STAR INDIA P LTD Vs. TELECOM REGULATORY AUTHORITY OF INDIA
HIGH COURT OF DELHI
STAR INDIA PVT LTD.
TELECOM REGULATORY AUTHORITY OF INDIA
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VIKRAMAJIT SEN, J. -
(1.) In Petition No.I (CW 24105/2005) Star India Pvt. Ltd. has prayed for a certiorari quashing the proviso to Section 2 (1) (k) of the TRAI Act; a certiorari for quashing Tariff Orders dated 15.1.2004, 1.10.2004, 1.12.2004 and 29.11.2005 and the Telecommunication (Broadcasting and Cable Services) Interconnection Regulation, 2004 It has further been prayed that the Court should declare that TRAI is not competent to regulate broadcasting services as also another declaration to the effect that these impugned Orders and impugned Interconnect Regulations are violative of Articles 14 and 19 (1) (a) and (g) as also Articles 301 to 307 of the Constitution. In Petition No.II (CW 5332/2006) Star India Private Limited has prayed for the setting aside an order of the Telecom Disputes Settlement and Appellate Tribunal in Appeal No.12(C) of 2005 titled Grahak Hitvardhani Sarvajanik Sanstha -vs- TRAI and (b) issuance of a writ of certiorari quashing the Telecommunication (Broadcasting and Cable) Services (Second) Tariff (Fourth Amendment) Order 2006 notified on 7.3.2006. In Petition No.III (CW 14877-78/2006) Star India Private Limited has prayed that the Telecommunication (Broadcasting and Cable) Services (Third) (CAS Area) Tariff Order 2006 and further that the Telecommunication (Broadcasting and Cable Services) (Second Amendment) Regulation, 2006 dated 24.8.2006 be struck down being violative of Articles 14, 19, 301 to 307 of the Constitution. In Petition No.IV (CW 16913-14/2006) filed by Set Discovery Private Limited the following prayers have been made:
a) Issue writ, order or direction to declare that the TRAI has no jurisdiction or power under Section 11(2) of the TRAI Act to fix tariffs for Broadcasters; b) Issue writ, order or direction to declare that the TRAI has no jurisdiction or power under Section 11(2) of the TRAI Act to strike down S. 11(2) of the TRAI Act; c) Issue an appropriate writ, order or direction to quash the Notification dated 31.07.06 (F.No. 9/16/2004-BPandL [Vol. IV] issued by Ministry of Information and Broadcasting; d) Strike down clauses 3.3 and 9 to 12 of the Telecommunication (Broadcasting and Cable Service) Interconnection (Third Amendment) Regulation, 2006 (10 of 2006) dated 04.09.2006 (No. 6-4/2006-BandCS) as amended by the Telecom Regulatory Authority of India.
(2.) So far as Petition No.1 is concerned the prayer for quashing Tariff Orders was correctly not pressed before us. So far as Petition No.2 is concerned the Order in Appeal No.12(C) of 2005 was not pressed. Since the Respondents have asserted that the Petitions are not maintainable, we shall immediately deal with that point.
(3.) Mr. P.P. Malhotra, learned Additional Solicitor General and Mr. Rakesh Dwivedi, learned Senior Counsel for Telecom Regulatory Authority of India(TRAI), have laid a threshold challenge to the very maintainability of the present Petitions seeking the enforcement of the Fundamental Rights enshrined in Article 19 of the Constitution of India. They contend that the very least expected of the Petitioners was to plead facts establishing that they are Indian citizens. Their argument is that the Petitioners have deliberately refrained from doing so since they are in fact foreign companies transacting business in India. Indubitably the burden to clarify their status as citizens of India reposed entirely on the Petitioners and they have miserably failed to plead facts and figures establishing their eligibility. The nature of the shareholding of the Petitioners has been provided to us by the Respondents in terms of the affidavits dated 21.2.2007 filed on behalf of TRAI. So far as Star India Private Limited is concerned it appears that it is completely (98.85899 per cent) held by a foreign company named Buzzer Investments Ltd. registered in Mauritius, which in turn is owned by The News Corporation Ltd. which is registered in Australia. Star India Private Limited is the sole petitioner in WP(C) Nos.24105/2005 and 5332/2006. Learned ASG has also emphasized the fact that these petitions have been signed and verified by Mr. Himavat Chaudhuri, in the capacity of its Associate General Counsel and Vice-President(Legal). The status in the context of Article 19 has not been elucidated upon in the Petitions. WP(C) No.14877-78/2005 has also been filed by Star India Private Limited through its General Counsel Head of Legal Affairs who has verified the Petition and is also Petitioner No.2. Remarkably, the Petition has not been signed by him. In the Petition it has been vaguely averred that Star India Private Limited is a company incorporated under the Companies Act, 1956, engaged in the business of distributing television channels and that Mr. Ajay K. Sharma is its shareholder. The details of the extended shareholding have not been furnished to the Court. Learned counsel for the Respondents have justifiably also underscored the fact that the petitions do not disclose the manner in which the Fundamental Rights of Mr. Sharma have been infringed.;
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