IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28-9-2011 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR W.P.No.20795, 20796, 20797 of 2011 and Connected Miscellaneous Petitions W.P.No.20795 of 2011 Kal Cables Pvt. Ltd. Rep.by its General Manager J.Rajesh, 229, Kutchery Road, Mylapore, Chennai – 600 004. ... Petitioner Vs. 1. The Secretary to Government of Tamil Nadu, Home Department, Fort St.George, Chennai – 600 009. 2. The Director General of Police (Tamil Nadu), Law and Order, Dr.Radhakrishnan Salai, Mylapore, Chennai – 600 004. 3. The District Collector, Coimbatore District, Coimbatore 4. The Commissioner of Police, Coimbatore District, Coimbatore. 5. The Tamil Nadu Arasu Cable TV Corporation Ltd., Raag Durbhar, Flat No.1-A, First Floor, 45, Sterling Road, Nungambakkam, Chennai – 600 034. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of mandamus forbearing the respondents from interfering with the petitioners peaceful running of its cable service business. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.20796 of 2011 Kal Cables Pvt. Ltd. Rep.by its General Manager J.Rajesh, 229, Kutchery Road, Mylapore, Chennai – 600 004. ... Petitioner Vs. 1. The Secretary to Government of Tamil Nadu, Home Department, Fort St.George, Chennai – 600 009. 2. The Director General of Police (Tamil Nadu), Law and Order, Dr.Radhakrishnan Salai, Mylapore, Chennai – 600 004. 3. The District Collector, Tiruppur District, Tiruppur 4. The Superintendent of Police, Tiruppur District, Tiruppur. 5. The Tamil Nadu Arasu Cable TV Corporation Ltd., Raag Durbhar, Flat No.1-A, First Floor, 45, Sterling Road, Nungambakkam, Chennai – 600 034. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of mandamus forbearing the respondents from interfering with the petitioners peaceful running of its cable service business. W.P.No.20797 of 2011 Kal Cables Pvt. Ltd. Rep.by its General Manager J.Rajesh, 229, Kutchery Road, Mylapore, Chennai – 600 004. ... Petitioner Vs. https://hcservices.ecourts.gov.in/hcservices/ 1. The Secretary to Government of Tamil Nadu, Home Department, Fort St.George, Chennai – 600 009. 2. The Director General of Police (Tamil Nadu), Law and Order, Dr.Radhakrishnan Salai, Mylapore, Chennai – 600 004. 3. The District Collector, Erode District, Erode. 4. The Superintendent of Police, Erode District, Erode. 5. The Tamil Nadu Arasu Cable TV Corporation Ltd., Raag Durbhar, Flat No.1-A, First Floor, 45, Sterling Road, Nungambakkam, Chennai – 600 034. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of mandamus forbearing the respondents from interfering with the petitioners peaceful running of its cabe service business. For Petitioner in : Mr.P.S.Raman, Sr.Counsel W.P.No.20795/2011 for Mr.B.K.Girish Neelakantan For Petitioner in : Mr.N.Vijay Narayan, Sr.Counsel W.P.Nos.20796 & 20797/2011 for Mr.B.K.Girish Neelakantan For Respondents : Mr.A.Navaneethakrishnan, Advocate General assisted by Mr.V.Jayaprakashnarayanan, Addl. Govt. Pleader (RR-1to4) Mr.Abdul Saleem (R-5) https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER The petitioner in all the three writ petition are one and the same. These writ petitions are filed seeking writ of mandamus forbearing the respondents from interfering with the petitioner's peaceful running of its cable service business. 2. The brief facts necessary for disposal of these writ petitions are as follows: (a) Petitioner is running cable service business in Coimbatore, Tiruppur and Erode regions and it is having licence to carry on business upto 24.4.2012 in respect of Coimbatore region; upto 18.5.2012 in respect of Tiruppur region; and upto 18.6.2012 in respect of Erode region. Petitioner company is one of the leading Multi System Operator, distributing channels (pay and free) through Cable Operators after obtaining signals from the Broadcasters and for the said purpose, petitioner Company claimed to have laid cables as per the terms and conditions prescribed by the authorities. Petitioner is also paying track rent to the concerned local authority for the said cables in respect of the area, in which the cables are laid. It is the contention of the petitioner that it is doing Multi System Operation in a lawful manner. (b) Petitioner states that the State Government launched 'Tamil Nadu Arasu Cable TV Corporation Limited', 5th respondent herein on 2.9.2011 without any infrastructural facilities of their own. The said Corporation, in order to distribute the free channels through operators/affiliates have illegally cut the cables laid by the petitioner Company and is using the petitioner's cables and infrastructure to distribute their channels to the cable operators. It is alleged in the affidavit that the 5th respondent, through their operators, have cut the petitioner's cables and complaints were given to the Police officials and no action is taken by the police officials. After cutting the cables, the 5th respondent had put their own feed through the cable and infrastructure laid by the petitioner. It is alleged that the 5th respondent is interfering with the cable operating business of the petitioner company by using the cables laid by the petitioner due to which the cable services provided by the petitioner is completely affected in the whole of Coimbatore, Tiruppur and Erode regions. (c) The petitioner company being a Multi System Operator, has entered into an agreement with various Broadcasters for distributing their channels through cable operators and due to the cutting of cables, the petitioner Company is not able to telecast the channels of Broadcasters with whom agreement is entered into, which may result in taking action by the Broadcasters against the petitioner. https://hcservices.ecourts.gov.in/hcservices/ (d) On 5.9.2011 the illegality committed by the 5th respondent was brought to the notice of the police officials and the 5th respondent being a Tamil Nadu Government Corporation, the police are not taking action. The petitioner also intimated the same to respondents 1 and 2 on 7.9.2011. (e) The main contention of the petitioner is that petitioner's right to carry on the business is affected, and that, the respondents are hand-in-glow with the 5th respondent and hence the respondents 1 and 2 are not taking action on the complaints preferred by the petitioner in a manner known to law, and therefore the petitioner's right guaranteed under Article 19(1)(a) of the Constitution of India is affected. Hence the petitioner has filed these writ petitions. 3. Disputing the above allegations, the 5th respondent has filed separate counter affidavit in each of these writ petition contending as follows: (i) The writ petitioner has approached this Court with tainted and unclean hands by suppressing material facts and the issue raised in these writ petitions involve several disputed facts and therefore the writ petitions are not maintainable. Petitioners have not impleaded the local bodies, who are the competent authorities to grant permission and no objection certificate to lay cables in their respective areas. The petitioner has failed to produce any proof regarding their ownership of the cables and infrastructure alleged to be owned by the petitioner. (ii) On merits of the cases the 5th respondent is contending that the Government of Tamil Nadu issued G.O.Ms.No.22 Information and Technology Department, dated 13.8.2007 and ordered formation of 'Tamil Nadu Arasu Cable TV Corporation Limited' and the said Corporation was incorporated on 4.10.2007 under the Companies Act, 1956 with an intention to provide high quality cable TV signals to the general public at an affordable cost. A sum of Rs.61.35 crores was sanctioned for creating infrastructural facilities for running Arasu Cable TV services, including installation of Digital Cable TV Head Ends at several places. Digital Cable TV Head Ends were commissioned on 15.7.2008, 15.8.2008, and 15.9.2008 at Thanjavur, Coimbatore and Tirunelveli as well as Vellore, respectively. (iii) The 5th respondent Corporation started its cable services from the respective days mentioned above in the respective areas. Due to various reasons, including unlawful activity of the writ petitioner and their associates in indulging large scale cutting and disrupting of the Arasu Cable TV Corporation Cable Services, the subscribers base came down drastically and ultimately the services of the Corporation became defunct. https://hcservices.ecourts.gov.in/hcservices/ (iv) After the general election to the Tamil Nadu Legislative Assembly 2011, the present Government has taken steps to revive the 5th respondent Corporation. Accordingly it was revived and applications were invited through online from the interested local Cable Operators and Multi System Operators to enroll with the Corporation by 9.8.2011. Totally 35,248 local cable operators and 2,641 Multi System Operators have enrolled with the 5th respondent for getting signals throughout Tamil Nadu (except Chennai). (v) It is also stated in the counter affidavit that the above said operators also expressed their willingness to hand over their existing control rooms to the 5th respondent. The 5th respondent started its cable TV services on 2.9.2011 throughout Tamil Nadu, except Chennai, from its existing four Digital Head Ends at Thanjavur, Coimbatore, Tirunelveli and Vellore and from the control rooms handed over by the private operators in the remaining 27 districts. (vi) On 29.8.2011, the 5th respondent Corporation issued a circular to the effect that it will provide only signal feeds from the respective control room and all the local Cable Operators and Multi System Operators shall use their own cable network to receive the signals. The role of the 5th respondent do not extend to lay/draw cable network and is only limited. The local cable operators are getting signals and the 5th respondent is only feeding the signals and none of its employees have any roll to deal with laying underground cables/ drawing overhead cables or maintaining any cable. (vii) Several criminal complaints were registered regarding cutting of cables and disrupting of services in the years 2008 and 2009. As per Rule 3 of the Tamil Nadu Municipal Television Cable Installation Regulation, 2000, the petitioner has not obtained the provisional permission and No Objection Certificate as required under Rule 3(5) of the above rules. (viii) It is further stated that the petitioner is making use of several street light poles viz., 236 in Tiruppur district, 83 street light poles in Coimbatore city and also using several lamp poles in Erode Municipal Corporation limits, without any valid permission and the local bodies are also not impleaded. The petitioner having not obtained permission to lay or draw cables, its laying and drawing cables itself is illegal and mere payment of track rent fee suo-motu without getting permission from the concerned local authority as required under Rule 3 will not confer the petitioner any right to claim ownership of the cables. (ix) The erstwhile organisation of KAL cables Private Limited i.e, Sumangali Cable Vision had indulged in rampant cutting of optical fibre cables of the 5th respondent in Coimbatore region from November, 2008 to February, 2009, 24 complaints were filed by the 5th https://hcservices.ecourts.gov.in/hcservices/ respondent for cutting of cables and disruption of public services in Coimbatore. The said complaints are still pending and the then Managing Director of the 5th respondent sent a detailed report to the Government. (x) The contention of the petitioner that the 5th respondent illegally cut the cables is specifically denied in paragraph 9 of the counter affidavit and further stated that the 5th respondent is only a Multi System Operator (MSO) providing signal to the local Cable Operators and Multi System Operators and it has no role to play in drawing or laying cables for feeding local operators and it is for the local Cable Operators and Multi System Operators to make provision for the same for using cables. (xi) The allegation made in ground (h) that the 5th respondent is interfering with the business of the petitioner company is denied by stating that the employees of the 5th respondent are restricted to control room only and they do not have any role to play in areas, where the cables are laid or drawn. The 5th respondent is not interfering with the business of any company and it is carrying on business according to the rules and regulations. 4. The respective District Collectors and Commissioner of Police, Coimbatore and Erode Districts, and the Superintendent of Police, Tiruppur District, have filed separate counter affidavits on the same line as that of the 5th respondent. In all the said counter affidavits it is stated that the petitioner has not obtained any licence under Rule 3 of the Tamil Nadu Municipalities Television Cable Installation Regulation Rules, 2000 and as and when any complaint is received from the petitioner, appropriate action is taken by the police authorities by registering cases. 5. The details regarding the cases registered by B7 Police Station, coimbatore city on 8.9.2011; by B2 R.S.Puram Police Station, Coimbatore city on 9.9.2011; by B11 Saibaba Colony Police Station on 5.9.2011; by B3 Kattur Police Station, Coimbatore City on 2.9.2011; and by B12 Ukkadam Police Sttation, Kovai city on 8.9.2011, are produced before this Court for perusal. 6. Mr.P.S.Raman and Mr.N.Vijay Narayan, learned Senior Counsels appearing for the petitioner contended that the 5th respondent commenced Cable TV operations on 2.9.2011 by illegally connecting cables in the petitioner's Head Ends and illegally utilising the petitioner's infrastructure. The petitioner has paid route rents from 2002 onwards, even though no formal order of permission/licence under Rule 3 has not been obtained from the local authority concerned. There are about 200 local cable operators engaged by the petitioner and they were forced to come under the 5th respondent and there is complete black out of the petitioner's cable TV operations in the above three districts. The action of the 5th https://hcservices.ecourts.gov.in/hcservices/ respondent amounts to interfering in the right of the petitioner to dissimate information as guaranteed under Article 19(1)(a) of the Constitution of India and the consumers are prevented from getting channels of their choice. It is also contended that the 5th respondent can only provide free channels as it has not obtained licence from TRAI till date and therefore it cannot get any connection from the pay channels. Learned Senior Counsels also argued that the 5th respondent is committing piracy under section 37 of the Copy Rights Act and it is in effect a state sponsored piracy. The learned Senior Counsels also submitted that in spite of giving complaints against local cable TV operators, no action is taken by the Police, as the 5th respondent is owned by the Government of Tamil Nadu. 7. The learned Advocate General on the other hand submitted that the petitioner is running cable TV operations unauthorisedly without getting licence as required under Rule 3(3) of the Rules, 2000. The municipal corporation poles are being used by the petitioner without getting any permission. If any of the local cable operator is switching over to the 5th respondent Corporation, the 5th respondent cannot be blamed. The petitioner has failed to implead the local cable TV operators as well as the local bodies, and without their presence no adjudication is possible to decide the issue raised in these writ petitions. The 5th respondent is only giving signal and no piracy as alleged by the petitioner is committed by the 5th respondent. If at all the petitioner has got any grievance, it has to proceed only against the cable operators. The learned Advocate General further submitted that mere remitting of route rent to the respective local body cannot be construed as grant of licence by the respective local body for laying of cables. The alleged cable lines provided by the petitioner being illegal, the petitioner cannot maintain these writ petitions, even if there is any violation by anyone. The learned Advocate General also cited the judgment of the supreme Court reported in 2005 (5) CTC 695 (SC) (S.D.O. Grid Corporation of Orissa Ltd. v. Timudu Oram) to stress the proposition that disputed question of facts cannot be decided in writ petitions. The learned Advocate General also relied on the judgment of this Court made in W.P.No.17566 of 2008 dated 19.8.2008 (Sun TV Network Ltd. v. State of Tamil Nadu & Others) and (2008) 1 MLJ (Crl) 1393 (SC) (Sakiri Vasu v. State of U.P.) to support his contention that the writ petition is not the remedy even if any right of the petitioner is affected. The learned Advocate General also submitted that the complaints given by the petitioner are under investigation. 8. In reply to the said submissions, the learned Senior Counsels submitted that the fibre cables are owned only by the petitioner and it is not possible to the local Cable Operators to get connection as per the Telecommunication Regulations issued in the year 2004. The Multi System Operators alone can transmit the signals and therefore the petitioner has made out a case to issue a writ of https://hcservices.ecourts.gov.in/hcservices/ mandamus as prayed for. 9. I have considered the rival submissions made by the learned Senior Counsels as well as the the learned Advocate General assisted by the Additional Government Pleaders. 10. The point for consideration in these writ petitions is as to whether the writ petitions praying for issuing writ of mandamus forbearing the respondents from interfering with the petitioner's peaceful running of the cable TV business is maintainable on the facts and circumstances of the case. 11. It is the specific case of the 5th respondent in the counter affidavit that in the year 2008, 5th respondent Corporation created necessary infrastructures for giving Digital Cable TV Head Ends at several places including Coimbatore, by spending a sum of Rs.61.34 crores and after some time the 5th respondent Corporation could not continue cable TV operations due to disruption of its services. The said cable TV operation was revived from 2.9.2011 from its existing four Digital TV Head Ends at Thanjavur, Tirunelveli, Coimbatore and Vellore and from the control rooms handed over by the private operators in the remaining 27 districts, except Chennai. It is also the specific case of the 5th respondent that it is only providing signal feed from the respective control room and all local Cable Operators and Multi System Operators shall use their own cable network to take signals to viewers. It is also the case of the 5th respondent that it is not laying or drawing cables. Throughout Tamil Nadu 35,248 local cable operators and 2,641 multi system operators have enrolled with the 5th respondent for getting signals and they have also expressed their willingness to hand over their control rooms to the 5th respondent. Thus, it is the specific case of the 5th respondent that the 5th respondent Corporation had not cut the cables or utilising the cables, provided by the petitioner. 12. The Tamil Nadu Municipalities Television Cable Installation Regulation Rules, 2000, which came into force from 5.5.2000, particularly, Rule 3 contemplates that any person intending to commence operation of giving cable TV connection in any area within the municipal limits, shall apply to the Commissioner in part-I Form- 1 for provisional permission to install cables on street light poles over public roads and streets or to erect separate poles in any road or street within the municipal limit for installing such television cables. Every application submitted under sub-rule(1) for provisional permission shall be accompanied by sketch indicating the number of street light poles to be used, the number of additional poles required to be erected and under Rule 3(3), the Commissioner shall, on receipt of the application scrutinise it and if satisfied about the information furnished by the applicant, grant a provisional permission in part-II, Form-I after receiving the annual rent for such installation of television cables in accordance with Rule 4 and https://hcservices.ecourts.gov.in/hcservices/ subject to the conditions and as per Rule 3(5), on satisfaction of the laying of cables in accordance with conditions, provisional permission under sub-rule (1) and subject to provisions contained in the Act, No Objection Certificate in part-II of Form-II will be issued. The rent payable is also provided in Rule 4. 13. The petitioner has filed receipts for having paid track rent. Neither the application submitted as required under Rule 3, nor provisional permission granted by the Commissioner or NOC issued by the Commissioner is filed in the typed set of papers. On the contrary, it is the contention of the petitioner that having received the track rent, permission is deemed to be granted. Nowhere in the rules it is stated that if an application is submitted and no order is passed, the permission/NOC is deemed to be granted. Thus, the learned Advocate General may be justified in contending that the petitioner is doing cable TV network not in accordance with the said rules. However, the said issue is a separate one and this Court is not justified in going into the said matter in view of the limited prayer made in these writ petitions. 14. The contention of the learned Senior Counsels for the petitioner that the police are not taking action in spite of giving complaints, is not sustainable in view of the fact that several complaints were entertained by the respective police station and some copies are produced before this Court. Even assuming that any such complaint is not entertained by any of the police officer or police station, the petitioner has got other remedies viz., it can invoke the provisions contained in Section 154(3), 156(3) and Section 200 Crl.P.C. Same is the view taken by this Court in W.P.No.17566 of 2008 dated 19.8.2008. The learned Judge (K.V.,J.) dismissed the said writ petition filed by Sun TV Network Limited almost on similar facts, wherein also allegation was made to the effect that the Royal Cable vision has illegally tapped signals and police failed to take action in spite of giving complaints. The learned Judge relying upon the Division bench Judgment of this court reported in 2005 (3) LW 87 (Venu Srinivasan v. Krishnamachari and Others); AIR 1976 SC 1672 (V.Devarapalli v. Narayana); AIR 1997 SC 3104 (Madu Bala v. Suresh Kumar); (2004) 7 SCC 768 (Gangadhar Janardhan Mharte v. State of Maharashtra); (2005) 1 MLJ 435 (Tamil Nadu State Transport Corporation v. C.Durai); and (2008) 1 SCC (Crl) 440 (Sakiri Vasu v. State of U.P. And Others) and other decisions, held that for the cases of this nature, petitioner therein cannot seek remedy under Article 226 of the Constitution of India and dismissed the writ petition. 15. On perusal of the pleadings and the arguments advanced, the facts in these writ petitions are also in dispute. It is a well settled proposition of law that disputed questions of facts cannot be agitated in writ proceeding filed under Article 226 of the Constitution of India. In the decision reported in (2006) 4 SCC 501 https://hcservices.ecourts.gov.in/hcservices/ (P.R.Murlidharan v. Swami Dharmananda Theertha Padar) the Supreme Court held that jurisdiction under Article 226 would remain effective and meaningful only when it is exercised prudently and in appropriate situation, and writ of mandamus cannot be sought for, especially when determination of the questions involved did not merely involve interpretation of documents alone, but require adducing of oral evidence, and writ proceedings cannot be a substitute for a civil suit. In (2008) 5 SCC 632 (Rajasthan State Electricity Board v. Union of India and Others) it is held that if there is an admitted liability, the High Court need not relegate the appellant to seek alternate remedy. In the said case there was no disputed question of fact arose. Hence the Honourable Supreme Court did not agree with the High Court in directing the appellant to resort to alternate remedy. 16. In the decisions reported in AIR 1976 SC 475 : (1976) 1 SCC 292 (Arya Vyasa Sabha and Others v. Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Others); AIR 2003 SC 1060 : (2003) 2 MLJ 49 : (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. And Another); (2001) 7 SCC 1 (Steel Authority of India Ltd. v. National Union Waterfront Workers); (2006) 9 SCC 256 (Himmat Singh v. State of Haryana and Others); (2007) 7 MLJ 687 (Food Corporation of India v. Harmesh Chand); 2005 (5) CTC 695 (SC) (S.D.O.Grid Corporation of Orissa Ltd. v. Timudu Oram) etc., also the Honourable Supreme Court held that disputed facts cannot be decided in writ petition and parties can approach the appropriate forum. I had an occasion to consider the said issue in the decision reported in (2009) 1 MLJ 746 (D.Subramanian v. Collector, Vellore District)