordance with its own guidelines.
51. Accordingly, the Petition No. 17(c) of 2011 is dismissed and Petition No. 44(c) of 2011 is disposed of in terms of the aforementioned directions.52. In the facts and circumstances of the matter, there shall be no order as to costs.