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Judgment
M.A No.113/2023
This application has been preferred by the original petitioner under sections 19 and 20 of the TRAI Act, 1997 mainly for the reason that despite the orders passed by this Tribunal dated 11.4.2023 and 4.5.2023, the same has not yet been complied with by the respondent and, therefore, it is submitted by the counsel for the petitioner that action be initiated against the respondent under Section 19 of Telecom Regulatory Authority of India (TRAI) Act, 1997 to be read with Section 16 thereof to be read with Order 21 Rule 32(5) of CPC to be read with Order 39 Rule (2-A) of CPC and let any responsible officer be appointed by this Tribunal who may inspect the head-end of the respondent and reconnect the signals of the petitioner’s TV Channels in terms of the order passed by this Tribunal dated 11.4.2023, be read with order dated 4.5.2023.
Learned Senior Counsel for the petitioner has also suggested the powers of this Tribunal to get compliance of the order of this Tribunal like a decree and, therefore, not only the powers given under CPC can be utilized, but, TDSAT can set its own methodology for the compliance of the order by the TDSAT and therefore, counsel for the petitioner has suggested that any Auditor empanelled by Telecom Regulatory Authority of India (TRAI) Act, 1997 may also be appointed who are normally carrying out audit of Digital Addressable Systems of the DPO – the respondent.
The counsel for the petitioner has submitted a list of the empanelled Auditor of TRAI from the website of TRAI.
Learned Senior Counsel for the respondent submitted that they have already preferred a writ petition before the Hon’ble Kerala High Court challenging the order of this Tribunal dated 4.5.2023 and E-filing number of the Writ Petition before the Hon’ble Kerala High Court is EF-HCK-2023-039268.
Counsel for the petitioner has also submitted that they have already emailed to the petitioner dated 7.5.2023 which is at Annexure-F to the memo of the M.A No.113/2023 which reflects that the respondent is ready and willing to restore the connection on the condition as mentioned in para-3 and they want minimum one week’s time to comply with the orders.
Having heard the counsel for both the sides and looking to the facts and circumstances of the case, it appears that prima facie, the respondent has violated the orders of this Tribunal. The order dated 4.5.2023 was passed in presence of the counsels for both the sides in the open Court. Therefore, the respondent was aware about the order. Moreover, there is no stay as on today.
We, therefore, direct the respondent to comply with the order dated 4.5.2023 and the reconnection will be given within a period of 24 hours failing which, we hereby appoint Chartered Accountant Mr. Anil Kumar Jain Partner, M/s Borkar & Muzumdar, A1/255-B, Second Floor, Lawrence Road, Near Kendariya Vidhyalaya, Keshav Puram, Delhi-110035, who shall visit the respondent and will inspect the head-end of the respondent and will switch on the signals of the petitioner’s channels in due compliance of our order dated 4.5.2023. The actual expenses of the auditor Mr. Anil Kumar Jain shall be reimbursed and borne by the respondent. The remuneration of the auditor will be finalized later on.
We also make it explicitly clear that if there is any non-cooperation to the aforesaid empanelled Auditor for reconnection of signals, we hereby request the District Superintendent of Police, District Thrissur, Kerala to supply the necessary police force from Pudukkad Police Station, Puddukkad Rural, Thrissur, Kerala-680301 so that the empanelled Auditor of TRAI of this Court may comply with our dated 4.5.2023.
We hereby direct the respondent to deposit Rs.3 Lakhs before the Registrar of this Tribunal by 15.5.2023 by the way of Bank Draft which shall be on account amount subject to the final amount to be paid by the respondent to the Court Commissioner appointed by this Tribunal who is empanelled Auditor appointed by the TRAI.
We also direct the Managing Director of the respondent who has filed an affidavit before this Tribunal namely, Mr. Suresh Kumar PP S/o P.S. Parameswaran to remain personally present on or before next date of hearing at 11:00 AM, if the order passed by this Tribunal dated 4.5.2023 is not complied with.
This matter is adjourned to 16.5.2023.
Dasti service is permitted to the petitioner.