IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No.684 of 2009. Sohit Chaudhary S/O Sri M.P.Singh, Proprietor, Manoranjan Cable T.V. Network, A-37 Sharda Nagar Jwalapur Haridwar, District Haridwar. … Petitioner. Vs. District Magistrate Haridwar, District Haridwar and two others. … Respondents. Sri Parikshit Saini, Advocate, learned counsel for the petitioner. Sri K.P.Upadhyay, learned Additional C.S.C. for respondent nos. 1 and 2. Sri Deepak Sharma, Advocate, learned counsel for the respondent no.3. Date October 20, 2009. P.C.: Hon’ble B.S.Verma, J. By means of this writ petition the petitioner has sought a writ in the nature of certiorari quashing the order dated 7-5-2009 (Annexure No.3 to the petition) whereby oral direction was given by the District Magistrate Haridwar- respondent no.1 to District Entertainment Tax Officer Haridwar-respondent no.2 to direct the petitioner to provide cable signals to respondent no.3 and also directed him to issue formal notice to respondent no.3 for enhancement of monthly fees as line rent on the increased rate as has been charged from other sub cable operators. Brief facts giving rise to the present writ petition according to the petitioner are that the petitioner is running a cable network in Haridwar under U.P. Cable Television Network (Exhibition) Rules 1997 and the Telecom Regulatory Authority of India Act, 1997(Act No 2 24 of 1997). The petitioner is main cable operator engaged in down linking the signals from satellite and distributing the same through cable network system. There are number of petty/sub cable operators including the respondent no.3, who take signals from the petitioner’s cable network and transmit the same to their respective areas and in lieu thereof, charge of Rs. 100/- per connection is paid by them to the petitioner. Consequently, the respondent no.3 transmits cable signals in Mohalla Kadach, Jwalapur, district Haridwar. Earlier the respondent no. 3 used to pay Rs. 5000/- for fifty connection i.e. @ Rs. 100/- per connection. In March 2009, the respondent no. 3 was having 107 cable network connections, therefore, the monthly line charge of the respondent no.3 was to be paid @ Rs. 10,700/-. The enhanced amount was not paid by respondent no.3 to the petitioner. On 26-4-2009, the transmission of signals to the cable network of the respondent no.3 was stopped. A complaint was made by respondent no.3 to the respondent no.2 to the effect that transmission of signals has been stopped by the petitioner. On his complaint, a letter was issued by the respondent no. 2 on 5-5-2009 to the petitioner directing him to transmit the cable signals to the cable network of the respondent no.3 and notice for enhancement of monthly fees be also issued formally to him on the increased rate as has been realized from other sub cable operators. Reply was also submitted by the petitioner to the respondent no.2 on 6-5-2009 and the impugned order was passed by the respondent no.2 on 7- 5-2009 that the transmission of signals to the cable network of respondent no. 3 shall be reinstated in view of the order of the District Magistrate Haridwar-respondent no.1 passed on his reply. 3 The writ petition has been filed on the ground that the respondent no.1 has no role to pay as to what would be the rate of monthly line charge and the dispute is purely of civil nature and under the aforesaid Act, the District Magistrate/Collector has no power to pass such order, therefore, the order impugned is without jurisdiction. On behalf of the respondent no. 1 and 2, counter affidavit has been filed on 11-6-2009. Affidavit has been sworn in by Deputy Commissioner, Entertainment Tax, Kumaon Mandal, Nainital. It is stated inter alia in paragraph no. 4 as under:- “As per Rule-3 of the U.P. Cable Television Network (Exhibition) Rules-1997, the petitioner was granted the permission to provide cable services. As per Rule-4 of the aforesaid Rules of 1997 the petitioner was granted the renewal of the permission granted for the year 2009-10. The petitioner, as such, is also governed by the U.P. Entertainment and Betting Tax Act Act-1979 and the Rules of 1997 framed under the Act of 1979.” It is further stated in para 10 that as per the report dated 29th April, 2009, submitted by the Senior Entertainment Tax Officer, Haridwar, the order dated 5th May 2009 was passed by the respondent no.2 directing the petitioner to issue notice to respondent no.3 and to restore the cable signals to the network of respondent no.3 in the larger interest of consumers. According to the respondents, the impugned order was passed by the respondent no.2 as per the provisions of Act of 1979 and the Rules of 1997 as well as Notification dated 7-4-2006. 4 It is also stated that the respondent no.2 is appropriate authority to pass such order. In paragraph 12 it has been inter alias stated that “the respondent no. 1 and 2 are the authorized officer to pass orders as provided under Section-5 of the Act 1979 and as provided under Rule-3 and 4 of Rules of 1997. As per Clause-5 of the letter of permission granted to the petitioner by the District Magistrate, it is clearly provided that the Cable Operator shall abide by the orders passed by the District Magistrate.” Counter affidavit has also been filed by respondent no.3 wherein the averments made in the counter affidavit of respondent nos. 1 and 2 have been reiterated and one more ground has been taken in paragraph no. 3 that the petitioner has an alternate remedy to file an appeal before the appellate authority as provided under Rule 18 of the U.P. Cable Television Network (Exhibition) Rules 1997. This ground has also been taken by the State in paragraph 15 of its counter affidavit. I have heard learned counsel for the parties and perused the contents of the writ petition as also the counter affidavits filed by the respondents. The controversy which emerges out by the pleadings of the parties is that whether the Collector or the District Entertainment Tax Officer is competent to pass an order as to what would be the charges, which was being realized by the petitioner from respondent no.3. According to the petitioner, he has submitted that the monthly fee was not enhanced. Only the 5 monthly fee is being charged @ Rs. 100/- per connection on the ground of increase of cable connections with respondent no.3. It is pertinent to mention here that there is no written agreement between petitioner no.1 and respondent no.3. The Clause 4 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulation 2004 was amended vide Notification dated 4- 9-2006 and the relevant extract of amended clause 4 was substituted as under: “4. Disconnection of TV channel signals 4.1 No broadcaster or multi system operator shall disconnect the TV channel signals to a distributor of TV channels without giving three weeks notice to the distributor clearly giving the reasons for the proposed action. Provided that a notice would also be required before disconnection of signals to a distributor of TV channels if there was an agreement, written or oral, permitting the distribution of the broadcasting service, which has expired due to efflux of time. Provided further that no notice would be required if there is no agreement, written or oral, permitting the distribution of the signals.” By Telecom Regulatory Authority of India vide Notification dated 17th March, 2009 further amended regulation of the principal regulation and in the first proviso to sub-regulation 4.1, for the words “an agreement written or oral”, the words “a written agreement” was substituted. In second proviso to sub- 6 regulation 4.1, for the words “agreement written or oral”, the words “written agreement” was substituted. The petitioner has mentioned the above- amended clause 4 of the TRAI Notification in paragraph no. 8 of the rejoinder affidavit filed in this writ petition. It is thus amply clear that no notice would be required if there is no agreement in writing permitting the distribution of the signals. In the case at hand, there is no written agreement between the parties and there is no requirement of notice to be issued. It has been further contended by the petitioner that the respondent no. 3 had already filed a civil suit before the Civil Judge (Senior Division) Haridwar on 25-5- 2009 after filing of this writ petition by the petitioner, for the same prayer, which is pending. This fact is not disputed by the respondent no.3. So far as the powers of the Collector and District Entertainment Tax Officer- respondent Nos. 1 and 2 are concerned, the respondents could not demonstrate such source of power lying with the respondent nos. 1 and 2 as to what would be the rate of monthly fees to be paid by the petty/sub cable operators to the petitioner. Moreover, the provisions of Section 5 of the U.P. Entertainment and Betting Tax Act, 1979 and Rule 3 of U.P. Cable Television Network (Exhibition) Rules 1997, which confers powers upon respondent nos. 1 and 2, are not applicable to the case at hand in respect of dispute between petitioner and respondent no.3. So far as the alternate remedy is concerned, no tax was imposed against the petitioner and the petitioner 7 can assail the impugned order. Moreover, when the order impugned is passed without jurisdiction by the authority concerned, alternate remedy is not an absolute bar and the Writ Court can entertain the writ petition. In view of the discussion made in the foregoing paragraphs, I am of the view that the impugned order dated 7-5-2009 passed by the respondent no. 2 is without jurisdiction and is liable to be set aside. The writ petition deserves to be allowed. The writ petition is allowed. The impugned order is set aside. However, the learned Civil Judge (Senior Division) Haridwar is directed to decide the civil suit (No. 148 of 2009) without being influenced by the order passed by this Court. All pending applications stand disposed of. (B.S.Verma,J.) RCP 8