TDSAT adjourns DTH licence fee cases sine die till HCs decide

MUMBAI: The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has adjourned the direct to home (DTH) licence fee matters sine die as it wants similar matters pending before High Courts to be decided first.

The tribunal also asked the Union of India to take required steps for early hearing of the Writ Petitions in the High Courts and only then move this Tribunal for expeditious disposal of these petitions.

The DTH operators had moved TDSAT in 2014 after the ministry of information and broadcasting (MIB) had sent notices asking them to pay licence fee totaling Rs 2,066 crore (Rs 20.66 billion) within 15 days.

Dish TV was asked to pay Rs 625 crore followed by Tata Sky (Rs 620 crore), Airtel Digital TV (Rs 298 crore), Sun Direct (Rs 230 crore), Videocon d2h (Rs 157 crore), and Reliance Digital TV (Rs 136 crore).

The DTH operators had also challenged the MIB’s decision to collect licence fee based on adjusted gross revenue (AGR) in 2009.

The licence fee matter includes petitions of 2009 as well as of 2014. The dispute relates to demand for the licence fee on the basis of gross revenue, in particular as to what shall constitute gross revenue.

The High Court of Jammu & Kashmir and High Court of Kerala have passed interim orders restraining the MIB from taking any coercive steps for realisation of the licence fee demands.

The tribunal noted that initially, it was inclined to hear these matters for final disposal but on looking at the scope of writ petitions which are pending and the interim orders by the High Courts, it is of the considered view that it will not be in a position to do justice by addressing all the relevant issues because the issues which are pending before the High Courts go to the root of the matter.

It further stated that a proper adjudication by the tribunal may require us to overlook the pendency of those petitions but that would not be proper or fair.

“In view of the aforesaid facts and circumstances, the hearing of these petitions is adjourned sine die and shall be resumed on mentioning by either of the parties after the validity of relevant Articles and other related issues are decided by the High Courts,” the tribunal said in its order.

The tribunal also expressed dissatisfaction over the fact that the Union of India for moving the tribunal for early disposal of the matter rather than moving the High Courts.

It also noted that the High Courts are Constitutional Courts and therefore adjudication by the tribunal on limited issues such as quantum and interest will be ineffective when the validity of demand itself is difficult to be determined till the writ petitions remain pending.

The DTH operators also argued that the Union of India represented by the MIB should not insist on early hearing of these petitions because the issues relating to revenue from non-licence activities and validity/vires of Articles 3.1, 3.1.1 and 3.1.2 of the license agreement have not attained finality even with judgment of the Apex Court in the case of Union of India & Anr. Vs. Association of Unified Telecom Service Providers of India (2011) 10SCC 543 and a later order dated 27.8.2015 whereby the Supreme Court dismissed Tata Sky’s Civil Appeal No. 1972-73 of 2010 and allowed respondents Civil Appeal No. 3549 of 2009.

They further added that the Union of India has not even filed a reply in the writ petitions nor taken steps for early hearing before the High Courts.

Hence, it was submitted that only the petition of Tata Sky may be heard fully and disposed of in view of its peculiar stand and not the other petitions because no effective judgment can be passed without ignoring the pendency of the Writ Petitions and the interim orders passed therein.

However, the Tata Sky counsel made a prayer not to separate that petition and to keep it pending for hearing along with other petitions. The tribunal allowed Tata Sky’s prayer.

The counsel for the Union of India had submitted that these petitions should be heard and finally disposed of so that interim order ceases to operate on account of the final order and thereafter the law can be finally decided by the apex court in case appeals will be preferred by the affected parties.

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