ORTEL COMMUNICATION LTD. Vs TAJ TELEVISION (INDIA) PVT. LTD.

The petitoner is a Multi Service Operator. It has set up a head end for supply for re-transmission of signals of different broadcasters of digital platform. It made a request to the respondent herein for supply of signal of its channels to its network. On or about 12.12.2009, it had obtained a certificate from the Broadcasting Engineering Consultants India Ltd. (BECIL) to the effect that `Conditional Access System’ and `Subscriber Management System’ installed at its head end satisfy the stipulated criteria under the Regulation. It gave another reminder to its request on or about 3.7.2010.

Inter alia on the premise that despite several requests the respondent failed and/ or neglected to supply signals of its channels to its network, this petitoin was filed on or about 15.12.2010, pryaing inter alia for the following reliefs:- “A. It is prayed that the Respondents be directed to consider the request dated 12.12.2009 and 3.7.2010 of the Petitioner for supply of signals of ZEE Sports, Ten Sports, and Ten Cricket Channels on reasonable & non-discriminatory terms and sign subscription agreement.

B. Direct the Respondent to pay damages due to the loss of business, growth and income.”

An inspection of the petititoner’s head end was said to have been made by the respondent on or about 21.3.2011, wherein allegedly the following deficiencies were found :- a) “Broadcaster report is not available;

b) The ageing of the subscriber on the particular channel or package is not available;

c) The total count of number of subscribers authorized is not available;

d) CAS and SMS reconciliation process defined by Ortel was not demonstrated;

e) T he STB should have a provision that OSD should never be disabled however the same was being disabled on pressing exit/back button;

f) Covert fingerprinting is not available;

g) Fingerprinting location is not defined by Ortel on user defined coordinates;

h) The STB's (Dizipro and Skyworth) are not paired with smart card from CASend;

i) Fingerprinting is location is not configured on all channels;

j) In Skyworth remote gets disabled during finger-printing;

k) Ortel mentioned that they are using three different CAS i.e. lredeto, Sumavision and Logic Eastern, however, Taj has evaluated only Iredeto;

l) Watermarking logo of Ortel is not available on its STB's;

m) In case of masking of finger-printing with available software in the market, Ortel does not have second line of action to avoid piracy; and n) Antipiracy process with escalation matrix and turn-around time to deactivate the pirated card number should be specified which is not presently there.”

The said inspection is said to have been carried out when the process of negotiation had started.

A counter affidaivt to the affidavt of the respondent has been filed by the petitioner on or about 18.4.2011 denying and disputing that the equipments installed at its head end suffer from any deficiency.

It contneded that the BECIL in the final authortiy to decide whether the petitioner had complied with all requsiste standards laid down by the TRAI in terms of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 as amended by Amending Regulations, dated 17.3.2009.

The respondent filed its reply to the petition. A rejoinder thereto has also been filed.

Having regard to the rival contentions of the parties, issues were framed on 19.4.2011. Oral evidence was directed to be adduced confined to the question as to whether the equipments installed at the head end of the petitioner meet the requirements of the Regulations. It was observed :- “ Keeping in view the certificate issued by BECIL who is the agency authorized in this behalf and such a certificate having been produced by the petitioner, we are of the opinion that the respondent may adduce evidence at the first instance as to the deficiencies in the headend of the petitioner, if any, in rebuttal whereof, the petitioner may produce its witness if any occasion arises therefor at a later stage. The learned counsel for the respondent states that the evidence of the witness of the respondent in this behalf shall be filed within two weeks.

Put up the matter on 23.5.2011 for cross-examination.”

The respondent in support of its case has examined Mr.Sandeep Panwar and Mr.Ramandeep Biala. They were cross-examined by the learned counsel for the petitioner.

Upon completion of cross-examination of the said witnesses, the petitioner summoned Lt. Col (Retd) Mr.V.C. Khare, Technical Advisor, BECIL to prove its case.

On 12.9.2011, on a prayer made by the petitioner, Mr.Khare was summoned. The said witness was examined on 12.9.2011. He produced the relevant records.

The petitioner, however, filed an application on or about 14.9.2011, praying for :- “a. Permit BECIL to reappraise the Petitioner’s headend in the context of the objections raised by the Respondent.

b. Pass any further orders or directions as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the present case.”

The said prayer was allegedly for the purpose of cutting short any unnecessary controversy and without prejudice to its rights and contentions. With the said application a letter written to BECIL on 9.9.2011 which is said to have been delivered to it on 12.9.2011, has been annexed.

The said application was marked as MA No.247/2011.

This led to filing of an application marked as M.A. No.250/2011 by the respondent, stating :- “4. On 12.09.2011, Mr.Khare, the witness from BECIL appeared before this Hon’ble Tribunal and produced the report of BECIL which was taken on record and copies of the same were supplied to the counsel for the respondent. The cross-examination was then re-scheduled for 23rd September, 2011. It is relevant to point out that at the time when the examination-in-chief was conducted by the counsel for the petitioner there was not even the slightest hint of any correspondence having been written by the petitioner to the said witness nor was there any remote suggestion made by the petitioner about a re-inspection/ re-appraisal of the petitioner’s premises was being sought.

5. To the utter shock and surprise of the respondent, an application MA No.247 of 2011 was served upon respondent on 13.9.2011 in which a prayer is being sought by the petitioner for a direction to BECIL to conduct a re-appraisal/ re-audit of the petitioner’s headend. However, in a completely mischievous manner and in an attempt, which amounts to over-reaching this Hon’ble Tribunal, it has now come to light that the petitioner has addressed a letter dated 9.9.2011 to a witness, especially one to whom oath has already been administered by this Hon'ble Tribunal, and despite the same not a single mention about it was made on 12.9.11 when the examination-in-chief of Mr. Khare took place.

6. The mischief in the said letter dated 9.9.11 is writ large on the face of it inasmuch as the said letter is merely a ruse to inform and communicate to the official witness of BECIL the various deficiencies which were found by the respondent and were deposed through the respondent's witness. All these aspects would have been put to the witness in cross-examination by the respondent by addressing a letter dated 9.9.11 and illegally communicating that the official witness, the petitioner has overreached this Hon'ble Tribunal. Moreover, the nondisclosure of the said alleged letter dated 9.9.11 also creates a doubt about veracity and the purpose of such a letter. The petitioner is obviously now trying to seek a re-appraisal after having clearly understood and realized that the report and certificate of BECIL would be insufficient in meeting all the deficiencies which have been pointed out by the respondent. The respondent further submits that the circumstances of the issuance of the letter dated 9.9.11 and the application under M.A. No. 247 of 2011 moved by the petitioner ought to be established before this Hon'ble Tribunal. The issuance of the said letter is with an intention to disturb the independence and unbiased nature of the deposition of an expert official witness like BECIL. A copy of the letter dated 9.9.2011 is annexed as ANNEXURE - A. 7 It is submitted that the letter of 9.9.2011 is a mere afterthought and an attempt to overreach the legal process as well as the indulgence of this Hon'ble Tribunal in having entertained the present petition. Moreover, it is submitted that the basic purpose of the Petitioner to have addressed the letter dated 9.9.2011 is only to give an insight to the witness, Mr. V.C. Khare, about the nature of questions which he is about to face in the cross-examination, thereby ensuring that the said witness is not caught by surprise during the cross examination and that the truth is not extracted from him.”

Mr.Arun Kathpalia, learned counsel appearing on behalf of the petitioner, at the outset, drew our attention to Clause 13.2 B.4 of the Regulations to contend that keeping in view the objections raised by the respondent, it is necessary to invoke the first proviso appended thereto.

The provisions appended to Clause 13.2B.4 of the Regulations read as under :- “….Provided that in cases where a broadcaster is of the opinion that the addressable system being used for distribution of TV channels does not satisfy the minimum specifications for addressable systems as specified in Schedule IV to these regulations, upon being informed of such opinion by the broadcaster, the distributor of TV channels shall get the addressable system audited by M/s. Broadcast Engineering Consultants India Ltd., or any other agency as may be notified by the Authority from time to time for the purpose of such audit and obtain a certificate to the effect that the addressable system being used for distribution of TV channels satisfies the minimum specifications for addressable systems as specified in Schedule IV to these regulations:

Provided further that the finding of M/s. Broadcast Engineering Consultants India Ltd., or any other agency notified by the Authority in this regard, as the case may be, based on such audit as referred to in the first proviso, about the addressable system being used for distribution of TV channels satisfying or not satisfying the minimum specifications for addressable systems as specified in Schedule IV to these regulations, shall be final.”.

It was urged that the letter dated 9.9.2011 addressed to BECIL was a bonafide act on the part of the petitioner.

Mr.Maninder Singh, learned senior counsel appearing on behalf of the respondent, on the other hand, submitted :- (i) The said letter dated 9.9.2011 has been issued only with a view to tutor the witness concerned, which is impermissible in law.

(ii) The petitioner during the pendency of the proceedings could not have issued any letter to a witness for any purpose whatsoever and the same has defeated the purpose for which a witness and in particular an independent expert witness is to be cross-examined.

(iii) The said letter was written only with a view to forwarn the witness as to on which points he was likely to be cross-examined and thus defeating the very purpose of cross-examination of an expert witness.

Clause 13.2 B was inserted by 5th Amendment Regulation of 2009 so as to enjoin a duty upon a `distributor of a TV channel’ to ensure that the minimum specification for `addressable system’ as specified in the 4th Schedule appended thereto are satisfied.

The 4th Schedule appended to the said Regulations provides for specifications for Set Top Boxes, Conditional Access System and Subscribers Management System.

As noticed heretobefore, a finality clause is attached to the certificate issued by the BECIL in terms of the second proviso appended to the said provision.

The second proviso would be attracted only when the first proviso is attracted. A perusal of the first proviso appended to Clause 13.2B.4 of the Regulation evidently would be attracted when an opinion is expressed by the broadcaster that the addressable system any question does not satisfy the minimum specification as specified in the 4th Schedule.

The parties started negotiations even during pendency of this petition. Inspection of the Control Room of the petitioner was carried out on or about 21.3.2011. If the petitioner intended to invoke the first proviso appended to Clause 13.2B.4 of the Regulations, it could have done so immediately after the affidavit affirmed by Mr.Karunakaran J.P., Senior Executive Legal was filed.

The inspection was conducted by a technical team of the respondent.

The petitioner not only failed and/or neglected to resort to the procedure laid down in the said proviso but in fact contested the contentions of the respondent. It even went to the extent of contending that having regard to the regulatory regime, the onus of proof was on the respondent. This Tribunal accepted the said submission and called upon the respondent to prove its case.

Technical witnesses examined on behalf of the respondent were thoroughly cross-examined. BECIL’s certificate was sought to be proved only in that context.

Mr.Khare is an Officer of BECIL, a public sector undertaking. It, in terms of the Regulations made by the TRAI, has been entrusted with a duty to certify that the equipments installed by the petitioner conformed to the specifications laid down in the Fourth Schedule appended to the Regulations.

BECIL is, therefore, enjoined with a duty to perform a statutory function, particularly, in view of the fact that it’s certificate upon making an audit of the system would be deemed to be final.

We, herein, are not concerned with the effect and purport of the said finality clause. If the petitioner wanted to take an alternative stand, it should have obtained the leave of this Tribunal.

It cannot be permitted to over reach the process of the Court to communicate directly with the witness when it itself had summoned him in terms of Order XVI of the Code of Civil Procedure, 1908.

It without amending the petition cannot be permitted to initiate a parallel proceedings by invoking the first proviso appended to Clause 13.2B.4 of the Regulation.

In any event, it was the duty of the petitioner to be fair to this Tribunal by bringing it to its notice that it had addressed such a letter to BECIL in relation whereto attention of Mr.Khare was drawn.

The purpose of cross-examination, as has been noticed by a Division Bench of Delhi High Court in Kharaiti Lal and Sons vs. Hari Singh and Ors. AIR 2002 Delhi 335 is inter alia to weaken, qualify or destroy the case of the opponents; and to establish the party’s own case by means of its opponent’s witnesses. It was observed that the objects of cross-examination are to impeach the accuracy, credibility and general value of evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party.

There cannot be any doubt or dispute that a witness is to be treated fairly. A witness and in particular an expert witness who has issued a certificate on behalf of a statutory body, should have been permitted to be cross-examined without any communication whatsoever; oral or in writing.

Even a witness whether inside the Court or outside the Court cannot be given any hint as to what should be the area of cross-examination. In fact an expert witness representing an independent agency is not expected to meet either of the parties to the lis or their counsel.

If an expert witness has appeared before a Court of law having received the summons, he can only attend the Court and express his opinion on the subject on which he has been asked to depose.

It is not a case where this Tribunal can condone a lapse on a part of a party to the lis. For all intent and purport, the action on the part of the petitioner amounts to over-reaching the process of law. It must be deprecated in strongest terms.

We, therefore, have no hesitation to dismiss the MA No.242/2011.

Sofar as the respondent’s application marked as MA No.250/2011 is concerned, we do not agree with Mr.Maninder Singh’s submission that on this ground this petition should be dismissed but keeping in view the peculiar facts and circumstances of this case, particularly, in view of the fact that the certificate of BECIL having not been granted in terms of the second proviso appended to Clause 13.2B.4 of the Regulations, the same, it is held, cannot be treated to be final and, thus, even if the same is proved, the statutory presumption cannot be drawn.

Mr.Khare has been forewarned by the petitioner by pointing out the deficiencies existing in its equipments as had been opined by the respondent’s technical team. Evidently, Mr.Khare had no occasion to make inspections having regard to the said deficiencies in mind. No fruitful purpose, therefore, would be served by bringing the said certificate on record.

However, with a view to do complete justice to the parties, we are of the opinion an opportunity should be granted to the petitioner to examine its own witnesses, other than Mr.Khare. The affidavits of such witnesses, if any, may be filed within two weeks from date.

M.A. No.247/2011 is dismissed and M.A. No.250/2011 is disposed of on the above terms.

The costs of these applications shall abide by the ultimate result of the petition.

(S.B. Sinha) Chairperson (P.K. Rastogi) Member January 19, 2012 `ns’