& Restaurant Assocn. and Anr Vs. Star India Pvt. Ltd. & Ors  Insc
856 (24 November 2006)
Sinha & Markandey Katju
W I T
H CIVIL APPEAL NO. 2247 OF 2006 S.B. SINHA, J :
are members of Hotel Association of India and Hotel & Restaurant Owners Association (Western India), EIH Limited and Eastern
International Hotels Ltd. The members of Hotel Association of India are owners of big hotels whereas
the members of Hotel & Restaurant Owners Association (Western India) are owners of small hotels. They
provide television services to their guests. Respondents herein are
broadcasters or distributors. The television services provided for by the
broadcasters to the actual consumers are carried through distribution of Cable
or Multi System Operators (MSOs). Whereas ordinarily in the small hotels cable
operators give signal to all the rooms wherefor separate charges are levied;
the services provided in the big hotels are through an equipment installed for
the said purpose known as Head End. The signals are received through
satellites. They have contracts with the broadcasters directly.
Parliament enacted the Cable Television Networks (Regulation) Act, 1995 (for
short "the 1995 Act") to regulate the operation of cable television
networks in the country and for matters connected therewith or incidental
operator", "cable service" and "cable television
network" as defined in Section 2 of the 1995 Act read as under:
"cable operator" means any person who provides cable service through
a cable television network or otherwise controls or is responsible for the
management and operation of a cable television network;
"cable service" means the transmission by cables of programmes
including re-transmission by cable of any broadcast television signals;
"cable television network" means any system consisting of a set of
closed transmission paths and associated signal generation, control and
distribution equipment, designed to provide cable service for reception by
multiple subscribers;" Chapter II of the 1995 Act provides for cable
television network to be operated only upon registration thereof. Section 4-A
of the 1995 Act provides for transmission of programmes through addressable
regulations in regard to the operation of cable operators are provided for in
the 1995 Act. Sub-section (9) of Section 4-A which is relevant for our purpose
reads as under:
Every cable operator shall submit a report to the Central Government in the
prescribed form and manner containing the information regarding –
number of total subscribers;
number of subscribers receiving programmes transmitted in basic service tier or
particular programme or set of programmes transmitted on pay channel, in respect
of cable services provided by such cable operator through a cable television
network, and such report shall be submitted periodically at such intervals as
may be prescribed and shall also contain the rate of amount, if any, payable by
the cable operator to any broadcaster." In the year 1997, the Telecom
Regulatory Authority of India Act, 1997 (for short "the TRAI
Act") was enacted which came into force from 28th March, 1997. By reason of the TRAI Act, a Telecom Regulatory Authority
of India (TRAI) and an Appellate Authority known as Telecom Disputes Settlement
and Appellate Tribunal (TDSAT) were constituted.
provider" and "telecommunication service" have been defined in
Sections 2(1)(j) and 2(1)(k) of the TRAI Act in the following terms:
"service provider" means the Government as a service provider and
includes a licensee;
"telecommunication service" means service of any description
(including electronic mail, voice mail, data services, audio tex services,
video tex services, radio paging and cellular mobile telephone services) which
is made available to users by means of any transmission or reception of signs,
signals, writing, images and sounds or intelligence of any nature, by wire,
radio, visual or other electromagnetic means but shall not include broadcasting
that the Central Government may notify other service to be telecommunication
service including broadcasting services." In exercise of its power under
the proviso appended to Section 2(1)(k) of the TRAI Act, the Central Government
issued a notification on 9.01.2004 notifying broadcasting and cable services to
be telecommunication services.
15.01.2004, a Tariff Order known as "The Telecommunication (Broadcasting
and Cable) Services Tariff Order, 2004" was issued by TRAI freezing the
charges prevalent on 26.12.2003 till final determination by it on the various
issues concerning those charges. The same was to apply in both Conditional
Access System (CAS) and non-CAS areas. The said Tariff Order was amended on
10.03.2004 known as "The Telecommunication (Broadcasting and Cable)
Services Tariff (First Amendment) Order, 2004" in terms whereof
classification and non-classification of CAS and non-CAS areas were done away
with. Chennai, however, was excluded from the operation thereof. The said Order
was amended again on 13.08.2004 wherewith we are not concerned herein.
about 1.10.2004, a new Tariff Order for cable and broadcasting services called
"the Telecommunication (Broadcasting and Cable) Services (Second) Tariff
Order, 2004" was issued by TRAI. It inter alia laid down definitions for
various entities such as MSOs, broadcasters and cable operators and reiterated
the ceiling/ freeze prescribed by the first Tariff Order. Definitions of
"broadcaster", "broadcasting services", "cable
operator", "cable service" and "cable television
network" were provided therein which are as under:
'broadcaster' means any person including an individual, group of persons,
public or body corporate, firm or any organisation or body who/ which is
providing broadcasting service and includes his authorised distribution
'broadcasting services' means the dissemination of any form of communication
like signs, signals, writing, pictures, images and sounds of all kinds by
transmission of electro magnetic waves through space or through cables intended
to be received by the general public either directly or indirectly and all its
grammatical variations and cognate expressions shall be construed accordingly;
'cable operator' means any person who provides cable service through a cable
television network or otherwise controls or is responsible for the management
and operation of a cable television network;
service' means the transmission by cables of programmes including
re-transmission by cables of any broadcast television signals;
'cable television network' means any system consisting of a set of closed
transmission paths and associated signal generation, control and distribution
equipment designed to provide cable service for reception by multiple
subscribers;" In regard to the tariff, it was stated:
charges, excluding taxes, payable by
Cable subscribers to cable operator;
Cable operators to multi system operators/broadcasters (including their authorised
distribution agencies); and
Multi system operators to broadcasters (including their authorised distribution
agencies) prevalent as on 26 December 2003
shall be the ceiling with respect to both free-to-air and pay channels.
that if any new pay channel(s) that is/are introduced after 26.12.2003 or any
channel(s) that was/were free to air channel on 26.12.2003 is/are converted to
pay channel(s) subsequently, then the ceiling referred to as above can be
exceeded, but only if the new channel(s) are provided on a stand alone basis,
either individually or as part of new, separate bouquet(s) and the new
channel(s) is/ are not included in the bouquet being provided on 26.12.2003 by
a particular broadcaster. The extent to which the ceilings referred to above
can be exceeded would be limited to the rates for the new channels. For the new
pay channel(s) as well as the channel(s) that were free to air as on 26.12.2003
and have subsequently converted to pay channel(s) the rates must be similar tothe
rates of similar channels as on 26.12.2003:
further that in case a multi system operator or a cable operator reduces the
number of pay channels that were being shown on 26.12.2003, the ceiling charge
shall be reduced taking into account the rates of similar channels as on as on
26.12.2003." On 1.12.2004, the Telecommunication (Broadcasting and Cable)
Services (Second) Tariff (Second Amendment) Order, 2004 was notified permitting
a 7% increases in the charges on account of inflation. A Regulation termed as
"The Register of Interconnect Agreements (Broadcasting and Cable Services)
Regulation, 2004" was issued by TRAI on 31.12.2004 wherein 'consumer' was
defined to mean 'any person who is subscriber of any broadcasting service(s) in
broadcasters had fixed charges for providing television services to domestic
consumers. They sought to make demands to increase the rates of the hotels on
the premise that TRAI had announced an increase of 7% over the rates prevalent
on 26.12.2003 (ceiling rate) would be permitted on the ground of inflation.
Appellants Hotel Associations do not dispute the applicability thereof.
view of a purported arbitrary increase in the rates in regard to services to
the hotels, Appellants Hotel Associations sought for intervention of TRAI so
as to enable them to guide their members in regard to renewal of contracts, for
continuity of supply of feed by their respective television channel
proposed increase in the rates demanded by the Broadcasters is completely
arbitrary and without any basis or justification. It is a blatant manifestation
of their monopolistic position by the Broadcasters, who have formed a cartel.
It tantamounts to exploitation of hotels, leaving them no choice other than to
comply with the unilateral increase in rates by 30th March, 2005 failing which
their channels will be deactivated.
will be appreciated that viewing television channels in hotels is an important
guest facility for tourists and international traveler, staying in hotels which
provide facilities and services of comparable nature of standards as followed
with other countries. The threatened deactivation of channel from 30th March, 2005 if implemented would result in
great inconvenience to and complaints from international visitors and from the
tourists staying in hotels. It would be highly detrimental and damaging to the
image of tourism in India and would undermine the various
measures, which the government and the tourism industry are jointly taking in
public private partnership to promote tourism to India." Notices were issued by TRAI to the broadcasters.
However, having regard to the threat of disconnecting the services by the
broadcasters unless the rates demanded by them were paid, Appellant Hotel
Association of India filed an application marked as
Application No. 32(C) of 2005 before TDSAT praying inter alia for the following
Direct the respondents to charge fair, non- discriminatory, non-arbitrary and
cost based rates by the respondents.
Direct the respondents to provide the detail working of the final rental
charged and submit supportive documents and other details as may be necessary
to ascertain that the final rental charged is fair, cost based, non-arbitrary
and non- discriminatory;
Direct the respondents not to deactivate channels of the members Hotel of the
petitioner No. 1 Association until the final disposal of the present petition.
Pass ad-interim, interim, ex-parte orders in terms of the above prayers;"
Appellant Hotel & Restaurant Owners Association (Western India) also filed a similar application
bearing No. 80(C) of 2005. Indisputably, on 4.04.2005, an interim order
directing maintenance of 'status quo as existing on that date' was passed by
about 29.11.2005, a Second Order was issued by TRAI permitting the broadcasters
to further increase 4% of the enhanced charges, (i.e., ceiling charges + 7%)
again on account of inflation. Indisputably, however, the operation of the said
order was stayed.
the applications filed by Appellants, TDSAT in its order dated 17.01.2006 inter
alia opined that hotels are neither the consumers nor subscribers stating :
Now we come to the question whether the tariff laid down by the TRAI
notification of 26th
December, 2003 is
applicable to the members of the petitioner associations. The said Tariff order
covers the following in its ambit - the charges payable by
Cable subscribers to cable operator;
Cable operators to multi service operators/broadcasters (including their
authorized distribution agencies); and
Multi service operators to broadcasters (including their authorized
petition before us we find that the commercial relationship is between the
members of the petitioner associations (viz., hotels, restaurants etc.) on the
one hand and either cable operators or broadcasters on the other. We have
already concluded that the members of the petitioner associations cannot be
regarded as subscribers or consumers. As such we are of the view that the above
tariff notification of the TRAI would not be applicable. It seems that TRAI has
found it necessary to fix the tariff for domestic purpose. We think the
Regulator should also consider whether it is necessary or not to fix the tariff
for commercial purposes in order to bring about greater degree of clarity and
to avoid any conflicts and disputes arising in this regard.
view of the above, we are of the opinion that the respondents are well within
their rights to demand the members of the petitioner associations to enter into
agreements with them or their representatives for the receipt of signals for
actual use of their guests or clients on reasonable terms and conditions and in
accordance with the regulations framed in this regard by the TRAI."
Appellants are, thus, before us in these appeals preferred under Section 18 of
of Appellants inter alia are:
Keeping in view the scheme of TRAI Act; TDSAT while exercising its original
jurisdiction could not have issued any direction upon TRAI to frame any tariff
and, thus, tariff framed by TRAI pursuant thereto or in furtherance thereof is
Tariff framed by TRAI being applicable to all consumers who obtain
telecommunication services, TDSAT committed a serious error in opining that the
same would not apply to commercial consumers.
TDSAT having regard to the scheme of the Act and the orders made thereunder
committed a manifest error in holding that the applications filed by Appellants
were not maintainable.
appearing on behalf of broadcasters, on the other hand, submitted:
Appellants do not constitute a "group of consumers" so as to maintain
an application under Section 14(a)(ii) of TRAI Act.
Tariff Order dated 15.01.2004 and subsequent Tariff Orders dated 1.10.2004 and
1.12.2004 providing for ceiling rates payable by "cable subscribers"
to "cable operators" apply to individual members of Appellants who
use it for commercial purpose and are transmitting the same to the customers.
The individual members of Appellants being not governed by the Tariff Orders
dated 7.03.2006 and 24.03.2006 and in any event the validity thereof having not
been challenged by them, all these appeals have now, therefore, become
In any event, in terms of the Tariff Order dated 15.01.2004, Appellants were
bound to pay the rates as were prevailing on 26.12.2003 and changed from time
Five-Star hotels are not 'subscribers' within the meaning of the provisions of
the said Tariff Orders.
Cable operators having not been authorised to give connection to the commercial
establishments, the impugned judgment cannot be faulted with.
In any event, broadcasters having appointed their own authorised suppliers, the
hotel associations were bound to take connection only from them.
As despite a direction issued by TDSAT to the appellants directing them to
disclose the names of the cable operators, they having failed to do so, are not
entitled to any equitable relief.
questions of seminal importance arise for consideration in these appeals, viz.:
Whether the members of Appellants Associations are consumers and, thus, were
entitled to invoke the jurisdiction of TDSAT in terms of Section 14 of TRAI
Whether the Tariff Orders issued by TRAI on 15.01.2004 and 1.10.2004 are
inapplicable to members of Appellants Associations, i.e., hotels on the ground
that those are commercial establishments? TDSAT in its impugned judgment opined
that hotels are not consumers or subscribers. It, however, observed that the
members of the hotels associations are de facto MSOs but being not registered
do not enjoy the legal status thereof.
may, before embarking upon the legal issues, notice the findings of TDSAT which
are as under:
The members of Appellants Associations are not subscribers as contemplated
under the 1995 Act.
Each room of the hotels/ restaurants can be called as a subscriber.
The management of the hotels cannot be termed as subscribers.
various restaurants using cable television cannot be treated as subscribers.
In view of the definition of "consumer" contained in Consumer
Protection Act, 1986 (for short "the 1986 Act"), the users for
commercial purposes having been excluded, members of Appellants Associations
being not users of the signals received by them cannot be treated as either
subscribers or consumers for the purpose of relief sought for in the petition.
Members of Appellants Associations being not subscribers or consumers, the
Tariff Orders would not be applicable.
11 of TRAI Act provides for the functions of TRAI. Clause (a) of Sub-section
(1) of Section 11 of TRAI Act empowers TRAI to make recommendations either suo motu
or on the request from the licensor, on the matters enumerated therein. Clause
(b) thereof empowers it inter alia to fix the terms and conditions of
inter-connectivity between the service providers.
(2) of Section 11 of TRAI Act contains a non-obstante clause providing that
TRAI may frame from time to time by order (s) notified in the official gazette
the rates at which the telecommunication services within India and outside
India shall be provided under the said Act including the rates at which
messages shall be transmitted to any country outside India. Proviso appended to
Sub-section (2) thereof empowers TRAI to notify different rates for different
persons or class of persons for similar telecommunication services and where
different rates are fixed as aforesaid TRAI shall record the reasons therefor.
14 of TRAI Act provides for establishment of Appellate Tribunal known as TDSAT.
In terms of Section 14(a)(iii) inter alia it is entitled to adjudicate any
dispute between a service provider and/ or consumer. TRAI Act, in terms of the
proviso appended to Section 14, excludes the applicability of the said clause
in respect of matters relating to the complaint of an individual consumer
maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal
Commission or the National Consumer Redressal Commission established under
Section 9 of the 1986 Act. Clause (b) of Section 14 empowers TDSAT to hear and
dispose of an appeal against any direction, decision or order of TRAI under the
therefore, exercises two different jurisdictions, viz., one, original and
another, appellate. Exercise of its original jurisdiction is an adjudicatory
function whereas its appellate function is to hear appeal(s) against an order
of TRAI which may or may not essentially be an adjudicatory one.
have noticed hereinbefore that the members of Associations take TV signals
either from Respondents Broadcasters under their respective contracts or agreements
or through cable operators. Whereas in the former case, there exists a privity
of contract between the broadcasters and the owners of the hotels, the owners
of the hotels admittedly would not come within the purview of definition of MSOs.
The owners of the hotels take TV signals for their customers/ guests. While
doing so, they inter alia provide services to their customers. An owner of a
hotel provides various amenities to its customers such as beds, meals, fans,
television, etc. Making a provision for extending such facilities or amenities
to the boarders would not constitute a sale by an owner to a guest. The owners
of the hotels take TV signals from the broadcasters in the same manner as they
take supply of electrical energy from the licensees. A guest may use an
electrical appliance. The same would not constitute the sale of electricity by
the hotel to him. For the said purpose, the 'consumer' and 'subscriber' would
continue to be the hotel and its management. Similarly, if a television set is
provided in all the rooms, as part of the services rendered by the management
by way of an amenity, wherefor the guests are not charged separately, the same
would not convert the guests staying in a hotel into consumers or subscribers.
They do not have any privity of contract with broadcasters or cable operators.
The identity of the guests is not known to the broadcasters or cable operators.
A guest may not watch TV or in fact the room may remain unoccupied but the
amount under the contract by the owners of the hotels whether with the
broadcasters or cable operators remains unchanged. We, therefore, are of the
opinion that the members of the appellants' associations are consumers.
question in regard to supply of food to a guest by the owner of a hotel whether
constitutes a sale or not came up for consideration before this Court in The
State of Punjab v. M/s. Associated Hotels of India Ltd. [(1972) 1 SCC 472]
wherein it was held:
precisely then is the nature of the transaction and the intention of the
parties where a hotelier receives a guest in his hotel? Is there in that
transaction an intention to sell him food contained in the meals served to him
during his stay in the hotel? It stands to reason that during such stay a well
equipped hotel would have to furnish a number of amenities to render the
customer's stay comfortable. In the supply of such amenities do the hotelier
and his customer enter into several contracts every time an amenity is
furnished? When a traveller, by plane or by steam- ship, purchases his
passage-ticket, the transaction is one for his passage from one place to
another. If, in the course of carrying out that transaction, the traveller is
supplied with drinks or meals or cigarettes, no one would think that the
transaction involves separate sales each time any of those things is supplied.
The transaction is essentially one of carrying the passenger to his destination
and if in performance of the contract of carriage something is supplied to him,
such supply is only incidental to that services, not changing either the
pattern or the nature of the contract. Similarly, when clothes are given for
washing to a laundery, there is a transaction which essentially involves work
or service, and if the launderyman stitches a button to a garment which has
fallen off, there is no sale of the button or the thread. A number of such
cases involving incidental uses of materials can be cited, none of which can be
said to involve a sale as part of the main transaction." Supply of food to
non-resident was held not to be a sale in Northren India Caterers (India) Ltd.
v. Lt. Governor of Delhi [(1978) 4 SCC 36]. An endeavour was made to get the
said decision reviewed but this Court in M/s. Northern India Caterers (India)
Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167] rejected the
one thing to say that TDSAT shall not exercise its original jurisdiction in
respect of a matter covered by the 1986 Act but it is another thing to say that
the members of the Associations are not consumers at all.
of the 1986 Act have been referred to for excluding the application under
Clause (a) of Section 14 of TRAI Act. While the jurisdiction is sought to be
taken away, a strict construction thereof is essential. What is excluded is a
complaint of an individual consumer and not a group of consumers. Thus,
indisputably, TDSAT would be entitled to entertain a complaint by a group of
consumers against a service provider.
therefore, idle to contend that the definition of 'consumer' as contained in
Section 2(1)(d) of the 1986 Act would be attracted in a case of this nature. We
are unable to accept the submission of Mr. Ashok Desai, that as in terms of
Section 2(1)(d) of the 1986 Act 'consumer' does not include a person who
obtains goods or services for any commercial purpose, the hotels would not come
within the definition of 'consumer'. The said submission of Mr. Desai, in our
opinion, is wholly misconceived. Reliance has been placed on Morgan Stanley
Mutual Fund v. Kartick Das [(1994) 4 SCC 225] wherein it was opined that the
meaning of the word 'consumer' was broadly stated in the above definition so as
to include anyone who consumes goods or services at the end of the chain of
production. The said decision has no application.
has been defined in the notification dated 31.12.2004. It did not make any
distinction between an ordinary cable consumer and a commercial cable consumer.
TRAI itself said so in its consultation paper stating:
the Recommendations on Broadcasting and Distribution of TV channels the
Authority had also indicated that the ceiling shall be reviewed periodically to
make adjustment for inflation. It was also stated that the price regulation is
only intended to be temporary and as soon as there is evidence that effective
competition exists in a particular area price regulation will be withdrawn.
Tariff Order did not define the word "cable subscribers" and no
distinction was expressly provided between ordinary cable consumer and a
commercial cable consumer." A 'consumer' furthermore has been defined in
the Register of Interconnect Agreements (Broadcasting and Cable Services)
Regulation, 2004 issued by TRAI on 31.12.2004. Such regulations having been
made in terms of Section 36 of TRAI Act, the term 'consumer' defined therein to
mean any person who is a subscriber of any broadcasting service in the country
would, in our opinion, would prevail over the definition of a 'consumer' under
the 1986 Act.
attention, however, was drawn to Explanatory Memorandum appended to the Tariff
Order of 1.10.2004. Only a recommendation was made therein that it was not
possible to have uniformity of rates for subscribers but it is not in dispute
that commercial consumers have not been taken out of the purview of TRAI Act.
It may be that in several other sectors as, for example, electricity or water,
different tariffs exist for domestic consumers or commercial consumers but it
is beyond any cavil that the tariff of the said essential commodities are fixed
under statutes. So long, TRAI does not itself make any distinction between
consumers and consumers and does not fix different tariffs, the question that a
category of users being commercial users/ subscribers being identified so as to
exclude the applicability of TRAI Act does not and cannot arise. The Tariff
Orders of 2004 did not define the words "cable subscribers" and,
thus, no distinction was expressly provided between ordinary cable consumer and
commercial cable consumer.
one thing to say that TRAI recognises the need for making such a distinction
probably pursuant to or in furtherance of the observations made by TDSAT but therefor
a final decision is yet to be taken. The notification dated 7.03.2006 has been
issued as an interim measure. By reason of the said notification, broadcasters
have been injuncted from increasing the rates.
long a final determination in the matter does not take place, not only the
members of Appellants Associations but also a vast number of similar
commercial subscribers would remain protected.
not disputed that the nature of supply of TV signals is not distinct and
different. It is same both for domestic consumers and commercial consumers.
one thing to say that TV signals are being used for commercial purpose but it
is a question which TRAI has to address itself independently and in exercise of
its power under Section 11(2) of TRAI Act. The same having not been done till
date, in our opinion, it cannot be contended that a commercial consumer is not
has been defined in Section 2(i) of the 1995 Act to mean a person who receives
the signals of cable television network at a place indicated by him to the
cable operator, without further transmitting to any other persons.
members of Appellants Associations stricto sensu do not retransmit the signals
to any other person. It merely makes the services available to its own guests,
which in other words, would mean to itself. If the amenities provided for by
the management as a subscriber under TRAI Act is inseparable from the other
amenities provided to a boarder of a hotel, it remains a subscriber by reason
of making the services available in each of the rooms of the hotel. It is not
transmitting the signals of cable television network to any other persons. TRAI
Act and various orders made thereunder are required to be read conjointly with
a view to give harmonious and purposive construction thereto.
attempt has been made by Mr. Desai to contend that the 1986 Act is a cognate
legislation. Section 2(2) of TRAI Act provides that words and expression used
and not defined in the said Act but defined in Indian Telegraph Act, 1885 or
the Indian Wireless Telegraphy Act, 1933 shall have the meanings respectively
assigned to them in those Acts. Thus, meaning of only such words which are not
defined under TRAI Act but defined under those Acts could be taken into
consideration. It is furthermore well known that the definition of a term in
one statute cannot be used as a guide for construction of a same term in another
statute particularly in a case where statutes have been enacted for different
Khemu Gawali v. Deputy Commissioner of Police, Bombay and another [AIR 1956 SC 559], a Constitution Bench of this
has been repeatedly said by this Court that it is not safe to pronounce on the
provisions of one Act with reference to decisions dealing with other Acts which
may not be in pari materia." In M/s. MSCO. Pvt. Ltd. v. Union of India and
Others [(1985) 1 SCC 51], this Court held:
The expression 'industry' has many meanings.
means 'skill', 'ingenuity', 'dexterity', 'diligence', 'systematic work or labour',
'habitual employment in the productive arts', 'manufacturing establishment'ect.
But while construing a word which occurs in a statute or a statutory instrument
in the absence of any definition in that very document it must be given the
same meaning which it receives in ordinary parlance or understood in the sense
in which people conversant with the subject matter of the statute or statutory
instrument understand it. It is hazardous to interpret a word in accordance
with its definition in another statute or statutory instrument and more so when
such statute or statutory instrument is not dealing with any cognate subject..."
In Maheshwari Fish Seed Farm v. T.N. Electricity Board and Another [(2004) 4
SCC 705], this Court in regard to different meanings of 'agriculture' as
noticed in different decisions held:
reading of the judgment shows a research by looking into several authorities,
meaning assigned by dictionaries and finding out how the term is understood in
common parlance. The Court held that the term 'agriculture' has been defined in
various dictionaries both in the narrow sense and in the wider sense. In the
narrow sense agriculture is the cultivation of the field. In the wider sense it
comprises of all activities in relation to the land including horticulture,
forestry, breeding and rearing of livestock, dairying, butter and cheese-
making, husbandry etc. Whether the narrower or the wider sense of the term
'agriculture' should be adopted in a particular case depends not only upon the
provisions of the various statutes in which the same occurs but also upon the
facts and circumstances of each case. The definition of the term in one statute
does not afford a guide to the construction of the same term in another statute
and the sense in which the term has been understood in the several statutes
does not necessarily throw any light on the manner in which the term should be
understood generally." In Tata Consultancy Services v. State of A.P. [(2005) 1 SCC 308], this Court held:
Copyright Act and the Sales Tax Act are also not statutes in pari materia and
as such the definition contained in the former should not be applied in the
latter. [See Jagatram Ahuja v. Commr. of Gift-tax, Hyderabad].
absence of incorporation or reference, it is trite that it is not permissible
to interpret a word in accordance with its definition in other statute and more
so when the same is not dealing with any cognate subject" Reliance has
been placed upon a decision of this Court in Deputy Chief Controller of Imports
and Exports, New Delhi v. K.T. Kosalram and Others [(1970) 3 SCC 82] wherein
the provisions of the Indian Tariff Act, 1934 were called in aid to interpret
import licence granted under the Imports and Exports Control Act, 1947 on the
premise that both relates to the larger import scheme of the Government of
India. In that case, the Central Government made Imports Control Order under
the Imports and Exports Control Act. Item No. 67(1) in Schedule I, Part V
contained a very large number of various components of a printing press
corresponding to Item No.
of the Indian Tariff Act which consolidates the law relating to customs duties.
This Court opined that although dictionary meanings are helpful in
understanding the general sense of the word but it cannot control a situation
where the scheme of the statutes or the instrument considered as a whole
clearly conveys a somewhat different shade of meaning. In that fact situation,
it was opined:
is not always a safe way to construe a statute or a contract by dividing it by
a process of etymological dissection and after separating words from their
context to give each word some particular definition given by lexicographers
and then to reconstruct the instrument upon the basis of those definitions.
What particular meaning should be attached to words and phrases in a given
instrument is usually to be gathered from the context, the nature of the
subject matter, the purpose or the intention of the author and the effect of
giving to them one or the other permissible meaning on the object to be
are after all used merely as a vehicle to convey the idea of the speaker or the
writer and the words have naturally, therefore, to be so construed as to fit in
with the idea which emerges on a consideration of the entire context. Each word
is but a symbol which may stand for one or a number of objects" In Shree Meenakshi
Mills Ltd. v. Union of India [(1974) 1 SCC 468], the Cotton Textiles Cess Act,
1948 and the Cotton Textiles Companies (Management of Undertakings and
Liquidation or Reconstruction) Act, 1967 were held to be cognate legislations.
TRAI Act and the 1986 Act are not in pari materia. They have been enacted for
different purposes and in that view of the matter even Sirsilk Ltd. v. Textiles
Committee and Others [1989 Supp (1) SCC 168] would have no application in the
reliance has been placed on some purported agreements entered into by and
between the broadcasters and the cable operators to contend that cable
operators were authorised only to supply signals to private residential
households or private residential multi-unit dwellings and not to commercial
users. TDSAT has not gone into that aspect of the matter.
seriously disputed that such agreements exist. In any event such a question
cannot be gone into by us as cable operators are not parties in these appeals.
therefore, are of the opinion that it would not be correct to contend that the
commercial cable subscribers would be outside the purview of regulatory
jurisdiction of TRAI. If such a contention is accepted, the purport and object
for which the TRAI Act was enacted would be defeated.
with great respect, therefore, was not correct in opining that the regulators
should also consider whether it is necessary or not to fix the tariff for
commercial purposes in order to bring greater degree of clarity and to avoid
any conflicts and disputes arising in this regard.
exercising its original jurisdiction, again with respect, TDSAT should not have
made such observations. This Court in K. Kankarathnamma and Others v. State of
Andhra Pradesh [(1964) 6 SCR 294 at 298], held:
jurisdiction is given by a statute and such jurisdiction is only give upon
certain specified terms contained therein, it is a universal principle that
those terms should also be complied with, in order to create and raise the
jurisdiction, and if they are not complied with the jurisdiction does not
arise..." It is also well settled that when a power is required to be
exercised in a particular manner, the same has to be exercised in that manner
or not at all.
having not exercised its appellate jurisdiction, in our opinion, neither could
have issued any direction nor TRAI could abide thereby. [See Mohinder Singh
Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors., AIR
1978 SC 851, Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16, Hindustan Petroleum Corpn. Ltd. v. Darius Shapur
Chenai, (2005) 7 SCC 627 and R.S. Garg v. State of U.P. and Others, 2006 (7)
SCALE 405] We are, however, sure that TRAI while exercising its jurisdiction
under Sub-section (2) of Section 11 of TRAI Act shall proceed to exercise its
jurisdiction without in any way being influenced by the said observations.
must apply its mind independently.
be true that TRAI in its Tariff Order dated 7.3.2006 sought to define ordinary
cable subscribers and cable subscribers separately but the same is yet to be
adopted finally. It is not conclusive. It must while laying down new tariff
take into consideration all the pros and cons of the matter. It must apply its
mind afresh as regards not only the justifiability thereof but also the
exercises a broad jurisdiction. Its jurisdiction is not only to fix tariff but
also laying down terms and conditions for providing services.
facie, it can fix norms and the mode and manner in which a consumer would get
role of a regulator may be varied. A regulation may provide for cost, supply of
service on non-discriminatory basis, the mode and manner of supply making
provisions for fair competition providing for label playing field, protection
of consumers interest, prevention of monopoly. The services to be provided for
through the cable operators are also recognised.
making the regulations, several factors are, thus required to be taken into
account. The interest of one of the players in the field would not be of taken
into consideration throwing the interest of others to the wind.
notice that the Tariff Order of 2004 which came into force from 15.01.2004
whereby the price prevalent as on 26.12.2003 was to be the ceiling in respect
of charges payable by :
Cable subscribers to cable operator;
Cable operators to Multi Service Operators/ Broadcasters (including their
authorized distribution agencies); and
Multi Service Operators to Broadcasters (including their authorized
members of Hotel & Restaurant Association would be protected thereby, the
Tariff Order dated 7.03.2006 protects all as in terms thereof Sub-clause (f) of
Clause 2 of the Telecommunication (Broadcasting and Cable) Services (Second)
Tariff Order, 2004 was substituted by the following:
for all others except commercial cable subscribers, the rates (excluding taxes)
payable by one party to the other by virtue of the written/oral agreement
prevalent on 26th
December 2003. The
principle applicable in the written/oral agreement prevalent on 26th December 2003, should be applied for determining
the scope of the term "rates"
for commercial cable subscribers, the rates (excluding taxes) payable by one
party to the other by virtue of the written/oral agreement prevalent on 1st
March 2006. The principle applicable in the written/oral agreement prevalent
on1st March 2006, should be applied for determining the scope of the term
"rates"" Thus, it covers both the situations.
now also not in dispute, as would appear from the Explanatory Memorandum issued
by TRAI, that the interim protection has been extended also to commercial
contention has been raised that the freeze/ ceiling order did not apply to the
new channels or in a case the free channels are converted into pay channels.
However, TDSAT did not go into the said question.
regard to the order proposed to be passed, we do not intend to also determine
the said question for the first time. We may notice that, except a few, the
members of Hotel Associations have entered into contract directly with the
broadcasters. Mr. Venugopal agrees that all those owners of the hotel who had
set up Head End shall continue to pay the amount which was payable as on
1.10.2004. If there are arrears, the same must be cleared within eight weeks
from date. So far as those who are taking signals through cable operators,
keeping in view the fact that there are certain disputed questions of fact and
furthermore in view of the fact that they have not disclosed the name of the
cable operators except 314 hotels and some restaurants, they may furnish the
therefore, direct those members who are taking signals through cable operators
to disclose the details as directed by TDSAT within three weeks from date. Cable
operators, if TDSAT so directs, may be impleaded as parties and/ or some of
them in representative capacities. The matter in relation to those who are
taking supply through the cable operators is being remitted to TDSAT. It would
be open to the parties to adduce additional evidences. Until an appropriate
order is passed by TDSAT, by way of an interim measure, the members of
Appellants Hotel & Restuarant Association and those members of Hotel
Association who are taking supply through cable operators shall pay in terms of
the Order dated 7.03.2006 but the same shall be subject to the ultimate order
that may be passed by TDSAT. All other informations, if any, as directed by
TDSAT, shall be furnished.
On 19th October, 2006, we have passed the following
appears that by our order dated 28.4.2006, a Bench of this Court directed that
status-quo, as it existed on that date, shall be maintained. It is stated at
the Bar that pursuant to and in furtherance of the said order the TRAI has not
been carrying out the processes for framing the tariff in terms of Section 11
of the Telecom Regulatory Authority of India Act.
us Mr. Sanjay Kapur, learned counsel appearing for TRAI submitted that TRAI has
already issued consultation papers and processes for framing a tariff is likely
to be over within one month from date.
modification of our said order dated 28.4.2006 direct the TRAI to carry out the
processes for framing the tariff. While doing so, it must exercise its
jurisdiction under Section 11 of the Act independently and not relying on or on
the basis of any observation made by the TDSAT to this effect. It goes without
saying that all the procedures required for framing the said tariff shall be
been brought to our notice that even in the consultation paper some references
have been made to the recommendations made by the TDSAT. In view of our
directions issued hereinbefore a fresh consultation paper need not be issued.
We, however, make it clear that in framing the actual tariff the provisions of
Section 11 of the Act shall be complied with and all procedures laid down in
relation thereto shall be followed.
also furthermore direct that by reason of the order of grant of status-quo, we
have not stayed the criminal proceedings." We reiterate the same.
event TRAI frames tariffs, the members of Appellants Associations would be
entitled to prefer appeals there against. All contentions in that behalf are
left open. The appeals are allowed with the aforementioned observations and
directions. No costs.
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