ESWARA COMMUNICATION Vs ZEE ENTERTAINMENT ENTERPRISE LTD

Petitioner is a Multi System Operator having its area of operation in the town of Vijayawada and adjoining areas. Respondent is a broadcaster.

By reason of this petition, the Petitioner has prayed for issuance of a direction upon the Respondent to provide with it the decoders of the Zee Telugu TV channels on equitable and non-discriminatory terms.

2. Petitioner had made a request for supply of the said decoders on or about 22.6.2010. It admittedly has been re-transmitting signals amongst others of a channel known as ‘VISSA’ on a subscription fee of Rs.55,000/- per month, having a subscriber base of 5000 (the rate of the channel being Rs.11/- per subscriber).

Petitioner filed an application for supply of signals of MAA TV and by an order dated 18.7.2011 passed in Petition No. 395 (c) of 2010, this Tribunal directed the said Broadcaster to supply signals of its channels on a subscriber base of 7500.

We may place on record that the rate of MAA TV is Rs.8/- per subscriber.

3. Petitioner’s counsel by an E-mail dated 15.12.2010 addressed to learned counsel of the Respondent stated:- “I am sending the connectivity proposal for the Eswara Communications Vijayawada as follows:- For 1st three months – 2000 (two thousand) For 2nd three months – 5000 (five thousand) For 3rd three months – 7500 (seven thousand five hundred)

For 4th three months – 10000 (ten thousand)”

The said offer was accepted.

4. An application was filed by the Respondent to dispose of this petition on the basis of the aforementioned offer. Petitioner, however, did not agree thereto on the premise that such an offer was made by learned counsel by mistake.

The said counsel was also changed.

Petitioner was permitted to adduce evidence by an order dated 18.4.2011. Pursuant thereto or in furtherance thereof, the parties have adduced oral evidence. It however, appears from the record that on 19.9.2011, the parties met at the Hyderabad office of the Respondent. Minutes of the meeting of the said date has been produced before this Tribunal on 21.9.2011, which reads as under:- ““PRESENT: 1. Mr.Venkatasarathi, Deputy General Manager, on behalf of Media Pro Enterprises India Pvt. Ltd. (on behalf of Zee Turner Limited) and Mr. Raju on behalf of Eswara Cable Network, Vijaywada.

Pursuant to the direction and in compliance of Hon’ble TDSAT Orders, representatives of both parties met at the venue herein to discuss and settle the matter on amicable terms:

During the course of discussions representatives of Media Pro to amicable settle the matter, duly accepted the proposal put by the counsel of Eswara Cable communications before Hon’ble TDSAT & agreed for execution of subscription agreement at the rate of 4500 subscribers for the subject matter of area of operation at Vijaywada with respect to Media Pro’s bouquet of channels.

Representatives of Eswara Cable Network refused to enter into agreement for 4500 subbase for total bouquet of Media Pro channels, opposing their own proposal proposed by their counsel before Hon’ble TDSAT.

Hence the meeting ended without any positive note.

In witness whereof, both parties in pursuant of the above terms and conditions put their signatures respectively.”

5. Mr. Navin Chawla, learned counsel appearing on behalf of the Petitioner, however, submitted that his client did not agree to subscribe all the bouquets but only of bouquet I, II and IV of the Respondent on a subscriber base of 4500.

6. In the aforementioned background, the parties have adduced their respective evidences in the matter. Whereas the Petitioner has examined Shri Yeleswarupa Naga Kanka Jagan Mohan Raju, the proprietor of the Petitioner concern, the Respondent has examined one Mr. Venkatasarathi, DGM working at its Secunderabad office.

7. Mr. Chawla would contend that on perusal of the cross examination of Mr. Venkatasarathi, it would appear that no joint verification was made with regard to the SLRs furnished by Petitioner showing a subscriber base of 1100. It has been submitted that the Petitioner having filed all the relevant documents including the details of its franchisees, the Respondent should be directed to supply IRD boxes for re-transmission of its channels by the Petitioner to its franchisees.

8. Mr. Tejveer Singh Bhatia, learned counsel appearing on behalf of the Respondent, on the other hand, urged that keeping in view the fact that the Petitioner having not supplied all the requisite documents including the Postal Registration Certificate and with its letter of request, the details of the direct connectivities as also the SLRs, this petition was premature.

It was pointed out that even the addresses of the franchisees of the Petitioner had not been furnished.

It was contended that the purported SLR furnished by the Petitioner cannot be relied upon as there were two other LCOs starting with the name of the ‘Eswara’.

9. Our attention in this behalf has been drawn to the letter of the Petitioner dated 20.9.2011, the relevant portion whereof reads as under:- “As a matter of fact, Mr. Raju has offered 4500 connectivity only for Zee Telugu Channel and also offered to pay for 800 connectivity in respect of other bouquet of channels, since the observation of Hon’ble court in the said order was to have negotiations for the other channels in the bouquet, apart from Zee Telugu channel and to determine connectivity, thus making it optional. However, you have interpreted the observations of court to suit to your convenience and coerced Mr. Raju to sign subscription agreement for 4500 connectivity for your bouquet of channel, which is nothing but taking undue advantage of the situation amounting to manipulation and exploitation.”

10. It is true that the Petitioner prior to filling of this petition was required to supply all the relevant documents for obtaining supply of signals for the Zee Telugu channel of the Respondent.

It is, however, beyond any dispute that during pendency of this petition, the Petitioner had furnished a map showing its area of operation.

Respondent furthermore agreed to supply signals of its channels on a subscriber base of 4500. Petitioner furthermore has filed an additional affidavit annexing 11 documents therewith which are necessary for obtaining supply of signals of the channels of the Respondent.

In that view of the matter for the purpose of invoking the provisions analogous to Order VII Rule 7 of the Code of Civil Procedure, subsequent events can be taken into consideration.

11. This Tribunal in Petition No. 2 of 2008 (Reliance Communications Ltd. Vs. BSNL) also took into consideration the subsequent events.

12. In Petition No 395 (c) of 2010 Eswara Communications Vs. MAA TV Network, this Tribunal having regard to the subsequent events taking place in that matter opined:- “40. The Petitioner has placed before us the fibre route map, from a perusal whereof it appears that it has laid cables on the West from Golapudi village to the far end of the Vijayawada town on the east, and Lujudivu village in the North to the last village Krishnalanka on the south abutting the Krishna river.

41. Even in the entire town of Vijaywada it has laid its cable. Evidently therefor, the areas of operation, within which Petitioner intends to operates and/or operate for the time are very large ones. The Petitioner does not say that its area of operation, so far as the channels of the Respondent are concerned, shall be less than its present area of operation. If, for the said areas, the Petitioner can afford to declare a subscriber base of 5000 for Vissa channel, we fail to understand as to on what basis it had shown its subscriber base to be a little more than 1200, so far as the Respondent is concerned.

42. We, therefore, are of the opinion that one of the channels of the Respondent, namely ‘Maa TV’ being popular and the rate of subscription being lower than the subscription rate of ‘VISSA’ channel namely Rs.8/- only vis-à-vis Rs.11/-, the subscriber base for the aforementioned channel should be about 7500. The said figure has been determined by us on an adhoc basis.”

13. The core question, therefore, is to what should be the subscriber base required to determine on a provisional basis?

In this regard, we may observe that the conduct of the Petitioner is not free from blemish. Although technically, the offer of the Petitioner’s counsel as noticed heretobefore would not come within the purview of the provisions of Order XXIII Rule 3 of the Code of Civil Procedures, it is difficult to believe that the counsel for the Petitioner had made an offer on a mistaken basis.

There cannot, however, be any doubt or dispute that it is for the parties to negotiate the subscriber base, keeping in view the SLR furnished by the Petitioner in terms of the provisions of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations 2004 as amended from time to time. (The Regulations)

14. Petitioner as disclosed in its map, has laid cable throughout the municipal limits of the town of Vijyawada and beyond it.

The parties having regard to the regulatory regime, subject to evidence which may be furnished before the Respondent by the Petitioner, are required to negotiate on the subscriber base of the Multi Service Operator. For the said purpose, even a joint survey may be undertaken and based on the result thereof, negotiations may be held for arriving at a true and correct subscriber base, which primarily is the prerogative of the parties.

There is nothing on record to show that the popularity of ZEE Telugu is less than Channels of MAA TV or VISSA.

15. Mr. Chawla contended that if the subscriber base is determined at about 4600 keeping in view the rate of the channel of the Respondent being Rs. 13/- per subscriber, it would be obtaining almost the same subscription fees which the Petitioner had been paying to VISSA TV or MAA TV.

16. We, however, are of the opinion that keeping in view the conduct of the Petitioner vis-à-vis the Respondent, the interest of justice would be sub-served if the subscriber base is provisionally determined so far as the channel of the Respondent are concerned at 5000.

17. This order, however, is subject to the outcome of the joint survey and/or arriving at a negotiated subscriber base. Respondent is directed to enter into an agreement on a provisional basis on the aforementioned subscriber base, subject of course to the condition that the Petitioner shall pay all lawful dues to it regularly.

18. This petition is disposed of with the above mentioned directions. In the facts and circumstances of the case, there shall be no order as to costs.

……………… (S.B. Sinha) Chairperson

…………….. (P.K. Rastogi) Member HKC/