Digi Cable Network (India) Pvt. Ltd. vs Union Of India

CIVIL APPEAL No.120 OF 2019 (Arising out of S.L.P.(C) No. 33244 of 2015)

Digi Cable Network (India) Pvt. Ltd. ….Appellant(s)

VERSUS

Union of India & Ors. ….Respondent(s)

WITH

CIVIL APPEAL NO.121 OF 2019 (Arising out of S.L.P.(C) No. 33411 of 2015)

SCOD 18 Networking Pvt. Ltd. ….Appellant(s)

VERSUS

Signature Not Verified Ministry of Information & Broadcasting & Ors. ….Respondent(s) Digitally signed by ANITA MALHOTRA Date: 2019.01.07 17:40:09 IST Reason:

1 JUDGMENT

Abhay Manohar Sapre, J.

IN CIVIL APPEAL No.120 OF 2019 (Arising out of S.L.P.(C) No. 33244 of 2015)

1. Leave granted.

2. This appeal is directed against the final

judgment and order dated 30.10.2015 of the High

Court of Judicature at Bombay in Writ Petition

No.58 of 2015 whereby the Division Bench of the

High Court dismissed the writ petition filed by the

appellant herein.

3. The controversy involved in this appeal lies in

a narrow compass as would be clear from the facts

stated hereinbelow.

4. By letter dated 12.06.2012 (Annexure P­2) the

appellant was granted permission by the

Government of India under Rule 11C of the Cable

2 Television Network (Amendment) Rules, 2012

(hereinafter referred to as “the Rules”) for operating

as Multi System Operator (MSO) in the Digital

Addressable System (DAS) notified areas vide

notification dated 11.11.2011.

5. This permission was, however, cancelled by

the Government of India vide order dated

03.09.2014 on the ground that the Ministry of

Home Affairs has denied issuance of “security

clearance” to the appellant. In other words, since

the Ministry of Home Affairs did not grant security

clearance to the appellant, the permission initially

granted to the appellant vide letter dated

12.06.2012 was cancelled.

6. Challenging the order of cancellation of grant

of permission, the appellant filed writ petition before

the High Court of Bombay at Mumbai. By impugned

order, the High Court dismissed the writ petition

3 and upheld the order of cancellation as being just,

legal and proper which has given rise to filing of the

present appeal by way of special leave in this Court

by the unsuccessful writ petitioner.

7. So, the short question involved in this appeal

is whether the High Court was justified in

dismissing the appellant's writ petition and, in

consequence, was justified in upholding the order

dated 03.09.2014 cancelling the permission which

was granted to the appellant vide letter dated

12.06.2012.

8. Heard Mr. Jay Savla, learned counsel for the

appellant and Ms. Pinky Anand, learned ASG for the

respondents.

9. It may be mentioned here that Ms. Pinky

Anand, learned Additional Solicitor General

appearing for the Union of India­respondent filed

the copy of the reasons in a sealed cover which was

4 made basis to deny security clearance to the

appellant and which led to cancellation/withdrawal

of permission granted to the appellant. The

document filed is taken on record for perusal.

10. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

find no merit in this appeal.

11. In our considered opinion, the impugned order

of cancellation was passed in conformity with the

requirements of Rule 11C of the Rules and hence it

was rightly upheld by the High Court in impugned

order.

12. Rule 11C was inserted in the Rules with effect

from 28.04.2012. Rule 11C(1) reads as under:

“11C. (1) Registration as multi­system operator­(1) On being satisfied that the applicant fulfils the eligibility criteria specified under rule 11B and the requirements of rule 11A, the registering authority shall, subject to the terms and conditions specified in rule 11D and the security clearance

5 from the Central Government, issue certificate of registration.”

13. It is clear from mere reading of the Rule 11C(1)

that grant of permission is subject to issue of

security clearance from the Central Government to

the applicant (appellant in this case).

14. In this case, admittedly the appellant failed to

obtain the security clearance as provided under

Rule 11C of the Rules. It was a mandatory

requirement as provided under Rule 11C of the

Rules. Since the grant of permission was subject to

obtaining of the security clearance from the

concerned Ministry, the competent authority was

justified in cancelling the conditional permission for

want of security clearance.

15. Learned counsel for the appellant, however,

argued that the appellant was not afforded any

opportunity of hearing before cancelling the

6 permission and, therefore, the impugned

cancellation order is rendered bad in law having

been passed without following the principle of

natural justice and fair play. We find no merit in

this submission.

16. In somewhat similar circumstances, this Court

while repelling this submission laid down the

following principles of law in the case of Ex­

Armymen’s Protection Services Private Limited

vs. Union of India And Others (2014) 5 SCC 409

in para 16 and 17 which read as under:

“16. What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of the State or not. It should be left to the executive. To quote Lord Hoffman in Secy. of State for Home Deptt. v. Rehman: (AC p. 192C) “… [in the matter] of national security is not a question of law. It is a matter of judgment and policy. Under the Constitution of the United Kingdom and most other countries, decisions as to whether something

7 is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.”

17. Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice. In such cases, it is the duty of the court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Depending on the facts of the particular case, it will however be open to the court to satisfy itself whether there were justifiable facts, and in that regard, the court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party.”

17. Having perused the note filed by the Union of

India, which resulted in cancellation of permission,

we are of the considered opinion that in the facts of

this case, the appellant was not entitled to claim

any prior notice before passing of the cancellation

order in question.

18. In other words, we are of the view that the

principles of natural justice were not violated in this

8 case in the light of the law laid down by this Court

in the case of Ex­Armymen’s Protection Services

Private Limited (supra) inasmuch as the appellant

was not entitled to claim any prior notice before

cancellation of permission.

19. In view of the foregoing discussion, the appeal

is found to be devoid of any merit. It is accordingly

dismissed.

20. However, the appellant would be at liberty to

apply for grant of fresh permission in accordance

with law.

IN CIVIL APPEAL NO.121 OF 2019 (Arising out of S.L.P.(C) No. 33411 of 2015)

In the light of our detailed order passed in Civil

Appeal No. ……………of 2019 @ SLP (C) No. 33244

of 2015, this appeal is also dismissed.

9

2. However, the appellant would be at liberty to

apply for grant of fresh permission in accordance

with law.

………...................................J. [ABHAY MANOHAR SAPRE]

………..................................J. [INDU MALHOTRA]

New Delhi;

January 07, 2019.

10