MALDA SATELITE LINK THROUGH ITS SECRETARY SHRI MALAY SARKAR Vs. ZEE TURNER LIMITED THROUGH THE REGIONAL MANAGER AND PIONEER TRADERS

JUDGEMENT

(1.) THE Petitioner in this petition is a provider of cable services in District Malda, West Bengal. It contends that it had set up the network on 24th September, 2002 after registering itself as a cable operator in the said District. It is stated that Respondent No. 1 is a broadcaster and Respondent No. 2 is an authorized distributor of Respondent No. 1. It is further stated that the Petitioner entered into a subscription agreement with Respondent No. 1 for receiving various channels of Respondent No. 1 for redistribution to its subscribers. It is further stated that when the agreement signed by the Petitioner with the Respondent No. 1 on 24th September, 2002 came to an end, Petitioner had entered into a fresh agreement on 26th December, 2004 for receiving the signals of the 1st Respondent. THE allegation of the Petitioner in this petition is that the Respondents contrary to the terms and conditions of the agreement and the Interconnection Regulations framed by the TRAI, disconnected the signals of the 1st Respondent's channels w.e.f. 19th February, 2005. THE Petitioner, however, admits that before the disconnection, the 1st Respondent had effected a publication on 18th February, 2005 by which it was intimated in the local news paper that the signals are being disconnected because the Petitioner has failed to enter into the new agreement after the expiry of the old one. In this petition the Petitioner submits that the said allegation is totally false since it had already entered into an agreement on 25th / 26th December, 2004. THE Petitioner also contends that when it entered into an agreement in November, 2002, it had agreed on a subscriber base of 1200 consumers and at a rate of Rs. 42.50 per subscriber per bouquet of signals. It also contends that during the currency of the said agreement because Petitioner did not do well in business, the subscriber base was reduced to 900 and Petitioner was paying subscription on the basis of 900 amounting to Rs. 49,500/- per month. THE Petitioner has produced certain deposit slips in support of the payment of the above-mentioned sum. THE Petitioner also contends that Respondent started pressurizing the Petitioner to increase the subscriber base. It is also alleged that the 1st Respondent unilaterally tried to increase the agreed amount payable for the bouquet of channels on the basis of the TRAI's "THE Telecommunication (Broadcasting and Cable) Services (Second) Tariff Order 2004" against which the Petitioner represented to the Respondent not to increase the subscriber base or the subscription payable. In spite of the same, the Petitioner complains that the Respondents have discontinued the supply of signals. It is in this factual background the Petitioner has filed this Petition seeking appropriate orders for quashing and declaring the public notice dated 18th February, 2005 published by the Respondents as being illegal and for further directions for restoration of the signals of the 1st Respondent as also for a direction to Respondent No. 1 to charge appropriate rate of subscription in accordance with the Tariff Orders of TRAI dated 15.04.2004 and 01.12.2004.

(2.) In response to the allegations made in this Petition the 1st Respondent who is the contesting respondent has filed its reply and has specifically denied that after the first subscription agreement which expired in the year 2003 there has been any fresh agreement between the parties. It contends that after the said agreement expired, Petitioner was receiving signals of 1st Respondent's bouquet from 1.4.2004 at Rs. 55/- per month, which was subsequently enhanced w.e.f. 1.4.2005 to Rs. 58.85 per bouquet per subscriber per month because of the permitted enhancement of 7% by the TRAI. The Respondent submits in its reply that though in the subscription agreement entered into in the year 2002 the Petitioner had disclosed a subscriber base of 1200, the same was wholly incorrect. As a matter of fact, it had a much larger subscriber base, which fact was not disclosed by the Petitioner and the 1st Respondent came to know of the same only in September, 2004 that the Petitioner had a subscriber base of more than 3550 which figure was determined by the competent authority of the State of West Bengal for the purpose of levy of entertainment tax. In support of this contention, the 1st Respondent has also relied upon a letter dated 23rd September, 2004, a copy of which is found in the Petition papers wherein it is stated as follows:-

(3.) IN regard to the above alleged admission made to the tax authorities of the State, the petitioner contends that it was not an admission and it was only a narration of fact and subsequently higher authorities revised the said order on a petition filed by the petitioner and accepted the plea of the petitioner that its subscriber base had come down to 933 as per Memo No. 174 dated 06.05.2005 of the Agricultural INcome Tax Officer, Malda Range, Malda, a copy of which has been produced in the additional documents filed by the petitioner.