IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.05.2011 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.28283 of 2010 Cable Operators Association of Tamizhagam, rep. by its President, A.P.Muruhkadaasan, having its office at No.107-C, P.S.K.Street, Kancheepuram 631 501. ... Petitioner vs. 1. The Commissioner of Police/ Authorized Officer, Greater Chennai, Egmore, Chennai 600 008. 2. M/s.Kal Cables Private Limited, rep. by its Chairman, Kalanidhi Maran, No.4, Norton Road, Mandaveli, Chennai 600 028. 3. M/s.Sumangali Cable Vision, (A unit of Kal Cables Private Limited), No.4, APT Buildings, Dr.Giriappa Road, T.Nagar, Chennai 600 017. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the first respondent to take appropriate action against the 2nd and 3rd respondents based on the petitioner's complaint dated 29.03.2010. For Petitioner : Mr.V.Ayyadurai https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.S.Ramasamy, for R1 & R2 Addl. Advocate General Mr.J.Ravindran, for R3 O R D E R This writ petition is filed for a direction to the first respondent to take appropriate action against the 2nd and 3rd respondents based on the complaint of the petitioner, dated 29.03.2010. 2. Facts of the case as put forth in the affidavit would run thus: (i) The petitioner Association is a registered Society incorporated in terms of the provisions contained in the Tamil Nadu Societies Registration Act, 1975. It has 25 members as on date and it has been formed to protect the interest and welfare of Cable Operators in the State of Tamil Nadu. (ii) The Cable Television Networks (Regulation) Act, 1995, hereinafter referred to as "the Act", was enacted to regulate the operation of Cable Television Networks in the country and for matters connected therewith or incidental thereto. By virtue of Cable Television Networks (Regulation) Amendment Act, 2002, Section 4A (Transmission of programmes through addressable system) was inserted to the principal Act. Sub-Section (1) of the said section 4A of the said Act provides that where the Central Government is satisfied that it is necessary in the public interest, it may, by notification in the Official Gazette, make it obligatory for every cable operator to transmit or retransmit programme of any pay channel through an addressable system with effect from such date as may be specified for different States, cities, towns or area, as the case may be. By virrtue of the Notification issued by the Government of India in S.O.39(E) dated 14.01.2003, among other Cities, the Chennai Metropolitan Area has been notified as Conditional Access System (CAS) area. (iii) While so, some of the Cable Operators have raised an issue that 2nd and 3rd respondents herein have been airing certain pay channels into the basic tier, i.e. free to air signals transmitted without the help of Set Top Boxes in contravention of Section 4(A) of the said Act. Because of such illegal transmission of Pay Channel signals without Set Top Boxes as Free-to-Air Channels, it is difficult for the Operators of Chennai Metropolitan to carry out their Trade in strict adherence to the various provisions of the said Act and the Rules made thereunder besides sustaining loss. Every Cable Operator is to receive signals from the Multi System Operator(MSO) and supply the same to the houses in their respective areas through Closed Path and that the subscriber would get https://hcservices.ecourts.gov.in/hcservices/ the signals of channels to their choice. (iv) There are two kinds of Television Signals commonly known as Pay Channels and Free-To-Air Channels. The Chennai Metropolitan Area is notified under Section 4-A of the said Act. The above said two system of transmission of Television Signals are permissible. As a matter of fact, only one Multi System Operator for the whole of Chennai has been granted with licence and act as sole MSO. The 3rd respondent is legally obligated to transmit Television signals without overlapping and in conformity with the provisions of the Act. The Cable Operators having been duly registered with the authority, they are empowered to retransmit the Television signals through Cable without any decoding to the customer. It is further submitted that the Cable Operators are authorized to collect the prescribed amount from their respective consumers to whom the Set Top Boxs are provided for viewing the Pay Channels, at the additional rates to that of Free-To-Air Channel-basic tier. (v) While that being so, it came to light that the 3rd respondent herein, re-transmitted the signals of Pay Channels through Free-to-Air basic Tier. As a result of which, the Cable Operators sustained loss of income. In these circumstances, the transmission of signals were recorded on 16.03.2010 which revealed that a number of Pay Channel signals were unauthorisedly transmitted in Free-To-Air basic Tier. Hence, the petitioner Association made a representation dated 29.03.2010 before the 1st respondent who is competent to take appropriate action in law. Despite that the 1st respondent herein neglected to act according to law which resulted in causing continuous loss to the Cable Operators, which in turn affects the trade and livelihood of the Cable Operators. Hence, the petitioner approached this court. 3. In the counter filed by the 1st respondent, it is stated that a photo copy of the representation dated 29.03.2010 was received in the office on 15.12.2010 and an endorsement through proper channel was subjected to enquiry by the Inspector of Police, Team X, Copyright Wing of the Central Crime Branch. In the complaint, the complainant had enclosed copies of the affidavits from two persons living in Kattupakkam and Adambakkam area and mentioned that he had enclosed CDs containing recordings of the telecasted pay channels without set top boxes from the houses of the above two persons. However, no such CDs were enclosed as mentioned in the complaint. Though the areas mentioned do not belong to the jurisdiction of Chennai Police Comissionerate, necessary enquiry was conducted by the Inspector of Police. 3a. The statements recorded by the Inspector from the above two persons during the course of enquiry did not state anything that could be conclusive of violations of transmission of pay channels without set top boxes. Moreover, enquiry of two other witnesses in the respective areas also did not categorically establish the viewing of pay channels as mentioned in the complaint. Though CDs were not enclosed in the https://hcservices.ecourts.gov.in/hcservices/ complaint as claimed by the complainant, the representative of the complainant handed over a CD to the Inspector in person on 11.04.2011 and the complainant also sent CDs through courier on 19.04.2011. The enquiry officer, Inspector of Police, has reported that the contents of the CDs could not linked definitely to a specific place and period. Hence, he has reported that he could not conclude telecasting of pay channels without set top boxes in the areas as mentioned in the complaint falling within the CAS (Conditional Access System) notified Chennai Metropolitan Area and the provisions of Section 4(A) and 16 of the Act 1995 could not be invoked. 4. Respondents 2 and 3 have filed a counter affidavit, wherein, they have stated that the petitioner is not the aggrieved person and he does not have any legal right. Further, the address given by the petitioner is in Kancheepuram area which is a non CAS area and the petitioner's complaints are about alleged illegal transmission in a CAS area viz. Chennai for which the petitioner has no connection. It is their further submission that pursuant to the complaint made by the petitioner on 29.03.2010, the Police authorities enquired the Managers of 2nd and 3rd respondent Companies regarding the allegations made by the petitioner. 5. To the above counter affidavits, the petitioner has filed a rejoinder, wherein, it is stated as follows : (i) The petitioner has filed the present writ petition seeking indulgence of this court to direct the 1st respondent, who is a statutory authority under the Special Act known as Cable Television Networks (Regulation) Act, 1995, since he has neglected to act according to law. The writ petitioner Association was confirmed with an avowed object to protect the interest of Cable Operators in the State of Tamil Nadu relating to their trade. The petitioner being a registered Society has got every right to approach this court seeking the relief of directing the statutory authority to perform his functions within the four bounds of law. Moreso, in the instant case, the grievance of the petitioner is that the 1st respondent has not taken any action on their representation dated 29.03.2010 which discloses commission of cognizable offence and therefore, the 1st respondent ought to have registered the case and to file final report before the competent criminal Court for violation of Section 4A of the said Act. However, the 1st respondent did not chose to take any action for the reason of political influence wielded by other respondents as averred in ground No.C of the affidavit filed in support of the main writ petition. In view of the same, it is submitted that the technical objection raised by respondents 2 and 3 that the writ petition is not maintainable on the score of locus standi of the petitioner, etc. does not deserve any merit consideration in the light of the settled principle of law that anybody can set the criminal law into motion and that the concept of aggrieved person is unknown to criminal jurisprudence except as expressly provided in Chapter XIV of Cr.P.C. https://hcservices.ecourts.gov.in/hcservices/ (ii) The petitioner would further submit that the power of this court under Article 226 of the Constitution of India is so wider enough to reach wherever injustice is occurred and to maintain the rule of law by issuing suitable direction to act the statutory authorities within the four corners of statute and also to do complete justice as has been held in a catena of decisions by the Apex Court and this court. In that view of the matter, it is submitted that this court has got every power to issue suitable direction to the 1st respondent to perform his statutory duty as provided in the aforementioned Act. (iii) The allegation made by the respondents with regard to requirement of pre-existence of legal right and the violation thereof as essential criteria for approaching this court to issue a writ of mandamus is wholly unsustainable besides being opposed to the scope of writ petition. The other allegations that the Association has no connection with CAS area viz. Chennai is concerned, suffice to state that the Writ Petitioner Association being a State Level Body has got every right to redress the grievance of the Cable Operators throughout the State of Tamil Nadu. (iv) As a matter of fact, the petitioner has filed affidavit of two individuals which undoubtedly establishes the violation of Section 4A of the said Act and also has a CD substantiating the contents of their affidavit, which is annexed with the complaint dated 29.03.2010. As on date, the complaint of the petitioner has not been registered in a manner known to law without which no investigation can validly be started. However, the fact remains that the Inspector of Police, Central Crime Branch, Egmore has issued summon under Sections 160 and 90 of Cr.P.C. directing the President and others to appear for examination scheduled to have been held on 22.12.2010 and obtained involuntary statement from them under threat and coercion. Immediately, thereafter, the witnesses who are subjected for duress at the hands of the said Inspector of Police dated 03.01.2011 requested to give necessary protection to them. The Commissioner of Police has not even taken any action upon such representation dated 03.01.2011. The third parties have also filed necessary supporting affidavit signifying their willingness to give evidence before this court, if it is necessary. Viewing the case in this angle, it may be seen that none of the contentions raised in the counter affidavit filed on behalf of the 2nd and 3rd respondents are sustainable in law or on facts. At any rate, the complaint of the petitioner Association cannot be thrown away on the ground that no member of the said Association was having any connection in relation to the area of Chennai. The Cable Operators functioning within the local limits of CAS area have also joined as members of the petitioner Association subsequently. 6. Learned counsel for the petitioner would contend that the Act of unauthorized transmission of Pay Channel signals through Free-To-Air https://hcservices.ecourts.gov.in/hcservices/ basic Tier constitutes an offence within the meaning of Section 4(A) Act read with Section 16 of the Act. It is his further contention that the 1st respondent has neglected to discharge his statutory and public duty which warrants interference by this court. In support of his case, learned counsel has relied on the following : (i) a Supreme Court decision reported in AIR 1981 SC 344 in the case of Fertilizer Corporation Kamagar Union (Regd) Sindri and others v. Union of India "38. We have no doubt that in a competition between courts and streets as dispenser of justice, the rule of law must win the aggrieved person for the law court and wean him from the lawless street. In simple terms, locus standi must be liberalised to meet the challenges of the times. Ubi just ibi remedium must be enlarged to embrace all interests of public- minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets. Lord Scarman's warning in his Hamlyn Lectures lend strength to our view : "I shall endeavour to show that there are in the contemporary world challenges, social, political and economic, which, if the system cannot meet them, will destroy it. These challenges are not created by lawyers; they certainly cannot be suppressed by lawyers: they have to be met either by discarding or by adjusting the legal system. Which is to be ?" 39. Lest there should be misapprehension, we wish to keep the distinction clear between the fundamental right to enforce fundamental rights and the interest sufficient to claim relief under Art. 226 and even under other jurisdictions. The learned Attorney General almost agreed, under pressure of compelling trends in the contemporary law of procedure, that Art. 226 may probably enable the petitioner to seek relief if the facts suggested by the court hypothetically existed. Shri A. K. Sen also took up a similar position. I will put aside Art. 32 for a moment and scan the right under Art. 226. There is nothing in the provision (unlike under Art. 32) to define 'person aggrieved', 'standing' or 'interest' that gives access to the court to seek redress. (ii) yet another Supreme Court decision reported in AIR 1985 SC 1147 in the case of Ram and Shyam Company v.State of Haryana and others "10. Before we deal with the larger issue, let me put out of the way the contention that found https://hcservices.ecourts.gov.in/hcservices/ favour with the High Court in rejecting the writ petition. The learned Single Judge as well as the Division Bench recalling the observations of this Court in Assistant Collector of Central Excise v. Jainson Hosiery Industries (1979) 4 SCC 22: (AIR 1979 SC 1889) rejected the writ petition observing that 'the petitioner who invokes the extraordinary jurisdiction of the court under Art. 226 of the Constitution must have exhausted the normal statutory remedies available to him'. We remain unimpressed. Ordinarily it is true that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Art. 226 where the party invoking the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the Court. In fact in the very decision relied upon by the High Court in The State of Uttar Pradesh v. Mohammad Nooh it is observed that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It should be made specifically clear that where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the in stance of person adversely affected by it, would lie to the High Court under Art. 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits. Look at the fact situation in this case. Power was exercised formally by the authority set up under the Rules to grant contract but effectively and for all practical purposes by the Chief Minister of the State. To whom do you appeal in a State administration against the decision of the Chief Minister ? The clutch of appeal from Ceasar to Ceasar wife can only be bettered by appeal from one's own order to oneself. Therefore this is a case in which the High Court was not at all justified in throwing out the petition on the untenable ground that the appellant had an effective alternative remedy. The High Court did not pose to itself the question, who would grant relief when the impugned order is passed at the instance of the Chief https://hcservices.ecourts.gov.in/hcservices/ Minister of the State. To whom did the High Court want the appeal to be filed over the decision of the Chief Minister. There was no answer and that by itself without anything more would be sufficient to set aside the judgment of the High Court." (iii) a judgment of the Allahabad High Court reported in AIR 1984 Allahabad 46 in the case of Umesh Chand Vinod Kumar and others v. Krishi Utpadan Mandi Samiti, Bharthana and another "20. To summarise, the position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the enforcement at its own rights-- (1) In case members of such an association are themselves unable to approach the court by reason of poverty, disability or socially or economically disadvantaged position "little Indians". (2) In case of a public injury leading to public interest litigation provided the association has some concern deeper than that of a way-farer or a busybody i.e. it has a special interest in the subject-matter. (3) Where the rules or regulations of the association specifically authorise it to take legal proceedings on behalf of its members, so that any order passed by the court in such proceedings will be binding on the members. 45. Our answer to the referred questions is as follows:-- Q. 1 Whether an association of persons, registered or unregistered, can maintain a petition under Article 226 of the Constitution for the enforcement of the rights of its members as distinguished from the enforcement of its own rights? A. 1 The position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the enforcement of its own rights (1) In case members of such an association are themselves unable to approach the court by reason of https://hcservices.ecourts.gov.in/hcservices/ poverty, disability or socially or economically disadvantaged position (Title Indians"). (2) In case of a public injury leading to public interest litigation; provided the association has some concern deeper than that of a wayfarer or a busybody, i.e., it has a special interest in the subject-matter. (3) Where the rules or regulations of the association specifically authorise it to take legal proceedings on behalf of its members, so that any order passed by the court in such proceedings will be binding on the members" (iv) a judgment of the Calcutta High Court made in AIR 1983 Calcutta 448 in the case of W.B. Head Masters' Association and another v. Union of India and others "16. The second objection is directed against the locus standi of the appellants -- West Bengal Head Masters' Association and the West Bengal Guardians' Association. The appellant No. 1 is an Association registered under the Societies Registration Act. It is contended on behalf of the Board that these two Associations are not affected by the impugned revised syllabus, and that they cannot have any legal right. It is difficult to accept such a contention. Both these Associations are interested in the education of the boys and girls of the Stale and, if according to them, the syllabus has not been properly prepared they have, in our opinion, locus standi to file a writ petition. In our view, any person interested in education may come to the High Court complaining about any irregularity or illegality committed by a statutory body entrusted with the education of children and seeking relief against such irregularity or illegality. There is, therefore, no substance in the contention of the respondents and it is rejected." (v) a Supreme court decision made in 2010 8 SCC 582 in the case of State of Maharashtra v Farrok Mohammed Kasim Mapkar and others 29.About the direction by the High Court, in exercise of its jurisdiction under Article 226, requesting the CBI to investigate a cognizable offence within the territory of a State without its https://hcservices.ecourts.gov.in/hcservices/ consent was considered recently by a Constitution Bench in a decision reported in State of West Bengal & Ors. vs. Committee for Protection of Democratic Rights, West Bengal & Ors. (2010) 3 SCC 571 which reads as follows:- "69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly." In view of the above pronouncement, we hold that in order to protect civil liberties, fundamental rights and more particularly Article 21, this Court and High Courts can very well exercise the power, no doubt, must be sparingly, cautiously and in exceptional situations as observed in para 70 of the said judgment. (vi) another Supreme court decision made in 2010 3 SCC 571 in the case of State of West Bengal and others v. Committee for protection of Democratic Rights, West Benagl and others 69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, https://hcservices.ecourts.gov.in/hcservices/ guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. (vii) a judgment of Hon'ble Supreme court made in AIR 1970 SC 786, S.N. Sharma v. Bipen Kumar Tiwari and others in para 7 it is held as follows: "7.Counsel appearing on behalf of the appellant urged that such an interpretation is likely to be very prejudicial particularly to Officers of the