w w w . L a w y e r S e r v i c e s . i n

M/s Nirman & Associates Pvt. Ltd. v/s STAR DEN Media Services Pvt. Ltd.

    R.A. No.8 of 2010 in Petition No.157 (C) of 2009

    Decided On, 02 November 2010

    At, Telecom Disputes Settlement Appellate Tribunal New Delhi

    By, MEMBER

    For the Petitioner: Navin Chawla, Yoginder Handoo, Advocates. For the Respondent: Gopal Jain, Kaushik Mishra, Advocates.

Judgment Text

G.D. Gaiha, Member

This Review Application has been filed under section 16 (f) of the Telecom Regulatory Authority of India act 1997, read with Order 47 Rule 1 of the Code of Civil Procedure, 1908.

2. The petitioner is aggrieved by the judgment and order dated 30th April 2010 passed by this Tribunal alleging a mistake/ error on the face of the record. The petitioner has based its observation on the interim report and the final survey report submitted by the learned Advocate Commissioner, which has not been disputed by it at any stage of its pleadings and arguments.

3. Para 18 of the order dated 30.4.2010, as set out below, has been the main cause of the filing of this Review Petition by the Petitioner:

?Para 18. We have gone through the survey report. The concluding part of the survey report, which has summarized the total number of subscribers with 17 operators, having been partially surveyed to be 4664. Since this survey has been carried out partially in the respect of 17 cable operators, we cannot arrive at any firm opinion about the subscriber base on the basis thereof. We had been provided by the petitioner, its own subscriber base in respect of 17 cable operators being 4306. This is an admitted figure. However, this is not a negotiated figure which should be in respect of a non-CAS area. The learned counsel for the petitioner would contend that this is the total connectivity at almost 100% declaration as per the survey carried out on door to door basis.?

4. The learned counsel for the petitioner would contend that the 4664 subscriber base, as recorded in the impugned judgment, is of the rival operator i.e. Assam Cable Communications and not that of the petitioner. This is clearly mentioned in the interim survey report of 7.12.2009 as well as final survey report dated 20.1.2010. The learned counsel would further contend that the petitioner?s own 17 cable operators having a subscriber base of 4306, is not a correct statement. Since the subscriber base, as submitted by it in its SLR on 21.4.2009 is only 2099 and not 4306. It is argued that this figure of 4306 subscriber base, as admitted figure should be corrected to a figure of 3614 as arrived at by the learned Advocate Commissioner on the basis of survey carried out by him. These contentions of the learned counsel for the petitioner, as expressed above are, therefore, the main cause of our considering the survey report.

5. It is, therefore, necessary that we should bring out the complete analysis of the final survey report, on the basis of which we arrived at the figure of 4306 as the admitted subscriber base of the petitioner.

6. The daily survey sheets commencing from the page No. 138 of the detailed survey report up to the page 179 have been gone through and each count of the subscriber as admitted by the representative of the petitioner as well as well as representative of the respondent has been accounted for to arrive at a figure of 1547 subscribers who are being supplied signals directly by the petitioner. This number cannot be disputed, as this has been arrived at on the basis of door to door survey by the learned advocate Commissioner and these subscribers do not belong to any cable operator, which have been owned by the petitioner at various stages during its pleadings.

7. At page 26 of the detailed survey report, the learned Advocate Commissioner has given a count of the number of connections which are being supplied signals to the petitioner in different hotels. This figure is also not possible to be disputed because an analysis of this figure has been done at page 136 and page 137 of the detailed survey report. Since this survey report has not been disputed or challenged by the petitioner at any stage of its pleadings, we presume that the figures mentioned herein can be adopted from the point of view of arriving at the admitted figure of the subscriber base of the petitioner.

8. At page 28 of the detailed survey report, we find a total subscriber base of 2099, which is the subscriber base of the 9 cable operators, as affiliates of the petitioner and this figure has also not been disputed by the petitioner.

9. At page 2 para 10 of survey report, we find a mention of one of the cable operators Sat Cable Vision. According to the declaration made by this cable operator, it has a total connectivity of 387 connections, including 62 HITS connections. Now, since the HITS platform is no longer working, we can safely count it to be, in the account of the petitioner within the total connections of 387 of this cable operator. This cable operator has been picked up, since its connectivity has not been accounted for in the survey report at any other place.

10. At page 3 para 12, we find a mention of another cable operator by the name Unique Channel. The respondent has estimated a total connectivity for this cable operator as 2000 while the cable operator has declared a total connectivity of 550 subscribers only. The learned advocate Commissioner has mentioned that since it did not have any other relevant data, he has presumed the connectivity of this cable operator as 550 and this number of the subscriber can be safely counted as the subscriber base of the petitioner. This cable operator has again been picked up from the survey report since its connectivity has not been accounted for at any other place in his survey report.

11. At page 23, we again find the mention of a new cable operator by the name Crystal Wire Base Communication. A connectivity of 96 numbers of subscribers has been admitted by petitioner himself through an e-mail dated 23 December 2009 sent to the learned advocate Commissioner.

12. At page 16, we again find a mention of four cable operators namely (a) RBR cable network (b) Kharguli Siti Digital (c) S H Communication (d) and PS Digital Network having a connectivity of 182, 24, 21, 125 respectively. Since these cable operators do not figure out anywhere in the account of the total subscribers of the petitioner, therefore, the subscriber base of these cable operators have also been taken as an admitted figure on behalf of the petitioner. Incidentally the 4 cable operators have also been declared as affiliates of the petitioner by the petitioner itself on 19th October 2009 and, therefore, to adopt the connectivity of these cable operators in the count of total connectivity of the admitted figure by the petitioner is quite justified. The total connectivity thus arrived at is 4062 as admitted subscriber base as per the survey report.

13. As regards the subscriber base of 4664 as mentioned in our order, we have not attributed it to the petitione

Please Login To View The Full Judgment!

r and it has been a figure for comparison of the subscriber base of petitioner with a similarly placed MSO working in the same area and, therefore, there is no change required in this figure in our orders. 14. The figure of 4062 is, therefore, different than 4306 and as mentioned in our order of 30.4.2010, therefore, there is an ex-facie mistake in mentioning this figure as the admitted figure, however we proceed to hold that it does not affect the ultimate result of the case. We also record that the admitted figure is 4062 and not 3614 as pleaded by petitioner in its Review Application. 15. This Review Application filed by the petitioner is disposed of accordingly and the order dated 30.4.2010 is modified accordingly.