M/s. Digicable Network India Pvt. Ltd. vs Union of India and Others

Shri Siddiqui submits that he has filed reply in W.P. No. 5323/2013 and is adopting the return filed in the same case. He can do this by filing an appropriate application alongwith return and supplying copy of it to the petitioner. This be done within a period of one week from today. I.A. No. 6482/2013 filed by intervener M/s Siti Cable Network Ltd. for vacation of ad interim writ.

Parties are heard on this application.

Learned counsel for petitioner submits that Union of India has not filed return till date, so till filing of the return, ad interim writ issued earlier may be continued. Learned counsel appearing for the intervener submitted that the question for broadcasting by digital signal and fixing of Set Top Box price have been examined by various High Courts of the country namely High Court of Bombay in Writ Petition No. 2610/2012-Bhawani Rajesh Cable and Digitech Services Pvt. Ltd. Vs. Union of India on 31.10.2012, Allahabad High Court in Case No. 2446/2012 on 21.3.2013, Karnataka High Court in Writ Petition Nos. 14946-14954/2013 on 16.4.2013 and Gujarat High Court in Special Civil Application No. 3582/2013 on 16.4.2013, in which all the High Courts have not granted any interim order for conversion of the analog signal to digital signal. It is prayed that ad interim writ issued on 15.4.2013 may be vacated or it may not be continued further.

Shri Brian D''Silva, learned counsel appearing for petitioner submitted that against the order dated 15.4.2013 in this case, Indian Broadcasting Foundation has filed an SLP before the Apex Court bearing SLP (Civil) No. 9531/2013 which has been directed to be listed on 8.7.2013, so hearing of this case may be adjourned awaiting verdict from the Apex Court.

From the perusal of the papers filed by Shri Brian D''Silva, it appears that there is no interim order in the matter staying proceedings or the order passed by this Court and the case has been simply listed on 8.7.2013. There is no embargo for hearing of the matter or for considering the matter on the prayer of the petitioner for continuation of ad interim writ or prayer of the intervener for vacating ad interim writ. However, it is submitted by Shri Brian D''Silva that High Court Andhra Pradesh in PILSR No. 52394/2013 has issued interim order staying implementation of the order of the Central Government for conversion of the analog signal into digital signal.

We have considered the contentions raised in the petition. The main contention of the petitioner is that digital Set Top Boxes are not available in the market, so it is not possible for the petitioner or other cable operators to install Set Top Box for digital signal. It is submitted that the order passed by the Union of India may be stayed till the availability of the set top box.

Shri A.K. Jain, leaned counsel for petitioner in W.P. No. 5516/2013 submitted that the Central Government has not fixed the price of the set top box and the dealers are charging exaggerate price for the same. It is submitted that the price should not be more than Rs. 500/- while the Chinese set top box is available for Rs. 250/-. In reply to it, Shri R.S. Siddiqui submitted that the TRI have informed the Union of India that the price of set top box should be between Rs. 999/- and Rs. 1300/- subject to quality of the set top box.

We have considered the contentions of the petitioner. The matter has been considered by the Bombay High Court in detail by order dated 31.10.2012, by which the Division Bench of Bombay High Court considering the question held thus:-

By the Cable Television Networks (Regulation) Amendment Act 2011 Section 4A came to be substituted in the principal Act in the following terms:

(1) Where the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, make it obligatory for every cable operator to transmit or re-transmit programmes of any channel in an encrypted form through a digital addressable system with effect from such date as may be specified in the notification and different dates may be specified for different States, cities, towns or areas, as the case may be:

Provided that the date specified in the notification shall not be earlier than six months from the date of issue of such notification to enable the cable operators in different States, cities, towns or areas to install the equipment required for the purposes of this sub-section.

In pursuance of the amendment by a notification dated 11 November 2011 a phase-wise programme was directed to be observed and insofar as the first phase is concerned 30 June 2012 was stipulated as the date by which every cable operator was required to transmit programmes through a digital addressable system in relation to four territories viz. (I) Municipal Council of Greater Mumbai area; (ii) National Capital Territory of Delhi; (iii) Kolkata Metropolitan area and (iv) Chennai Metropolitan area. In a petition filed before this Court under Article 226 of the Constitution, a Division Bench of this Court was informed on 21 June 2012 by the Union Government that time for implementation of the notification dated 11 November 2011 had been extended by a period of four months from 30 June 2012. On 21 June 2012 a notification was issued extending the date fixed for compliance from 30 June 2012 to 31 October 2012.

Now insofar as the Petitioner is concerned, on 28 June 2012, the Union Ministry of Information and Broadcasting granted permission under Rule 11E of the Cable Television Networks Rules 1994 for operating as a Multi System Operator in the Digital Addressable System in areas which fall inter alia in the notified area of the Municipal Corporation of Greater Mumbai. The Petitioner was therefore clearly on notice of its obligation as an MSO to whom a licence was issued as far back as on 28 June 2012. On 31 August 2012 a notice to show cause was issued to the Petitioner by the Union Ministry of Information and Broadcasting on the ground that in breach of its obligation as a Multi System Operator, the Petitioner had failed to furnish information after 3 August 2012 in regard to the seeding of set top boxes on a weekly basis. This, it was stated, was essential to gauge the preparation to ensure that all consumers would be covered by the necessary technical infrastructure such as the installation of set top boxes. It was stated that though on 26 July 2012 the Petitioner was called upon to provide details, none have been furnished. The Notice therefore proposed to suspend or revoke the registration of the Petitioner under the Cable Television Networks (Regulation) Act 1995. The Petitioner replied on 8 September 2012 stating that it was in the process of installing its digital head end and that the seeding of the set top boxes will begin from 1 September 2012. A further notice was issued to the Petitioner on 16 October 2012 noting that the Petitioner was reporting zero compliance with the obligation to install set top boxes which displayed a serious lack of commitment towards digitization. The Petitioner responded on 19 October 2012 stating that it was ready to now start seeding with the set top boxes. This was clearly in breach of the commitment which the petitioner had made in its letter dated 8 September 2012 to the effect that seeding of the set top boxes would commence from 1 September 2012. The weekly seeding reports which are annexed to the Petition for the weeks ending 7 October 2012 and 14 October 2012 would indicate that even according to the petitioner no set top boxes were installed during the course of those weeks. The weekly seeding report from 21 October 2012 similarly suggests that nill set top boxes were installed during that week. Evidently, therefore, the petitioner has been remiss in complying with its obligations as a Multi System Operator.

These proceedings have been instituted before this Court only on 23 October 2012 virtually towards the end of the deadline stipulated in the notification dated 21 June 2012. The Additional Solicitor General of India has placed on the record a compilation of documents in view of the fact that the time that is now remaining for compliance is to expire on 31 October 2012. We find merit in the contention of the Learned ASG that the Petition suffers from a serious suppression of material facts. According to the submission which has been urged on behalf of the Union Government, the Petitioner has deliberately suppressed the extent of its cable connections with a view to avoid compliance with its obligations under the law. The material which has been placed on the record is sufficient to indicate that the Petitioner, despite receiving a licence on 28 June 2012, has failed to seriously reflect a bonafide compliance with its obligations. The Learned ASG has relied upon a press note dated 30 October 2012 issued by the Union Government in the Ministry of Information and Broadcasting which is to the following effect:

Digitization reaches 93% in Metro cities. Ministry monitors digital switchover preparedness.

Ministry of Information and Broadcasting has released data about achievement of Digitization in the 4 metro cities as on 30th October 2012. The data shows that in Delhi the Cable TV digitization has touched 92% and with DTH the percentage of digitization has gone upto 95%. For Mumbai the percentage of digitization is 100% whereas for Kolkata Cable TV digitization alone has crossed 82%, along with DTH the percentage of digitization goes upto 85%. In Chennai the Cable TV digitization has reached 62% and with DTH it goes upto 86%. The overall percentage of achievement in 4 metro cities, therefore, is 89% as far as the Cable TV is concerned and with DTH, the percentage goes upto 93%.

Ministry of Information and Broadcasting has sent teams comprising of Technical Experts to visit various Headends of National level Multi System Operators (MSOs) as well as independent MSOs in the four metro cities of Kolkata, Delhi, Mumbai and Chennai. The Technical teams will collect on site data regarding preparedness of MSOs for analogue switch over to DAS i.e., Digital Addressable System. The teams would also look at details of Subscriber Management System and Call Centre facility etc. The teams would also look at the system available with the MSOs to ensure that no analogue signals are fed in the Cable networks after the 31st October 2012 deadline.

Ministry of Information and Broadcasting had launched an aggressive public awareness campaign for creating awareness among the masses about the need for Set Top Box for their Cable TV system. In addition to video and audio spots on several television channels, Ministry had also embarked on a very aggressive SMS campaign. Six round of SMS Campaign have already been undertaken reaching out to millions of subscribers in the 4 metro cities. As a further step towards digitization, Ministry has also been exhibiting slides in cinema theaters. Hoardings have also been placed at bus shelters and toilet blocks in the city of Delhi.

A review of the daily installation of STBs shows that the rate of installation has touched an all time high. On 29th October, 2012 about 88,000 set top boxes were installed out of which more than 61000 boxes were installed in Delhi alone.

The Control Room set up by the Ministry has been receiving on a average around 400 calls per day since 15th October, 2012. Ministry has positioned MSO representatives also to sit in the Control Room to reply to the queries of people from 8.00 am to 10.00 pm every day. This has provided a platform for common people to address their concerns/queries on the digitization process.

Digitization would usher in a regime of addressability and transparency, bringing a host of exciting benefits to the consumers. Digitization of the Cable TV Network would open up several opportunities for the consumer to get access to Movies and Games on Demand as well as internet.

Learned ASG has also submitted a chart in relation to the seeding of set top boxes in Mumbai, Delhi, Kolkata and Chennai, the status being reflected as of 29 October 2012. Since the present Petition relates to Mumbai alone we are extracting from the chart which has been placed on the record of the Court:

The chart which has been submitted by the Learned ASG would indicate that the seeding of set top boxes in Mumbai has been substantially completed. Moreover, the Court has been informed that set top boxes in sufficient quantity are available and as the press note would indicate sufficient measures have been taken to ensure that no hardship is caused to any consumer who may now desire to install a set top box immediately. In our view, the Union Government has provided sufficient time for compliance. By the first notification dated 11 November 2011 time was granted until 30 June 2012. By the subsequent notification dated 21 June 2012 a further extension of time was granted until 31 October 2012. An intervention application has been filed before this Court by Mr. Virendra Vedprakash Pathak. The annexure to the intervention application would indicate that even according to the intervenors installation has taken place to the extent of 80% to 85%. This figure, as we have noted above, is contested on behalf of the Union Government which has adopted the position that the installation of set top boxes is substantially complete and that in any event a sufficient number of set top boxes is available in order to enable consumers to have access to uninterrupted television coverage. A certain degree of inconvenience is inevitable in the enforcement of any deadline. The new regime which has been put into place by the Union Government is with a view to provide quality service to consumers. The individual business hardship that is faced by a business operator must necessarily give way to the public interest in ensuring that services of a stipulated quality are available to the members of the viewing public. We have been assured by the Learned ASG appearing on behalf of the Union Government that necessary steps have been taken to ensure that the access to television coverage would not be disturbed particularly during the ensuing festival season. Insofar as the Petitioner is concerned, we are of the view that besides a suppression of material fact, the conduct of the Petitioner clearly disentitles it to any relief. We do not find any illegality in the decision of the Union Government. The Petition is accordingly dismissed.

From the perusal of the facts of the present case, we find that the controversy more or less is the same. The Central Government initially announced conversion of analog signal into digital signal on 11.11.2011 and in the first phase, it was directed that in four metro cities, the signal shall be of digital and the last date for change of the signal was 30.6.2012. However, for 38 cities which were taken in second phase, analog signals were directed to be changed into digital signal on or before 31.3.2013 which was extended for further period of 15 days, but thereafter, there is no extension of the time period by any the authorities. However, this Court by order dated 15.4.2013 stayed operation of the order Annexure P/2 restraining the respondents to transmit or re-transmit analog signal and because of this, the analog signals are being transmitted. From the perusal of the aforesaid facts, it appears that sufficient time has been given to the cable operator for providing set top box.

Shri R.K. Verma, learned counsel for intervener Hathway Cable & Datacom Ltd. submitted that the set top boxes sufficient in number are available in the market and that too on a reasonable price.

However, considering the fact that the Central Government had also extended the period till 15.4.2013 and thereafter this Court has allowed further a month''s time till today for facilitating the operators to provide Set Top Box to the consumers, so that digital signal may be provided to the public. We have no reason to extend the aforesaid period and accordingly, the ad interim writ issued by this Court on 15.4.2013 is not continued in the matter and is hereby vacated.

So far as contention of Shri A.K. Jain, learned counsel for petitioner in W.P. No. 5323/2013 that the price of the Set Top Box should not be more than of Rs. 500/- is concerned, we have asked from him specifically that under what provision he is insisting for fixing price of Set Top Box by the Central Government. It is submitted by him that the citizens have a right for entertainment under Article 21 of the Constitution of India and under this Article, he is seeking such instructions, but in the absence of such specific provision, no direction can be issued to fix price of the Set Top Box. Set Top Box is a commodity available in the market. However, the market, seller and consumer can fix the price by negotiations and in this regard no direction is issued.

Be listed for hearing after return of Union of India is received in the month of July, 2013. C.C. as per rules.