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4. Disconnection of TV channel signals 4.1 No broadcaster or multi system operator shall disconnect the TV channel signals to a distributor of Page 23 of 29 TV channels without giving three weeks‟ notice to the distributor clearly giving the reasons for the proposed action. Provided that a notice would also be required before disconnection of signals to a distributor of TV channels if there was an agreement [a written agreement], permitting the distribution of the broadcasting service, which has expired due to efflux of time. Provided further that no notice would be required if there is no [written agreement], permitting the distribution of the signals. 4.3 A broadcaster/ multi system operator/ distributor of TV channels shall inform the consumers about such dispute to enable them to protect their interests. Accordingly, the notice to disconnect signals shall also be given in two local newspapers out of which at least one notice shall be given in local language in a newspaper which is published in the local language, in case the distributor of TV channels is operating in one district and in two national newspapers in case the distributor of TV channels is providing services in more than one district. The period of three weeks mentioned in sub-clauses 4.1 and 4.2 of this regulation shall start from the date of publication of the notice in the newspapers or the date of service of the notice on the service provider, whichever is later.” 53. Bare perusal of Clause 4.1 of the Regulations and the proviso appended thereto would clearly go to show that no notice would be required to be issued if a written agreement permitting distribution of signals has not been entered into. . There cannot be any doubt or dispute that the Petitioner must restitute the benefit, it received by way of supply of signals of the channels from the Respondent of which it is the Content Aggregator in terms of the interim order. If the area Indira Nagar did not form part of the agreement, the Petitioner must restore the benefit in relation thereto to the Respondent. We, however, in view of the submissions of Mr.Mishra need not go into the question of quantum thereof. 66. Sofar as question of balancing the equities between the parties is concerned, in the facts and circumstances of the case, the same does not arise. 67. Petitioner is not entitled to any equity. It having not entered into any agreement in respect of the area of Indira Nagar, it cannot be permitted by reason of a judicial fiat to continue to operate in the said area without any agreement in that behalf. It having resorted to unauthorized cable casting has made itself liable for discontinuance of supply of signals at the hands of the Respondent. Respondent cannot be deprived of such a right to which it is otherwise entitled to under the Regulations. Page 29 of 29 68. Liberty is granted to the Respondent to file an appropriate petition with regard to realization of its dues. 69. For the reasons aforementioned, there is no merit in this petition. It is, accordingly, dismissed with costs and with the aforementioned observations

TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL

Kite shop in Lucknow

Kite shop in Lucknow (Photo credit: Wikipedia)

NEW DELHI
Dated : 2.5.2012
Petition No.254 (C)/2011
Lucknow 9 Cable Network Pvt. Ltd. … Petitioner

Vs.
MSM Discovery Pvt. Ltd. … Respondent
BEFORE:
HON’BLE MR. JUSTICE S.B. SINHA, CHAIRPERSON
HON’BLE MR.P.K. RASTOGI, MEMBER
For Petitioner : Mr.Vikram Singh, Advocate
Mr.Kamal Kapoor, Advocate.
For Respondent : Mr.A.C. Mishra, Advocate.Page 2 of 29
J U D G M E N T
S.B. Sinha
Interpretation of Clauses 4.1 and 4.3 of the
Telecommunication (Broadcasting and Cable Services)
Interconnection Regulations, 2004 as amended from time to time
(the Regulations) is in question in this petition.
2. Before, however, adverting to the said issue, we may notice
the basic fact of the matter which lies within a narrow compass.
Petitioner is a Multi Service Operator (MSO).
3. It entered into an affiliation agreement with the Respondent
herein, which is a content aggregator of various channels, on or
about 19.9.2009.
4. The area of its operation was as under :
“LUCKNOW 9 CABLE NETWORK PRIVATE LIMITED
3
RD
FLOOR, DAYAL CHAMBERS, RAM MOHAN RAI
MARG,HAZRATGANJ, LUCKNOW -226001
Vivek Khand, Vinay Khand, Nawabpurwa, Vineet
Khand, Viram Khand, Vijay Khand, Patrakar Puram, Page 3 of 29
Viraat Khand, Viraaj Khand, Vishesh Khand, Vikas
Khand, Vibhav Khand Mantri Aawas, Vishesh Khand,
Vikrant Khand, Vijyant Khand, Ujariown Murlinagar,
Shakti Nagar, Ismile Gan, Malhor. Bbd Matyari.
Khadra, Chowk, Treveni Nagar, Shadat Ganj Mukti
Ganj Colony, Thakur Ganj, Amber Ganj, Friend
Colony, Bala Ganj, Nanak nagar, peer Bukhara, Ghas
mandi, Raja Bajar, Baba balak das Puram, Asarfabad
Hussaina Baad, Nakkhas, Daulat Ganj, Mansoor
Nagar RadhaGram, Rasis Nagar, Chaupatia, Manohar
Nagar, Mali Ka Sarai, City Station, Vajeer Ganj, River
Bank Colony, Maulvi Ganj Nadan Mahal Road, Shastri
Nagar, Aish Bagh, Tilak Nagar, Rakab Ganj, Tudia
Ganj, Shah Ganj, Bazar Khala, Hasan Puria, Kashmiri
Mohalla, Pul Gulam Hussian, Nav Basta, Napeir Road
part1, 2. Thaseen Ganj, Genrall Ganj, Ali Colony,
Zehra Colony, Nagria, Kalyan Puria, Vishwas Nagar,
Musahib Ganj, Ahmed Ganj, Kashi Vihar Colony, Pani
Wali Gali, Kachha Pul, top Darwaza, Katra Vision
Begh, Baba Hazara Bagh, Devi Das Marg, Mehboob
Ganj, Muzammam Nagar, Badi Peer Khan, Tessin
Ganj, Hatha Mirja Ali Khan Hatha Mohd. Ali khan sharif
Manjil, Tudia Manjil, Ram Ganj, Shiv Puri, Mohini
Purva, Rahis Manjil, Sheesh Mahal, Lajpat Nagar,
Khoti Rahim Baksh, Khun Khun ji Road, Arif
Ashaiyana, Regency Awadh, Kusum Deep, Kamla
Nehru Marg, Jaahuri Mahollla, Ghadiyali Mohalla,
Dullai Mohalla, Abdul Aziz Road, Akbari Gate, Purani
Sabji Mandi, Bagh Tola, Hatha Bhekm shah, Jhamai
Tola, Dazi Bagiya, Rani Katra, Mirza Mandi, Bagh
Maha Narayan , Bazar Kali Jee, Sarfaraz Ganj, Rastogi
Nagar, Camp well Road, Fatima Colony, Jafariia
Colony, Jhandkad Bagh, Subash Marg, Chachi Kuwan.
Uday Ganj, Hussain Ganj, Phool Bagh, Sadar Teli
Bagh, P.G.l. Arjun Ganj, Gossian Ganj, Bandariya
Bagh, Kali Das Marg Governor House, Yojna Bhawan,
Cantt, Lal Kuan, Halavak Road, MohanLal Ganj, Ganj,
Eidico Colony, Raj Bareli Road, OCR Nai Basti, Raj
Bhawan colony, Gulistaan colony, Vikramaditya Marg,
Purana Quila, Mail Avenue, KKC Colony, Lal Quan,
Station Road, Bijnour GPO to Lal Kuan (Whole left
hand side), Sadar, Khudai, Murli Nagar, Khatkina Page 4 of 29
Chitvapur Rdso Colony, Southcity, Virnda Van Colony,
Mawaia Rai Bareliy Road, Ruchi Khand PWD Colony
and Adjoining area, Irrigation colony, Sultanpur Road,
Badi Lal Kurti”
5. The subscription fee payable in terms of the said agreement
was Rs.3,80,780/-, the rate of the channel being Rs.139.02/- on a
subscriber base of 2739.
6. Indisputably, the Respondent was to supply signals of the
following channels to the network of the Petitioner:-
“Aaj Tak
Animal Planet
Animax
AXN
Channel 8
Colors
Discovery
Discovery Travel & Living
Headlines Today
MTV
NDTV 24×7
NDTV India
NDTV Profit
Nickelodeon
SAB
SET
SET MAX
SET PIX
Tez
VH1”Page 5 of 29
7. It is not in dispute that out of the said channels, the Colors,
MTV, NDTV 24×7, NDTV India, NDTV Profit, Nickelodeon and VH1
Channels went out of its bouquet.
8. It is also not in dispute that two other channels, namely, Neo
Sports and Neo Cricket joined the bouquet of the Respondent.
9. The agreement between the parties expired in August, 2009.
It is, however, contended that by reason of clause 4 of the said
agreement dated 19.9.2009, it was automatically renewed.
Indisputably, however, the parties proceeded on the basis that
the agreement had expired in December, 2010.
10. Petitioner contends that a new arrangement was entered into
by the parties. The area of operation was expanded to the entire
municipal limits of the town of Lucknow as a result whereof the
amount of subscription fee was increased from Rs.3,80,780/- to
Rs.4,67,705/- exclusive of taxes.
11. Petitioner had been paying the amount of subscription fee
inter alia on the premise that it has been supplying signals to a
large number of customers in the area of Indira Nagar, Lucknow. Page 6 of 29
12. A notice in terms of Clause 4.1 of the Regulation was issued by
the Respondent on or about 9.2.2011 contending that the Petitioner
unauthorisedly extended its area of operation. The said notice was
sent under certificate of posting. Petitioner denies and disputes the
receipt of the said notice.
13. A public notice in terms of Clause 4.3 of the Regulations was
published in two newspapers `Rashtriya Sahara‟ and `The Pioneer‟
by the Respondent herein on or about 17.2.2011.
14. Supply of signals to the Petitioner‟s network, was discontinued
on and from 12.5.2011. Respondent, however would contend that it
had never agreed for increase in the area but in fact the increase in
the subscription fee was caused owing to the inclusion of Neo
Group of Channels.
15. In view of the rival contentions of the parties, this Tribunal by
an order dated 18.8.2011, framed the following issues :-
(i) “Whether disconnection of signals by the
Respondent was legal and valid? If not, what would
be the effect thereof?Page 7 of 29
(ii) Whether the Petitioner has made out a case for
a direction upon the Respondent to renew the
agreement?
(vi) To what relief the Petitioner is entitled to?”
16. In support of its case, the Petitioner examined one of its
Directors Mr.Jeevan Khanna; whereas the Respondent examined
Mr.Kashif Raza, its authorized representative.
17. Before adverting to the oral evidence adduced by the parties
herein, we may notice some of the provisions of the agreement
dated 19.9.2009, which expired on 31.3.2010.
“4. Term – Subject to the Standard Terms, the term
of this Agreement shall begin on the Start Date set
forth on Page 1 hereto and end on the immediately
following March 31 (the “Initial Term”). This
Agreement shall be automatically renewed on the
same terms and conditions provided herein for
successive years starting on April 1 and ending on
March 31 of the following year unless written notice
of termination is provided by Distributor to Affiliate no
later than march 1. As used herein, “Term” shall
mean the Initial Term together with any renewal
thereof.
4. Anti Piracy – Affiliate shall not (a) authorize or
cause or suffer any portion of the Services to be
recorded, duplicated, cablecast, exhibited or
otherwise used for any purpose other than for
distribution by Affiliate at the time the same is made
available. If Affiliate becomes aware that any
unauthorized third party is recording, duplicating, Page 8 of 29
cablecasting, exhibiting or otherwise using the
Services for any other purpose, Affiliate shall
immediately so notify Distributor and Affiliate shall
take all reasonable steps necessary to prevent such
unauthorized use; (b) authorize or permit the
exhibition of the Services or any portion thereof at
any place where admission for exhibition of such
Services is charged; or (c) use the rights granted to it
hereunder for any unlawful purposes. Distributor
reserves the right to initiate a criminal action against
Affiliate in the event there is a breach of this Section.
17. Termination
xxx
Clause 17.1 (q) – By giving two (2) days‟ notice to
Affiliate without assigning any reason; or”
18. The validation form annexed to the said agreement provides
for the rate of supply of signals per subscriber per month at
Rs.139.02/-. It also contains the subscriber base of the Petitioner
being 2739.
19. The said agreement also contains the details of the area of
operation of the Petitioner. It is neither denied nor disputed that
the Indira Nagar area did not form part of the original agreement.
20. Mr.Vikram Singh, learned counsel appearing on behalf of the
Petitioner would contend :-
(i) The subscription fee having substantially been
increased despite the fact that a large number of Page 9 of 29
channels had gone out of the bouquet of the
Respondent would clearly go to show that a new
agreement was arrived at by and between the
parties hereto in terms whereof the area of
operation of the Petitioner increased to the entire
town of Lucknow including Indira Nagar.
(ii) In any event the Petitioner having been
supplying signals to the customers of Indira Nagar,
this Tribunal should balance the equities between
the parties by directing the Respondent to continue
to supply signals of its channels in respect of the
area of Indira Nagar upon payment of the agreed
amount of subscription fee on the basis whereof the
Petitioner had been making payments and/or on
such reasonable term (s) as it may think fit and
proper.
(iii) The purported notice under Clause 4.1 of the
Regulations having not been received, in terms
whereof an MSO is entitled to know the reason of
termination of the agreement, the purported notices Page 10 of 29
under Clauses 4.1 and 4.3 should be held to be bad in
law.
(iv) In any event the Respondent‟s purported notice of
termination dated 9.2.2011, being not one of 21 days,
as is required under Clause 4.1 of the Regulations,
the same should not be permitted to be acted upon.
(v) Even no notice having been issued in terms of
Clause 17.1 (q) of the agreement, this Tribunal
should hold that the agreement between the parties
was not validly terminated.
21. Mr.A.C. Mishra, learned counsel appearing on behalf of the
Respondent, on the other hand, urged :-
(i) Respondent in this case is not concerned with
the outstanding amount but only with the act
of unauthorized transgression of its area of
operation on the part of the Petitioner.Page 11 of 29
(ii) Having regard to the fact that the Petitioner
had admittedly been operating in the area of
Indira Nagar in the town of Lucknow, there
cannot be any doubt or dispute that it had
violated the conditions of the agreement by
taking recourse to unauthorized cable casting.
(iii) A notice sent under certificate of posting also
raises a presumption of valid service and the
same having not been rebutted, it must be
held that the same has duly been served upon
the Petitioner.
(iv) By way of abundant caution, the Respondent
however, has served another notice on the
Petitioner under Clause 4.1 of the Regulation on
or about 1.7.2011, which was sent under speed
post and in that view of the matter, the
Respondent must be held to be entitled to
discontinue supply of signals to the network of
the Petitioner.
22. Respondent herein has filed two replies. Page 12 of 29
23. A short reply was filed by the Respondent for hearing of the
interim prayer of the Petitioner, wherein it was contended :-
“13. …It is submitted that the agreed increase in the
subscription fee was on account of the inclusion of the
“neo group of channels” in the bouquet of channels of
the Respondent. It is further submitted that the area
of operation was agreed to have been restricted to the
area of operation agreed vide the written Agreement
between the parties.
18. That the contents of Paragraph 4 are admitted
and it is reiterated that the agreement between the
Petitioner and the Respondent had expired on
31.3.2010.”
24. Respondent with the said short reply annexed a copy of the
agreement.
25. It had also annexed a copy of notice under Clause 4.1 of the
Regulations being dated 9.2.2011, the relevant portions whereof
read as under :-
“ We are disheartened to note that basis the
investigation done on the ground and information
available to us, we are seriously alarmed by the
manner of your functioning which is not at all in
consonance to and altogether unbecoming of the
stature of a MSO, leave alone your sheer disregard for
the basic business ethics. That the signals of the
“TheOneAlliance” channels have been unauthorisedly
re-transmitted by you in the area of INDRANAGAR in
LUCKNOW city. In this regard, please be informed for
authorized distribution/ re-transmission of the signals Page 13 of 29
of the TOA channels, you are required to execute an
appropriate licensing contract/ agreement with MSM
Discovery Pvt. Ltd.
Whereas, we have noticed that without taking any
prior authorization from MSMD by signing the
agreement in this regard, you have been retransmitting the signals of TOA channels by pirating/
stealing the signals of our channels.
You are aware that your act as such constitutes a
criminal offence under Section 379 of the Indian Penal
Code, besides being a blatant violation of the
Copyrights of the principal channels comprised in the
TOA Bouquets. As such you had also committed a
criminal offence of infringement of the copyright of the
TOA Channels of MSMD which falls under Sections 51,
52A, 63, 69 and 37 of the Indian Copyright Act, 1957
against which we are entitled to initiate appropriate
criminal proceedings against you besides making you
liable to pay compensation for the unlawful profit
earned by you.
We are to state that acts of unauthorized cable
casting and material suppression of facts had now
become endemic to you. Please note that your such
illegal acts without any prior agreement/
arrangement/ intimation to us is severely affecting our
commercial interests. You are hereby put to notice to
immediately refrain from cable casting and TOA
channels on receipt of this notice failing which we shall
initiate appropriate civil/criminal proceedings against
you making you liable for the costs and consequences
arising thereof. Hence, you are called upon to
immediately refrain, cease and desist from unauthorized supply/ pirating of the signals of the TOA
channels, failing which necessary action to vindicate
our rights, interests and entitlements shall be initiated
against you.”
26. In the Public Notice, the reasons for termination was stated to
be both non-payment of dues as also unauthorized cable casting.Page 14 of 29
27. Rendition of `Broadcasting and Cable Services‟, being
governed by a regulatory regime, there cannot be any doubt or
dispute that in the event of conflict between the contractual
provisions and those of the Regulations, the later shall prevail.
28. In terms of the said Regulations as amended in 2009 which
came into force on and from 17.3.2009, it was obligatory on the
parties to a franchise agreement to enter into an agreement in
writing.
29. Although, Mr.Vikram Singh has drawn our attention to Clause
4 of the Agreement dated 19.9.2009, evidently the parties had
proceeded on the basis that the same had expired on 31.3.2010.
30. Keeping in view the provisions of the Regulations, there cannot
furthermore be any doubt or dispute that inter alia on the ground of
breach of the provisions of the agreement and/or the Regulations,
the supply of signals can be discontinued subject, of course, to
compliance of the provisions contained in Clauses 4.1 and 4.3 of the
Regulation. Page 15 of 29
31. It must be placed on record that the supply of signals to the
Petitioner‟s network was discontinued on and from 12.5.2011.
32. This petition was filed on 18.5.2011.
33. The parties were heard in the matter of grant of interim relief
on 25.5.2011.
34. By an order of the said date, the Respondent was directed to
restore supply of signals to the Petitioner‟s network on its
depositing a sum of Rs.7.77 lakhs till April, 2011 as also on the
Petitioner‟s undertaking to pay the monthly charges in terms of the
Agreement dated 19.9.2011.
35. It was directed that the Petitioner shall continue to pay the
subscription amount of Rs.4,67,705/- per month.
36. Sofar as sending of notice under `Certificate of Posting‟ is
concerned, a decision of this Tribunal in India Cablenet Company
P.No.146/2009 decided on 25.1.2010, a decision of the Delhi High
Court in Tarlok Chand Khanna and Anr. vs. Raj Kumar Kapoor &
Ors. reported in ILR 1982 1 156 as also the decision of the Page 16 of 29
Supreme Court of India in State of Maharashtra vs. Rashid B. Mulani
reported in (2006) 1 SCC 407, were noticed in the said order to
opine that the same prima facie had not been served, in the
following terms:-
“The Petitioner has, thus, been able to make out a
strong prima facie case. The factors of „balance of
convenience‟ and „irreparable injury‟ are also in
its favour. According to Petitioner the LCOs have
been migrating to the distributor of the Respondent
namely Jolly Sky Brothers which is a part of
the Den Group of Company.
In the event, an order of injunction in
mandatory form is not issued,
all other LCOs may shift to the rival MSO of Petitioner.
In that event, Petitioner would lose its entire
business. In a situation of this nature, where
Respondent can be compensated on monetary terms
and its interest can be secured, Petitioner cannot be
monetarily compensated as it will go out of the
business in no time.
The question of `balance of convenience‟ between
the parties is required to be considered in the light of
the question of `balance of inconvenience‟ to the
other. The term `irreparable loss‟ does not mean
that in all cases monetary compensation would be
sufficient. It means substantive loss. It would
include such cases where actual amount f
compensation cannot be determined. A person once
go out of business may not be able to restart it.
We have noticed heretobefore the conduct of the
parties. The Respondent had issued notices and
taken actions in various phases. In fact, issuance of Page 17 of 29
the crucial letter being dated 3.2.2011 prima facie
has not been proved to be served.”
37. We may, however, notice that this Tribunal in India Cable Net
Company Ltd. vs. Economic Entertainment and Anr. being Petition
No. 146(C) of 2009 decided on 21.5.2010 in the fact situation
obtaining therein did not place much reliance on the `Certificate of
Posting‟.
38. In Tarlok Chand Khanna (supra) the Delhi High Court opined :-
“It has often been pointed out that though the
requirement of the Companies Act is satisfied by
posting a communication under certificate of posting.
Service by this mode is the easiest stand for any one
to take at any time and it is not a sheer coincidence
that in practically all controversial meetings, the party
claiming to have held the meetings and to have
notified the others almost always relies on a certificate
of posting clearly pointing to the possibility that such
meetings are invariably managed rather than held.
This is because of the unfortunate circumstance that
certificates of posting are readily available….”
39. In State of Maharashtra (supra) the law was laid down in the
following terms:-
“17. A certificate of posting obtained by a sender is
not comparable to a receipt for sending a
communication by registered post. When a letter is
sent by registered post, a receipt with serial number is Page 18 of 29
issued and a record is maintained by the post office.
But when a mere certificate of posting is sought, no
record is maintained by the post office either about
the receipt of the letter or the certificate issued. The
ease with which such certificates can be procured by
affixing antedated seal with the connivance of any
employee of the post office is a matter of concern. The
Department of Posts may have to evolve some
procedure whereby a record in regard to the issuance
of certificates is regularly maintained showing a serial
number, date, sender‟s name and addressee‟s name
to avoid misuse. In the absence of such a record, a
certificate of posting may be of very little assistance,
where the dispatch of such communications is
disputed or denied as in this case. Be that as it may.”
40. We may place on record that the Postal Authorities have
issued Post Office Guide Part I, para 32 whereof read as under:-
“32. Object in issuing Certificates. – The object in
granting certificates of posting is to afford the public
an assurance that letters and other articles entrusted
to servants or messengers for posting have actually
been posted. The grant of a certificate will not,
however, mean that the letters and articles in respect
of which the certificate is issued were fully prepaid
with postage stamps, nor will it guarantee in any way
the dispatch of the articles entered in the certificate
on the same day, unless they are handed over well in
time to catch the last dispatch of mails for the day for
the particular destination concerned. It must be
clearly understood that the articles in respect of which
such certificates are issued are not registered and that
they are treated in exactly the same manner as if they
had been posted in a letter box. In the event of loss,
damage or delay, the certificates will confer no claim
for compensation, nor do they furnish any proof of the
nature of the contents.”Page 19 of 29
41. There cannot be any doubt or dispute that even a letter sent
by ordinary post carries a presumption.
42. However, it furthermore appears that the procedure of sending
letters under certificate of posting having been misused, the Courts
and particularly the Supreme Court in State of Maharashtra (supra)
took cognizance thereof.
43. Each case therefore, has to be considered on its merits.
44. Sofar as service of notice under Clause 4.1 of the
Regulations is concerned.
45. RW-1 Mr.K. Razza in his deposition stated as under :-
“Attention of the witness is drawn to page no. 75 to
80 of the paper book
Q: Whether this letter sent by you personally?
A: Yes. I have sent this letter.
Q: Whether you have mentioned any outstanding
amount in the said letter?
A: No.
Q: Whether you have any proof/acknowledgement
that this letter has been received by the Petitioner?
A: No.” Page 20 of 29
46. However, recently in Samittri Devi v. Sampuran Singh, (2011)
3 SCC 556, the Supreme Court of India held as under :-
“24. The High Court has held that there is nothing on
record to suggest that Respondent 1 herein had, in
fact, been served with the notice dated 8-4-1987 and
thereby reversed the finding rendered by the first
appellate court. It is material to note in this behalf
that it was canvassed by Respondent 1 before the first
appellate court that a certificate of posting is very
easy to procure and it does not inspire confidence.
The Additional District Judge observed that there was
no dispute with this proposition of law, but there was
no such averment or even allegation against Appellant
1 herein, that she had procured the certificate of
posting nor was there any such pleading to that effect.
It is on this background that the first appellate court
has drawn the inference that the notice must be
deemed to have been served within the period of five
days thereafter i.e. before 13-4-1987, the date on
which Respondent 1 herein entered into an agreement
to purchase the suit property. It is also material to
note that the appellant’s premises are situated on
College Road, Pathankot and so also the residence of
the first Respondent where the notice was sent.
Therefore, there was nothing wrong in drawing the
inference which was permissible under Section 114 of
the Evidence Act that such notice must have been
duly served in the normal course of business before
13-4-1987.
25. We may fruitfully refer to a few judgments laying
down the propositions relating to service of notice. To
begin with, we may note two judgments in the context
of the notice to quit, sent to the tenants under Section
106 of the Transfer of Property Act, 1882, though
both the judgments are concerning the notices sent by
registered post. Firstly, the judgment in Harihar
Banerji v. Ramsashi Roy wherein the Privy Council
quoted with approval the following observations in
Gresham House Estate Co. v. Rossa Grande Gold Page 21 of 29
Mining Co. to the following effect: (Harihar case, IA
pp. 231-32
“… if a letter properly directed, containing a
notice to quit, is proved to have been put into
the post office, it is presumed that the letter
reached its destination at the proper time
according to the regular course of business of
the post office, and was received by the
person to whom it was addressed. That
presumption would appear to Their Lordships
to apply with still greater force to letters
which the sender has taken the precaution to
register, and is not rebutted, but
strengthened, by the fact that a receipt for
the letter is produced signed on behalf of the
addressee by some person other than the
addressee himself.””
47. In this case, as noticed heretobefore, the Petitioner itself has
obtained a positive statement from Mr.K. Razza that he had sent the
letter personally. If that be so, there is some material on record
to prove that the notice under Clause 4.1 was tendered to the Postal
Authorities.
48. Moreover, in this case, it appears that the Respondent had
sent other communications to the Petitioner also under certificate of
posting. Page 22 of 29
49. We, therefore, are of the opinion that in this case some
presumption may be drawn in terms of Section 114 of the Indian
Evidence Act as well as Section 27 of the General Clauses Act.
50. There cannot be any doubt or dispute that service of notice
under Clause 4.1 and publication of public notices in terms of Clause
4.3 of the Regulations is imperative in character.
51. It was so held in Silverline Entertainment vs. ESPN Software
India Pvt. Ltd. Petition No.114 (C)/2010 disposed of on 2.2.2011, in
the following terms :-
“ A bare perusal of the Clause 4.1 of the Regulations
would clearly show that service of notice thereunder is
imperative in character. A contract by and between
the parties in regard to the supply of signal of
channels would indisputably be governed by the
Regulations. If the Regulations, for one reason or the
other provide for service of notice of three weeks,
there cannot be any doubt, whatsoever, that the same
is mandatory. More significantly, it is couched in
negative language.”
52. Keeping in view the aforementioned legal provisions, we may
notice Clauses 4.1 and 4.3 of the Regulations, which read as under:
“4. Disconnection of TV channel signals
4.1 No broadcaster or multi system operator shall
disconnect the TV channel signals to a distributor of Page 23 of 29
TV channels without giving three weeks‟ notice to the
distributor clearly giving the reasons for the proposed
action.
Provided that a notice would also be required before
disconnection of signals to a distributor of TV channels
if there was an agreement [a written agreement],
permitting the distribution of the broadcasting service,
which has expired due to efflux of time.
Provided further that no notice would be required if
there is no [written agreement], permitting the
distribution of the signals.
4.3 A broadcaster/ multi system operator/ distributor
of TV channels shall inform the consumers about such
dispute to enable them to protect their interests.
Accordingly, the notice to disconnect signals shall also
be given in two local newspapers out of which at least
one notice shall be given in local language in a
newspaper which is published in the local language, in
case the distributor of TV channels is operating in one
district and in two national newspapers in case the
distributor of TV channels is providing services in
more than one district. The period of three weeks
mentioned in sub-clauses 4.1 and 4.2 of this
regulation shall start from the date of publication of
the notice in the newspapers or the date of service of
the notice on the service provider, whichever is later.”
53. Bare perusal of Clause 4.1 of the Regulations and the proviso
appended thereto would clearly go to show that no notice would be
required to be issued if a written agreement permitting distribution
of signals has not been entered into.
54. Apart from the facts in the case a written agreement has not
been proved, admittedly, the Petitioner was not, according to the
Respondent, permitted to transmit signals in the area of Indira Page 24 of 29
Nagar. A public notice is required to be issued provided there is a
dispute between the parties. Such a notice is necessary only for the
purpose of protecting the interest of the consumers. How, such
public notice could be published is provided for in the said provision.
55. By reason of the aforementioned notice dated 9.2.2011, the
agreement was terminated. It is not necessary, in our opinion, to
take into consideration the fact such termination was to take effect
after two days in view of the fact that the same admittedly has not
been given effect to for a long time.
56. Contention of the Petitioner that there are circumstantial
evidence to show that a new agreement had been entered into by
the parties in December, 2010 so as to include transmission of
signals by the Respondent in the area of Indira Nagar is concerned,
may now be considered.
57. It is accepted that apart from the circumstantial evidence,
namely, the fact that 7 out of 16 channels had gone out of the
bouquet of the Respondent and two new channels had come in, no
other material has been brought on record in this behalf. Page 25 of 29
58. Respondent in its reply filed on 8.2.2011 has specifically
contended that the subscription fee was increased due to
introduction of the two channels of Neo Group, in the following
terms:
“… It is submitted that the agreed increase in the
subscription fee was on account of the inclusion of the
“neo group of channels” in the bouquet of channels of
the Respondent. It is further submitted that the area
of operation was agreed to have been restricted to the
area of operation agreed vide the written Agreement
between the parties.”
59. Respondent‟s witness in his deposition also stated:-
“Q: What was the reason for the said increase of the
subscription amount?
A: The one and only reason was the inclusion of Neo
Sports and Neo Cricket.
Q: Whether any negotiation took place between the
Petitioner and Respondent before this increase in the
subscription fee?
A: Yes. As per the TRAI guidelines we had informed
the Petitioner about the inclusion of Neo Group of
channels and thereafter the Petitioner had given his
consent to run Neo channels.
Q: Who participated in the negotiations?
A: Mr. Jeevan Khanna, Mr. Anil Singh and Myself.
I do not remember the date of meeting however; it
was around September -October, 2010.
No minutes of meeting were recorded.
Q: At the time of the meeting did the Petitioner
provide you with the latest SLR?
A: No. Page 26 of 29
Q: How has the Respondent calculated the increase
regarding the subscription amount for Neo Group of
channels charged from the Petitioner?
A: There has been increase in the bouquet rate after
the inclusion of Neo Channels so the entire calculation
is done by finance deptt. and the calculation can be
provided on the next date of hearing.
(The witness is requested to provide the calculation
on the next date of hearing)”
60. In view of the fact that the witness was called upon to provide
for detailed calculations causing increase in the subscription fee, the
Respondent has filed a large number of documents including a chart
showing as under :-
“N12492- LUCKNOW 9 CABLE NETWORK PRIVATE LIMITED
As Per system
B1 B2 B3 Total Old MF
With Viacom 58.82 58.80 21.40 139.02
Post Viacom 58.82 46.93 – 105.75
Discount due -23.93% 380,745 -91119.16 289,626
to rate change
As per agreement (Pending for regularisation)
B1 B2 B3 Total New MF
Before NEO 58.82 46.93 – 105.75
Post NEO 58.82 46.93 65.00 170.75 467,689 1.61 467,646
61.47%”
61. Mr.Vikram Singh would urge that the said documents have
been filed after cross examination of the Petitioner‟s witness. It is Page 27 of 29
so, but the Respondent furnished the said documents only on
having been called upon by the Petitioner‟s counsel to do so.
Inspection of the said document has also been given to the
Petitioner.
62. In the event the Petitioner wanted to further cross-examine
the said witness or recall PW-1 in regard thereto, it was at liberty
to do so. It, however, did not make any prayer in that regard.
Petitioner was granted inspection of the said document. In that
view of the matter the provision of Section 163 of the Indian
Evidence Act shall be attracted.
63. Moreover, in this case this Tribunal is inter alia concerned with
the question as to whether the area of Indira Nagar was the subject
matter of agreement.
64. The only circumstantial evidence on which Mr.Vikram Singh
relies upon, in our opinion, would not justify drawing of an
interference that the said area was included; the parties having
arrived at agreement with regard thereto. Moreover, as contended
by Mr.Mishra, the Respondent in this petition is not concerned with
the recovery of the amount of outstanding. Page 28 of 29
65. There cannot be any doubt or dispute that the Petitioner must
restitute the benefit, it received by way of supply of signals of the
channels from the Respondent of which it is the Content Aggregator
in terms of the interim order. If the area Indira Nagar did not form
part of the agreement, the Petitioner must restore the benefit in
relation thereto to the Respondent. We, however, in view of the
submissions of Mr.Mishra need not go into the question of quantum
thereof.
66. Sofar as question of balancing the equities between the parties
is concerned, in the facts and circumstances of the case, the same
does not arise.
67. Petitioner is not entitled to any equity. It having not entered
into any agreement in respect of the area of Indira Nagar, it cannot
be permitted by reason of a judicial fiat to continue to operate in the
said area without any agreement in that behalf. It having resorted
to unauthorized cable casting has made itself liable for
discontinuance of supply of signals at the hands of the Respondent.
Respondent cannot be deprived of such a right to which it is
otherwise entitled to under the Regulations. Page 29 of 29
68. Liberty is granted to the Respondent to file an appropriate
petition with regard to realization of its dues.
69. For the reasons aforementioned, there is no merit in this
petition. It is, accordingly, dismissed with costs and with the
aforementioned observations.
70. Advocate‟ s fee is assessed at Rs.25,000/-.
(S.B. Sinha)
Chairperson
(P.K. Rastogi)
Member
May 2, 2012
`ns’

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