TMI Blog2006 (11) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... by TDSAT, by way of an interim measure, the members of Appellants - Hotel & Restuarant Association and those members of Hotel Association who are taking supply through cable operators shall pay in terms of the Order dated 7-3-2006 but the same shall be subject to the ultimate order that may be passed by TDSAT. All other informations, if any, as directed by TDSAT, shall be furnished. TRAI to carry out the processes for framing the tariff. While doing so, it must exercise its jurisdiction under Section 11 of the Act independently and not relying on or on the basis of any observation made by the TDSAT to this effect. It goes without saying that all the procedures required for framing the said tariff shall be complied with.In the event TRAI frames tariffs, the members of Appellants -Associations would be entitled to prefer appeals there against. All contentions in that behalf are left open. - Civil Appeal No. 2061 of 2006 with Civil Appeal No. 2247 of 2006 - - - Dated:- 24-11-2006 - S.B. Sinha and Markandey Katju, JJ. Shri Arun Jaitely, K.K. Venugopal, Sr. Advocates, P.H. Parekh, Sameer Parekh, S.R. Kumar, Ms. S. Sharma, Ms. Rukhmini (for M/s. P.H. Parekh Co.), Rishi Agrawa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption by multiple subscribers; 4. Chapter II of the 1995 Act provides for cable television network to be operated only upon registration thereof. Section 4A of the 1995 Act provides for transmission of programmes through addressable system. Some regulations in regard to the operation of cable operators are provided for in the 1995 Act. Sub-section (9) of Section 4A which is relevant for our purpose reads as under : (9) Every cable operator shall submit a report to the Central Government in the prescribed form and manner containing the information regarding -- (i) the number of total subscribers; (ii) subscription rates; (iii) number of subscribers receiving programmes transmitted in basic service tier or particular programme or set of programmes transmitted on pay channel, in respect of cable services provided by such cable operator through a cable television network, and such report shall be submitted periodically at such intervals as may be prescribed and shall also contain the rate of amount, if any, payable by the cable operator to any broadcaster. 5. In the year 1997, the Telecom Regulatory Authority of India Act, 1997 (for short the TRAI Act ) was enacted wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. Definitions of broadcaster , broadcasting services , cable operator , cable service and cable television network were provided therein which are as under : (a) broadcaster means any person including an individual, group of persons, public or body corporate, firm or any organisation or body who/which is providing broadcasting service and includes his authorised distribution agencies ; (b) broadcasting services means the dissemination of any form of communication like signs, signals, writing, pictures, images and sounds of all kinds by transmission of electro magnetic waves through space or through cables intended to be received by the general public either directly or indirectly and all its grammatical variations and cognate expressions shall be construed accordingly ; (c) cable operator means any person who provides cable service through a cable television network or otherwise controls or is responsible for the management and operation of a cable television network; (d) cable service means the transmission by cables of programmes including re-transmission by cables of any broadcast television signals; (e) cable television network means any system c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nounced an increase of 7% over the rates prevalent on 26-12-2003 (ceiling rate) would be permitted on the ground of inflation. Appellants - Hotel Associations do not dispute the applicability thereof. 13. In view of a purported arbitrary increase in the rates in regard to services to the hotels, Appellants - Hotel Associations sought for intervention of TRAI so as to enable them to guide their members in regard to renewal of contracts, for continuity of supply of feed by their respective television channel broadcasters stating : The proposed increase in the rates demanded by the Broadcasters is completely arbitrary and without any basis or justification. It is a blatant manifestation of their monopolistic position by the Broadcasters, who have formed a cartel. It tantamounts to exploitation of hotels, leaving them no choice other than to comply with the unilateral increase in rates by 30th March, 2005 failing which their channels will be deactivated. It will be appreciated that viewing television channels in hotels is an important guest facility for tourists and international traveler, staying in hotels which provide facilities and services of comparable nature of standards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able by (a) Cable subscribers to cable operator; (b) Cable operators to multi service operators/broadcasters (including their authorized distribution agencies); and (c) Multi service operators to broadcasters (including their authorized distribution agencies). In the petition before us we find that the commercial relationship is between the members of the petitioner associations (viz., hotels, restaurants etc.) on the one hand and either cable operators or broadcasters on the other. We have already concluded that the members of the petitioner associations cannot be regarded as subscribers or consumers. As such we are of the view that the above tariff notification of the TRAI would not be applicable. It seems that TRAI has found it necessary to fix the tariff for domestic purpose. We think the Regulator should also consider whether it is necessary or not to fix the tariff for commercial purposes in order to bring about greater degree of clarity and to avoid any conflicts and disputes arising in this regard. 37. In view of the above, we are of the opinion that the respondents are well within their rights to demand the members of the petitioner associations to enter into agreements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants directing them to disclose the names of the cable operators, they having failed to do so, are not entitled to any equitable relief. 21. Two questions of seminal importance arise for consideration in these appeals, viz.: (i) Whether the members of Appellants - Associations are consumers and, thus, were entitled to invoke the jurisdiction of TDSAT in terms of Section 14 of TRAI Act? (ii) Whether the Tariff Orders issued by TRAI on 15-1-2004 and 1-10-2004 are inapplicable to members of Appellants - Associations, i.e., hotels on the ground that those are commercial establishments? 22. TDSAT in its impugned judgment opined that hotels are not consumers or subscribers. It, however, observed that the members of the hotels associations are de facto MSOs but being not registered do not enjoy the legal status thereof. 23. We may, before embarking upon the legal issues, notice the findings of TDSAT which are as under : (i) The members of Appellants - Associations are not subscribers as contemplated under the 1995 Act. (ii) Each room of the hotels/restaurants can be called as a subscriber. (iii) The management of the hotels cannot be termed as subscribers. Similarl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another, appellate. Exercise of its original jurisdiction is an adjudicatory function whereas its appellate function is to hear appeal(s) against an order of TRAI which may or may not essentially be an adjudicatory one. 28. We have noticed hereinbefore that the members of Associations take TV signals either from Respondents - Broadcasters under their respective contracts or agreements or through cable operators. Whereas in the former case, there exists a privity of contract between the broadcasters and the owners of the hotels, the owners of the hotels admittedly would not come within the purview of definition of MSOs. The owners of the hotels take TV signals for their customers/guests. While doing so, they inter alia provide services to their customers. An owner of a hotel provides various amenities to its customers such as beds, meals, fans, television, etc. Making a provision for extending such facilities or amenities to the boarders would not constitute a sale by an owner to a guest. The owners of the hotels take TV signals from the broadcasters in the same manner as they take supply of electrical energy from the licensees. A guest may use an electrical appliance. The same w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is a transaction which essentially involves work or service, and if the launderyman stitches a button to a garment which has fallen off, there is no sale of the button or the thread. A number of such cases involving incidental uses of materials can be cited, none of which can be said to involve a sale as part of the main transaction. 30. Supply of food to non-resident was held not to be a sale in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1978) 4 SCC 36]. An endeavour was made to get the said decision reviewed but this Court in M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167] rejected the said contention. 31. It is one thing to say that TDSAT shall not exercise its original jurisdiction in respect of a matter covered by the 1986 Act but it is another thing to say that the members of the Associations are not consumers at all. Provisions of the 1986 Act have been referred to for excluding the application under Clause (a) of Section 14 of TRAI Act. While the jurisdiction is sought to be taken away, a strict construction thereof is essential. What is excluded is a complaint of an individual consumer and not a group of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f rates for subscribers but it is not in dispute that commercial consumers have not been taken out of the purview of TRAI Act. It may be that in several other sectors as, for example, electricity or water, different tariffs exist for domestic consumers or commercial consumers but it is beyond any cavil that the tariff of the said essential commodities are fixed under statutes. So long, TRAI does not itself make any distinction between consumers and consumers and does not fix different tariffs, the question that a category of users being commercial users/subscribers being identified so as to exclude the applicability of TRAI Act does not and cannot arise. The Tariff Orders of 2004 did not define the words cable subscribers and, thus, no distinction was expressly provided between ordinary cable consumer and commercial cable consumer. 36. It is one thing to say that TRAI recognises the need for making such a distinction probably pursuant to or in furtherance of the observations made by TDSAT but therefor a final decision is yet to be taken. The notification dated 7-3-2006 has been issued as an interim measure. By reason of the said notification, broadcasters have been injuncted fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ali v. Deputy Commissioner of Police, Bombay and another [AIR 1956 SC 559], a Constitution Bench of this Court stated : ...It has been repeatedly said by this Court that it is not safe to pronounce on the provisions of one Act with reference to decisions dealing with other Acts which may not be in pari materia. 43. In M/s. MSCO. Pvt. Ltd. v. Union of India and Others [(1985) 1 SCC 51], this Court held : 4. The expression industry has many meanings. It means skill , ingenuity , dexterity , diligence , systematic work or labour , habitual employment in the productive arts , manufacturing establishment ect. But while construing a word which occurs in a statute or a statutory instrument in the absence of any definition in that very document it must be given the same meaning which it receives in ordinary parlance or understood in the sense in which people conversant with the subject matter of the statute or statutory instrument understand it. It is hazardous to interpret a word in accordance with its definition in another statute or statutory instrument and more so when such statute or statutory instrument is not dealing with any cognate subject... 44. In Maheshwari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art V contained a very large number of various components of a printing press corresponding to Item No. 72(2) of the Indian Tariff Act which consolidates the law relating to customs duties. This Court opined that although dictionary meanings are helpful in understanding the general sense of the word but it cannot control a situation where the scheme of the statutes or the instrument considered as a whole clearly conveys a somewhat different shade of meaning. In that fact situation, it was opined : ... It is not always a safe way to construe a statute or a contract by dividing it by a process of etymological dissection and after separating words from their context to give each word some particular definition given by lexicographers and then to reconstruct the instrument upon the basis of those definitions. What particular meaning should be attached to words and phrases in a given instrument is usually to be gathered from the context, the nature of the subject matter, the purpose or the intention of the author and the effect of giving to them one or the other permissible meaning on the object to be achieved. Words are after all used merely as a vehicle to convey the idea of the sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52. It is also well settled that when a power is required to be exercised in a particular manner, the same has to be exercised in that manner or not at all. TDSAT having not exercised its appellate jurisdiction, in our opinion, neither could have issued any direction nor TRAI could abide thereby. [See Mohinder Singh Gill Anr. v. The Chief Election Commissioner, New Delhi Ors., AIR 1978 SC 851, Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16, Hindustan Petroleum Corporation Ltd. v. Darius Shapur, Chennai, (2005) 7 SCC 627 and R.S. Garg v. State of U.P. and Others, 2006 (7) SCALE 405]. 53. We are, however, sure that TRAI while exercising its jurisdiction under Sub-section (2) of Section 11 of TRAI Act shall proceed to exercise its jurisdiction without in any way being influenced by the said observations. It must apply its mind independently. 54. It may be true that TRAI in its Tariff Order dated 7-3-2006 sought to define ordinary cable subscribers and cable subscribers separately but the same is yet to be adopted finally. It is not conclusive. It must while laying down new tariff take into consideration all the pros and cons of the matter. It must apply its mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. 60. It is now also not in dispute, as would appear from the Explanatory Memorandum issued by TRAI, that the interim protection has been extended also to commercial consumers. 61. A contention has been raised that the freeze/ceiling order did not apply to the new channels or in a case the free channels are converted into pay channels. However, TDSAT did not go into the said question. 62. Having regard to the order proposed to be passed, we do not intend to also determine the said question for the first time. We may notice that, except a few, the members of Hotel Associations have entered into contract directly with the broadcasters. Mr. Venugopal agrees that all those owners of the hotel who had set up Head End shall continue to pay the amount which was payable as on 1-10-2004. If there are arrears, the same must be cleared within eight weeks from date. So far as those who are taking signals through cable operators, keeping in view the fact that there are certain disputed questions of fact and furthermore in view of the fact that they have not disclosed the name of the cable operators except 314 hotels and some restaurants, they may furnish the complete list. 63. We, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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