TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
DATED 4th
SEPTEMBER, 2009
R.A.No.5
of 2008 & M.A.No.155 of 2008
IN
Tata Sky Limited
Regd.Office. 3rd
Floor,
Panduranj Bhudkar Marg
Worli, Mumbai – 400 025
VERSUS
1.
Union of
Through
Secretary
Ministry
of Information & Broadcasting
A-Wing,
Shastri Bhawan
2.
Telecom Regulatory Authority of
Mahanagar
Door Sanchar Bhawan
Jawahar
Lal Nehru Marg (
BEFORE:
HON’BLE
MR.JUSTICE ARUN KUMAR, CHAIRPERSON
For Petitioner : Mr. Ashwini Kumar, Senior Advocate with
Mr. Gopal Jain,
Advocate and
Mr. Kaushik Mishra,
Advocate
For Respondent (UOI) : Mr. Amarjit Singh Chandioke, Additional
Solicitor General
with
Ms. Sweta Kakkad,
Advocate
Mr. Ravindra Agarwal,
Advocate and
Ms. Varun Pathak,
Advocate
O
R D E R
This is an application for review of
order dated 26th August, 2008 passed by this Tribunal. The review application is accompanied with an
application for condonation of delay which has a prayer that delay in filing
the review application be condoned.
There is delay of 21 days in filing the review application. The learned Additional Solicitor General appearing
for the Union of India has opposed this application for condonation of
delay. As part of his submissions he has
drawn my attention to the following averment contained in the application.
“The applicant/petitioner had to examine
and analyse the order in its overall perspective and sought legal advice on
various aspects including the subject matter of the present review petition as
well as certain aspects which had not been considered in the judgment. The delay occurred is only because of the
time spent in analyzing the legal implications of the judgment/order of the
Hon’ble Tribunal.”
This is
the only justification provided in the application for seeking condonation of
delay in filing the review petition. It
is submitted on behalf of the respondent that the averment is nothing but a
generalization and does not contain any particulars as to how delay was caused and
at which end. Further it has been
brought to my notice that the affidavit filed in support of the condonation of
delay application is itself defective because it is verified “the contents of
the above affidavit affirm para 1 to 2 are true and correct to the best of my
knowledge”. In my view this verification
of an affidavit is not proper as an affidavit is required to be affirmed to the
knowledge of the deponent and not to the best of his knowledge. Thus on both counts that is substance as well
as verification, the application for condonation of delay is liable to be
rejected. I order accordingly.
RA
5 of 2008 and MA 155 of 2008
In view of my order on the application
for condonation of delay these applications are liable to be dismissed. However, since I have heard the learned
counsel for parties on merits of these applications I proceed to decide the
same.
Two points have been argued in support
of these applications by the learned senior counsel for the petitioners. It is submitted that the finding about
inclusion of revenue earned from sale of Set Top Boxes(STBs) for purpose of
calculation of licence fee is not correct because the petitioner does not
manufacture the set top boxes. It is
also submitted that the petitioner does not insist on sale of set top box
whenever there is a request for new connection to petitioner by any consumer. The consumer can purchase a set top box from
anywhere. However, it is not denied that
use of set top box is essential for de encryption of signals.
I have fully dealt with this argument
in my judgment sought to be reviewed. I
do not accept the argument now being raised that Set Top Box can be purchased
from anywhere. Set Top Box has to be
purchased from the petitioner as part of the connection when a consumer seeks it
from the petitioner. Therefore, it is
bundled activity and income therefrom is liable to be included in AGR for
purposes of calculation of licence fees.
The learned ASG appearing for the respondent has drawn my attention to a
website of the petitioner according to which
“Digicard:
the Tata Sky owned card through which the service is rendered when used with the Digicomp.
Digicomp: a satellite receiver
authorized by us to use with our digital conditional
access system, including a PVR.”
and
“10.7 Each
Digicard is compatible with only one Digicomp, and cannot be used on any other Digicomp.”
This
shows only the Digicard of Tata Sky is compatible with Tata Sky Digicomp. Therefore, factually the arguments are not
correct and are rejected.
From the side of petitioner a
projection is being given that petitioner does not directly sell the STBs. It sells them to its distributor who in turn
sells them to the new connection seekers.
A spate account if
maintained. To my mind, this does not
make any difference. The petitioner is a
DTH Operator. Whether it gives
connection through a distributor or directly, that will not make any difference
so long as it is not disputed that without petitioner’s STB, signals cannot be received i.e. STB is an
integral part of the service.
The other point argued before me in
support of the review application was that the petitioner claims benefit of pass
through charges i.e. payment made by it to the broadcaster for obtaining the
content regarding which no finding has allegedly been given in the
judgment. In this behalf it is only to
be pointed out that I have gone through the main petition filed by the
petitioner wherein there the case now being pleaded has not been set up. During the course of hearing I had put it to
the learned counsel for the petitioner about pleadings on this aspect. He was unable to point out anything except
that reliance was placed on a Telecom Regulatory Authority of India (TRAI)
Report of 2004 which is filed as annexure to the main petition. TRAI recommendations are not binding on the
Government. The point was not taken in
the main petition. A review petition under Section 16 of the TRAI
Act has to be decided on principles of Order 47 CPC. It is settled law that in a review petition
the party seeking review cannot bring on record fresh material or make out a
fresh case nor is review a rehearing.
The parameters of review are quite strict. I do not find that a case for review of order
dated 26.8.2009 is made out in the facts and circumstances of the present
case.
The applications are dismissed.
..……….……..J
(Arun
Kumar)
Chairperson