84. IN THE HIGH COURT OF DELHI AT NEW DELHI W.P. (C) No. 7496 of 2009 PRHvffi CHANNEL SOFTWARE COMMUNICATIONS (P) LTD. & ANR. . .... Petitioners Through: Ms. Meenakshi Arora, Advocate. versus PRASAR BHARATI CORPORATION (PCI) ...... Respondent Through: Mr. Rajeev Sharma, Advocate. CORAM: JUSTICE S. MURALIDHAR 1. Whether reporters of local paper may be allowed to see the order? f'/o 2. To be referred to the reporter or not? 3. Whether the order should be referred in the digest? t/ D ORDER 28.05.2010 W.P. (C) No. 7496 of2009 & CM No. 4717 of2009 1. Petitioner No.1 is a private limited company having its place of business in Mumbai and Petitioner No.2 is its director and shareholder. Petitioner No.1 is stated to be a leading television software production house and is credited with producing several popular serials and award winning shows on Indian television. The prayer in this writ petition is that the Respondent Prasar Bharati ·Corporation ('Prasar Bharati') should give effect to its policy decision dated 17th November 2005, whereby it changed the penalty formula for per point drop in the Television Viewership Rating ('TVR') of episodes from an applicable deduction of 50% of the production fee to Rs.40,000/- per point drop. 2. The background facts are that in September 2002 the Petitioner submitted to the Prasar Bharati a proposal for a serial named 'Phir Bhi Dil Hai Hindustani' under the Sponsored Category. The serial was W.P. (C) No.7496 of 2£?09 Pagel o/10 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified (-- approved by the Selection Committee of the Doordarshan and was slotted for telecast on the National Network on a bi-weekly basis for a period of 26 weeks. An agreement dated 8th October 2003 was entered into for this purpose. The Petitioner states that on account of a consistently high TVR in the initial stage\), the serial was given an extension of 302 episodes, i.e., 195 episodes under the Sponsored Category and a further extension of 1 06 episodes under the Self- Financed Commissioned Scheme (' SFCS ') of Doordarshan. A new SFCS was announced in June 2005 whereby instead of the producer paying telecast fee to Doordarshan for the programme, the producer was given a fixed amount per episode as an all inclusive production fee. All copyright in and to the programme vested with the Doordarshan. In other words, the programme became the exclusive property of Doordarshan in perpetuity. Doordarshan would also have exclusive marketing rights to the programme. The advertisement revenue would belong exclusively to Doordarshan. As regards the Petitioner's serial, Petitioner No. 1 was given an all inclusive production fee ofRs. 3 lakhs per episode. 3. Consequent upon the new SFCS, another agreement dated 26th August 2005 was entered into by the Petitioner No.1 with the Doordarshan. One of the clauses of this agreement stipulated that in the event of the TVRs falling below 6.0, Doordarshan would be liable to pay only 50% of the production fee to the producer. 4. On 17th November 2005, the Respondent approved an amendment to W.P. fCJ No.7496 of 2009 Page2of10 L the formula for calculation of payment to the producers. The method for calculation of the payments was re-fixed as under: "29. If the average TRP of the program during the month of telecast is more than the Minimum Benchmark TRP, the price payable for the episodes of the month (P) shall be calculated by the following formula: P=NxEP Where N - number of episodes telecast m the month. EP =Episodes Price mentioned in Clause-28. 30. If the average TRP of the program during the month of telecast falls below the Minimum Benchmark TRP, the price payable for episodes of the month (P) shall be calculated according to the following formula: P= [N x TEP] - [N x TRP] x PF] Where N-number of episodes telecast in the month. EP-Episode price determined in accordance with Clause 28. B=Benchmark TRP TRP=Actual average TRP of the programme during the month of telecast. PF=Penalty factor = xx IF Where IF IS the 'increment factor' determined in accordance with clause 31. Provided that this formula for calculation of price shall be applied to a new programme from the 14th episode onwards. For the removal of doubt, it is clarified that during the first 13 episodes, payment W.P. (C) No.7496 of2DD9 Page3of10 ,.-..... I m which the last episode of the program IS telecast." 5. The last episode of the serial was telecasted on 20th June 2006. 6. It is stated that in the months of April, May and June 2006 the average TVRs of all the serials aired on Doordarshan including that of the Petitioner, witnessed a drop for diverse reasons including cricket -", matches, cross channel competition, etc. As far as the Petitioner's '-""' serial is concerned its TVR came down from 7.5 to 5.5. It is the Petitioner's case that while Doordarshan deducted an amount of Rs.1,50,000/- per episode as penalty for the drop in its TVR for the aforementioned three months, payments of the producers of the other serials, the TVRs of which had also dropped in these three months, were released after deducting Rs.40,000/- per month. In other words, in relation to the serials of the other producers, the Respondent applied the revised policy announced on 17th November 2005 ·whereas for the Petitioner No.1 it stuck to the earlier policy. 7. The Petitioners state that if the revised policy were to apply, the Doordarshan was liable to pay Petitioner No.1 as under: For April and May 2006 [TVR between 5 and 6] (3 lac-40,000) x 17 episodes= Rs. 44,20,000/- For June 2006 [TVR between 4 and 5] (3 lac- 80,000) x 6 episodes =Rs. 13,20,000/- Total for 23 episodes in April, May, June Rs. (44,20,000 + 13,20,000) = Rs 57,50,000/- W.P. {C) No.7496 of 2009 Page5of10 r Differential sum of Rs.23,00,000/ (Rs.57,50,000- 34,50,000, already paid) 8. After unsuccessfully representing to the respondent seeking parity with other producers whose serials also suffered a drop in TVR during the aforementioned three months of April to June 2006, the petitioners filed the present petition. 9. In the counter affidavit filed, the stand of the Respondent is that the payments to Petitioner No.1 were strictly governed by the contract entered into with it. It is submitted that no direction can be issued in a writ petition either modifying the said contract or requiring the Respondent to enter into a fresh contract with the Petitioner on the basis of the revised penalty formula in terms of the policy dated 17th November 2005. The justification given for applying the revised formula to other television serials which also suffered a drop in the TVRs during the three months in question is that "in those cases, June 2006 onwards revised contracts were entered into as per the revised guidelines. The said programmes were ongoing programmes whereas the programme of the Petitioner has come to an end on 20th June 2006." 10. This Court has heard the submissions of Ms. Meenakshi Arora, learned counsel for the Petitioners and Mr. Rajeev Sharma, learned counsel for the Respondent. 11. This Court is unable to accept the submission of the Respondent W.P. (C) No.7496 of 2009 Page6 of10 -vj^. thatPetitionersare in effectseekingto enforcea contractualobligation and re-write the contract with the Respondent.As this Court sees it, there were contracts entered into even with the producers of the other serialswhich suffereda similar-dropin the TVRs for the three months i.e. April to June 2006. The questionreallyis not aboutre-writingthe contract or enforcing any contractual obligation. The issue here is about the discriminatoryapplication of the revised penalty formula announcedby the Respondenton 17"^ November2005. That policy decision was meant to apply across the board to all programme producersirrespectiveof the clausesin such individualcontracts. 12. Mr. Rajeev Sharma, learned counsel for the Respondent placed extensive reliance on the decisions of the Supreme Court in State of UP V. Bridge & Roof Company (India) Ltd. (1996) 6 SCC 22 and Gursharan Singh v. New Delhi Municipal Committee AIR 1996 SC 1175. In the former decision, the issue before the Court was whether reduction in statutory liability by virtue of amendments to the UP Trade Tax Act would impact on the payments to be made to the Petitioners under the individual contracts. The Supreme Court held that these were questions not to be agitated in a writ petition under Article 226 of the Constitution particularly because it involved interpretation of the clauses of the contract. Moreover, such a question had to be agitated before the arbitrator or the civil court. 13. In Gursharan Singh, the question was about the discrimination by the Respondent in extending the concessions in respect of licence fee W.P. (C) No.7496 of2009 Page 7of 10 and relaxation in trade zoning restrictions to some of the shops which were in different zones. It was held that merely because orders were passed in favour of some other shopkeepers illegally, there was no question seeking the issuance of a writ to extend the same benefit to others. 14. In the considered view of this Court, neither of the above decisions i 1s appropriate to the case on hand. In the instant case, there is no ,.,__.,_ dispute that the benefit of the revised penalty was indeed extended to other serial producers whose TVRs also witnessed a drop in the three months of April to June 2006. It is not the Petitioner's case that the extension of the benefit of the revised policy to them was illegal. That is not even the case of the Respondent. Therefore, there is no question of the Petitioner seeking to perpetuate any illegality as was sought to be done in that case. 15 .. Further it is not as if the facts in the present case are in dispute. The short question here is where the Respondent could extend the benefit to other similarly placed serial producers, was it justified in denying the said benefit . to the Petitioner. Such a question did not arise in the Bridge & Roof case. Moreover, the Supreme Court has in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. (2004) 3 SCC 553 explained the circumstances under which intervention under Article 226 of the Constitution by the High Court is possible. In para 27 it was held as under: "27. From the above discussion of ours, the W.P. (C) No.7496 of 2009 Page8of10 I r I ( \ following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for considenition, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable." 16. Consequently, this Court finds that there cannot be any bar on entertaining the plea of the Petitioner in the instant case in exercise of its power under Article 226 of the Constitution. 1 7. The only reason given by the Respondent is that either revised contracts were entered into with the other programme producers or that th?se were ongoing contracts. This can hardly be any justification for discriminatory treatment. If during the three months in question there was indeed a drop in the TVR across the board and the benefit of the revised penalty formula was given to the other producers, it could not have been possibly denied to the Petitioner. Those television serials were also governed by only individual contracts as was the Petitioner's during the three months in question. The mere fact that the serial of the Petitioner came to an end in June 2006 cannot be a good enough reason for denying it the benefit. 18. For the aforementioned reasons, the writ petition is allowed. A direction is issued to the Respondent to pay to the Petitioner No.1 the W.P. (C) No.7496 of 2009 Page9of10 '' l' amount as calculated by it by applying the revised penalty formula as / announced on 17th November 2005. The amount due to the Petitioner No.1 should be paid to it by the Respondent within a period of four weeks from today together with simple interest @ 6 % per annum from the date of filing of the petition i.e. 4th March 2009 till the date of payment. In addition, the Respondent will pay the Petitioners costs of Rs.S,OOO/-within four weeks from today. The application is disposed of. r-1- ( S. MURALIDHAR, J. MAY 28,2010 dn I W.P. (C) No.7496 of 2009 Page10of10