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2016 DIGILAW 170 (CAL)

Durgapur Steel Town Cable TV Operators' Association v. Union of India

2016-02-15

DIPANKAR DATTA

body2016
JUDGMENT : Dipankar Datta, J. The first petitioner is an association of cable TV operators of Durgapur Steel Town. The second petitioner is the president of the first petitioner. They seek an order on the Union of India to extend the time by a further two months from date of presentation of the writ petition (4th February, 2016) for implementation of phase-III in regard to transmission of programmes through Digital Addressable System (hereafter the 'DAS'). 2. It is not in dispute that in terms of Section 4A of the Cable Television Networks (Regulation) Act, 1995 (hereafter the 'Act'), the Central Government is authorised to make it obligatory for every cable operator to transmit or re-transmit programme of any channel in an encrypted form through a DAS with effect from such date as may be specified in the notification that is required to be published in the Official Gazette and that different dates may be specified for different states, cities, towns or areas, as the case may be. 3. It is not in dispute that a notification bearing no. S.O. 2534(E) dated 11th November, 2011 was issued by the Central Government making it obligatory for every cable operator to transmit or re-transmit programmes of any channel in an encrypted form through a DAS in the cities/towns/areas with effect from the dates specified in the table forming part of such notification. The notification dated 11th November, 2011 is not on record. However, the petitioners have annexed to the writ petition a notification bearing no. S.O. 2308(E) dated 11th September, 2014, whereby the Central Government on being satisfied that it is necessary so to do in the public interest had extended the dates specified in column 4 of the table in the notification dated 11th November, 2011 in respect of both phases-III and IV. For phase-III, the time stood extended till 31st December, 2015 in lieu of 30th September, 2014, which was the original date. 4. Relying on the orders passed by the Sikkim High Court, the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur, the High Court of Judicature at Bombay, Bench at Aurangabad and the High Court of Judicature at Hyderabad for the State of Telengana and for the State of Andhra Pradesh, Mr. 4. Relying on the orders passed by the Sikkim High Court, the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur, the High Court of Judicature at Bombay, Bench at Aurangabad and the High Court of Judicature at Hyderabad for the State of Telengana and for the State of Andhra Pradesh, Mr. Roy Mukherjee, learned advocate for the petitioners has prayed for extension of time so as to enable the petitioners make arrangements to comply with the requirements mentioned in the notifications dated 11th November, 2011 and 11th September, 2014. 5. The Sikkim High Court by an order dated 31st December, 2015 passed an interim order in WP (C) No. 73 of 2015 (All Sikkim Cable Operators Association v. Union of India & Ors.) directing maintenance of status quo for 12 weeks upon recording a prima facie satisfaction that the cable operators of Sikkim had genuine difficulties in implementation of the DAS not only because of its topography but also because of practical difficulties in laying of optical fibre cable and non-availability of set top boxes, etc. 6. Surprisingly, the other High Courts have taken a view in the decisions placed before this Bench, keeping in view the observation of the Supreme Court in paragraph-22 of its decision reported in (2004) 6 SCC 254 (Kusum Ingots & Alloys Ltd. v. Union of India & Anr.) that, relief granted by the Sikkim High Court to the cable operators before it should also be extended to the cable operators before them. 7. It would be useful to ascertain what the Supreme Court held in paragraph-22 of its decision in Kusum Ingots & Alloys Ltd.(supra). It reads as follows :- "22. The Court must have the requisite territorial jurisdiction. An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act." 8. This Bench is at a loss to comprehend as to how such observation could be made the foundation to grant interim relief following the decision of the Sikkim High Court. This Bench is at a loss to comprehend as to how such observation could be made the foundation to grant interim relief following the decision of the Sikkim High Court. It is trite that if the vires of a Central Act or any provision of a Central Act is challenged and such challenge succeeds, the Act in question or any provision thereof which was questioned and interdicted may not have applicability in the rest of the country. However, an interim order passed by the Sikkim High Court on a writ petition having regard to the special features presented by the cable operators of that state cannot be a valid ground for having an extension in respect of a city like Durgapur because the topography, climate, road conditions, availability of basic amenities, accessibility, etc. of Sikkim is vastly different and more so when the petitioners were aware of the last date long back, yet, did not take any step for redress of their grievance earlier. Section 4A of the said Act would reveal that the Central Government is empowered to fix different dates for different cities/towns/areas. It would, therefore, be well within the power and authority of the Central Government to fix different dates for implementation of the DAS. Merely because the Sikkim High Court has thought it fit and proper to intervene considering the grievances of the cable operators of Sikkim and has passed an order of status quo, that by itself cannot mean that the notification dated 11th September, 2014 fixing the date for introduction of DAS for phase-III would automatically stand extended for the rest of the country. The line of reasoning of the other High Courts do not appear to be worthy of being followed and, therefore, this Bench records its inability to be persuaded by such judicial decisions. 9. This Bench is afraid, the decisions of the other High Courts do not lend any assistance to the petitioners in obtaining an extension of the time limit within which the DAS ought to be put in place. 10. That apart, the petitioners seem to have rested on their oars without even caring to approach the Central Government with any representation expressing their difficulties. 11. 10. That apart, the petitioners seem to have rested on their oars without even caring to approach the Central Government with any representation expressing their difficulties. 11. It is settled law that an order under Article 226 of the Constitution shall not be granted unless the party complained of has known what it was, he was required to do, so that he had the means of considering whether or not he should comply and it must be shown by affidavits that there was a distinct demand of that which the party seeking the Mandamus desires to enforce, and that demand was met by a refusal. If any authority is required for such proposition, one may usefully refer to the decisions of the Supreme Court reported in AIR 1975 SC 460 (Swasati Industrial Syndicate Ltd. v. Union of India) and AIR 1976 SC 1654 (State of Haryana & Anr. v. Chayan Mal & Ors.). 12. The petitioners have presented this writ petition without even approaching the Central Government voicing a grievance that within 31st December, 2015, it would not be possible for them to comply with the requirements of the notifications dated 11th November, 2011 and 11th September, 2014 and hence, suitable extension may be granted. Since the Act reserves the discretion of the Central Government to order an extension provided it is satisfied that public interest requires such extension to be ordered, there is no question of the writ Court usurping the jurisdiction of the Central Government and making an order for extension in the exercise of its discretionary power under Article 226 of the Constitution. 13. There is no merit in the writ petition. The same stands dismissed, without costs. 14. Needless to observe, this order shall not preclude the petitioners to approach the Central Government in accordance with law. 15. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.