GOD FATHER COMMUNICATION Vs MSM DISCOVERY PVT. LTD.

The petitioner is a multi system operator (MSO). It has filed this petition against the respondent which is a broadcaster, praying, inter alia, for the following reliefs:- “(i) direct the Respondent to enter into a subscription agreement with the Petitioner and provide TV Signals to Petitioner’s Cable TV Network on reasonable terms and conditions and issue Decoders and commence the supply of signals to the Cable TV Network of the Petitioner;

(ii) Grant damages to the Petitioner as against the Respondents of Rs.3,00,000/- along with cost of litigation.”

The petitioner approached this Tribunal earlier by a petition marked as Petition No. 105(C) of 2009 wherein the following order was passed:- “Counsel for respondent submits that petitioner has not supplied the requisite information for the purpose of processing petitioner’s case for supply of signals. Counsel for petitioner denies this. However, without entering into this controversy, the counsel for the petitioner has agreed to supply the requisite information to the respondent at the New Delhi office of the respondent within one week from today. The respondent will thereafter process the application of the petitioner for supply of signals expeditiously. The petition stands disposed of.”

The said license admittedly had expired, which had been entered into by and between the parties. Indisputably, the petitioner had sent a representation on or about 2.6.09 followed by a reminder in terms whereof, the requisite informations were furnished and documents were sent to the respondent for entering into a subscription agreement for the year 2009-2010. As the matter had not been disposed of by the first respondent within a period of 60 days from the said date, this petition has been filed. On 27.10.2009, one of us, Mr. G. D. Gaiha, Member, observed as under:- “The application for seeking signals was submitted by petitioner to the respondent on 02.06.2009 and again on 03.07.2009 alongwith all the details for signing of the subscription agreement. The petitioner has submitted that the respondent has not acted on the request of the petitioner. The counsel for the respondent submits that since the license of the petitioner has already expired on 09.09.2009, therefore, the application is not possible to be considered. This contention does not appear to be a valid excuse at the time, when the application was submitted to the respondent by the petitioner 02.06.2009 and 03.7.2009. Let the respondent consider the application of the petitioner within two weeks’ time. In the meantime, if the petitioner is able to get the fresh registration certificate from the Post Office, the same be submitted to the respondent. The application for seeking signal be considered by the respondent as per the Regulations within two weeks’ time.”

The respondent, however, on or about 17.11.09, made a representation that the application of the petitioner has been rejected. We may notice the order sheet of the said date:- “Learned counsel for the respondent states before us that the application for grant of connection has been rejected on the ground of piracy. It is stated that a copy of the video recording and CD is being produced before this Court. A copy of the same has been supplied to the learned counsel for the petitioner. An affidavit, in support of the aforementioned statement, it is stated, shall be filed within two days. Let the matter appear on 27.11.2009. In the meantime, the petitioner may file reply to the said affidavit. The petitioner shall also be at liberty to file an application for amendment of the petition or such other petition as may be advised in this behalf.”

Apart from a CD, which has been placed by way of an affidavit, the respondent has not placed on record any order rejecting the request of the petitioner for supply of signals to it pursuant to or in furtherance of the observations made by this Tribunal on 27.5.09 in the said Petition No. 105(C) of 2009.

Mr. Bhagat, the learned counsel appearing on behalf of the petitioner would urge that the respondent acted malafide as it had been taking different pleas, namely, expiry of the license and when the same did not appeal to this Tribunal, rejected the application of the petitioner on the ground of piracy.

Before this Tribunal, the petitioner has examined Shri Gurdev Singh Bhullar. In his cross-examination he stated as under:- “My area of operation in Amritsar are Majithia Road, Tungbala Gate, White Avenue, Lawrence Road, Shivala, Loharka, Ranjit Avenue Housing Board, Nangli, Nehru Complex only. There are 10 LCOs working under me. I run 80 channels on my network. All channels are free To Air channels. I do not remember what was my turnover in the preceding three years. I Pay Income Tax. I also maintain my books of accounts. I pay service tax. I do not remember as to how much service tax I paid in the last assessment year. I have only 650 subscribers. I do not provide direct connections to my subscribers. I do not get any amount from the cable operators now as the cable operators have not been able to save any amount from their income. My cable operators take signals only from me. I have written agreements with all my cable operators. They are not on record. There is no cable operator at Hukum Singh Road but the one at Shivala Road operates at Hukum Singh Road also. The attention of the witness is drawn to Exhibit PW 1/1 and Exhibit PW 1/2. The logos appearing on the aforementioned exhibits are ours. The word ‘GFC’ denote for Godfather communications. The logo is being used by the petitioner from the very beginning.

This logo is also shown on the TV screen of all the connections. I am not aware as to whether the respondent has rejected my application for grant of signals.”

The first respondent in support of its case has examined two witnesses, namely one Ravinder Singh, who is said to be the proprietor of one Gullu Cable Network, who stated that the petitioner had been supplying signals to it. The said witness was produced although a challenge was thrown that he was not the proprietor of the aforementioned Gullu Cable Network. The respondent has also examined one Shri Arun Arora. He is its Territory Sales Manager. According to him, he had prepared the CD. In the affidavit affirmed by him, it was stated:

“That during the said video survey we were shocked to find that the above said channels of the respondent MSM Discovery were being shown fearlessly by the Petitioner’s Cable TV Network i.e. God Father Communications, popularly known as GFC. It is humbly submitted that the said unauthorized telecast of “The One Alliance Channels” by the petitioner amounts to piracy, infringement of copyright and is a punishable offence.”

He, however, in his cross-examination stated as under:-th “I am working with Respondent since w.e.f 27 September, 2008. th I was holding the post of Territory manager since 27 September, 2008 till date. th th The video recording submitted with my Affidavit has been done by me 27 /28 October, 2009. th th I cannot exactly say as to on what date I have done this recording. It may be on 27 October or may be on 28 October, 2009. It was done only once. One Mr. Rakesh, accompanied me for doing this recording. Rakesh also worked as a Cameraman for this recording. At that time when recording was being carried out, I was instructing Mr. Rakesh about the channels and the camera was with Mr. Rakesh. Mr. Nitin Mehra, Regional Manager has given the instructions for doing a local survey for finding out as to where the channels of the petitioner are working and which are the channels which are being run by the petitioner. These instructions were given to me by Mr. Nitin Mehra when the petitioner asked for the decoder boxes of the respondent.” “I have made the survey for the petitioners network at Majitha Road, Lawrence Road, Hukamsingh Road, near bus stand. The Video survey was carried out only for Hukamsingh Road.”

“I have not asked for any receipt from the shopkeeper to ensure that he is a subscriber of the petitioner. I have not tried to confirm by following the wiring upto the TV connection whether the signals are being received from a particular cable operator. I and Mr. Rakesh then checked up that the wires are coming not from the point of distribution of Fastway but from some other cable operator. I have no idea of any technology by which the signals of one cable operators can be mixed with another cable operators. I have not involved any other independent person for conducting the above survey. I have not reported about this survey to any other authority. It is incorrect to say no piracy was being done by the petitioner. It is incorrect to say that I have made a recording out of a recording to place it on record of this Tribunal.”

A bare perusal of his cross-examination would clearly go to show that although he had visited many places, survey was carried out only in the shop of one of the subscribers at Hukam Singh Road. He even could not tell the name of the shop. The identity of the owner of the shop has not been disclosed on the ground of alleged confidentiality. He arrived at an inference that the petitioner had been supplying signal of the respondent on the premise: (1), the logo of GFCE was flashing on the TV and; (2) the subscriber had not been getting signal through Fastway, its authorized distributor.

He admits that video can be recorded from another recorded version. It is also possible that some interpolations are made to substitute a logo in the video recording of another. The evidence of the said witness does not inspire confidence. Furthermore, in para 3 of his affidavit, he contended :- “That in pursuance to the knowledge so gained, we got a video survey conducted in the area i.e. Hukam Singh Road, Amritsar. The said video survey was conducted in my presence and supervision.”

Who are the other persons who had helped him and/or associated in the matter of recording of video has not been disclosed. We may furthermore notice that the contents of the said affidavit had been verified as under:- “I, the deponent above named do hereby verify that the contents of the Paras 1 to 5 and 8 of my above said affidavit are true and correct to the best of my knowledge and belief and the rest are my humble submissions to this Hon’ble Court. No part of it is false and nothing material has been concealed therefrom.”

No reliance, therefore, in our opinion, can be placed on such an affidavit.

There are certain other circumstances, which we may also take notice of. The petitioner had never been informed of such a survey nor was he told about the rejection of its application. The Affidavit or the CD even does not show that on which date it was recorded. It was for the respondent to establish that the shop wherein the purported survey had been conducted, had been receiving supply of the petitioner and not of the sole distributor of the respondent. The sole distributor of the respondent, we have been informed at the bar, is a constituent of M/S Digi Cable. It has an all-India presence. If the petitioner had been supplying signals without any authority, it was expected that at least the distributor of the petitioner would make some complaints before the competent authorities. Furthermore, the very fact that the petitioner had been approaching this Tribunal again and again and that on one ground or the other, its applications are being rejected from time to time, is also a pointer to show that the respondent had been acting malafide.

We, therefore, allow this petition, directing it to supply the signals on usual terms on a subscriber base of 700. However, it would be open to the respondent to get an independent survey conducted with regard to the subscriber base with prior notice to the petitioner and/or a joint survey. We, however, are of the opinion that in a case of this nature, a joint survey should be conducted. If the number of subscribers taking signals of the petitioner is found to be more, the subscriber base in agreement entered into by and between the parties shall be given a retrospective effect from the said date. In the facts and circumstances of the case, the petitioner is also entitled to costs. Counsel’s fee assessed at Rs.50, 000/-.

.. .…………….., J (S.B.Sinha) Chairperson

……………..... (G. D. Gaiha) Member

…………….. (P.K. Rastogi) Member