MODIFIED DRAFT

10.02.2014

BEFORE THE TELECOM DISPUTES SETTLEMENT

AND APPELLATE TRIBUNAL AT NEW DELHI
IN
PETITION NO. 358 (c) OF 2013
IN THE MATTER OF:
ADHIKAAR

THE

RIGHTS

PATH,

GURGAON

..PETITIONER
VERSUS
TATA

SKY

LTD.

MUMBAI

..RESPONDENT

REPLY ON BEHALF OF THE RESPONDENT TO THE

PETITION FILED

BY THE PETITIONER

MOST RESPECTFULLY SHOWETH:

I.

The contents of the Petition under reply to the extent

they are not expressly admitted in this reply may be
treated as denied and traversed.

II.

Before giving parawise reply, the Respondent would like

to make the following PRELIMINARY SUBMISSIONS:

A.

The petition under reply is devoid of merits and is liable

to be dismissed on that ground alone. In addition, the
Petition ought to be dismissed with exemplary costs as
the same appears to have been filed at the best of
1
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

someone having vested interests. A perusal of the

petition would show that this is proxy litigation and
under the garb of this public interest litigation, the
Petitioner is trying to pressurize the Respondent into
carrying certain channels, namely, Neo Sports and Neo
Prime, at exorbitant rates and terms unacceptable to the
Respondent.
B.

As aforesaid, the Petitioner does not have any locus to

file the petition under reply. The Petitioner claims to be
an NGO registered under the Societies Registration Act,
1860. However, the Petitioner has not filed any of its
charter documents, including its registration certificate
and memorandum of association. It has not given any
details of the litigation conducted by it in public interest
or even any causes ever espoused by it on behalf of the
public at large.

C.

This petition is an obvious attempt by busybodies for

extraneous and ulterior motives. The Petitioner has no
locus standi to file the present petition against the
Respondent. Indisputably, the Petitioner does not have
any grievance against the Respondent. It is not even a
subscriber of the Respondent. The Petitioner has baldly
claimed that it has filed the Petition on behalf of some
alleged

consumers

of

the

Respondent,

who

have

allegedly complained to the Petitioner against the

Respondent. In support of its claim, the Petitioner has
2
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

filed some letters styled as Authority Letter, purported

consumers

of

the

Respondent.

However,

the

authenticity of the same is disputed by the Respondent.

The Petitioner has not filed any proof of the payments by
the said purported consumers etc.
D.

Without prejudice to the aforesaid, it is submitted that

this petition is not maintainable in view of the bar under
Section 14 of the Telecom Regulatory Authority of India
Act, 1997. Under the Act, the Honble Tribunal has
jurisdiction to adjudicate any dispute between a licensor
and a licensee, between two or more service providers,
between a service provider and a group of consumers.
However, the Petitioner does not fall in either of the
categories of person whose dispute can be adjudicated
by the Honble Tribunal.

E.

It is submitted that it is a settled principle of law that a

person filing public interest litigation has to satisfy the
court on its bonafides and the genuineness of the
complaint and the same should be aimed at redressal of
genuine public wrong or public injury and not publicity
oriented or founded on personal vendetta, as the same
is being done by the Petitioner. It is submitted that the
Petitioner has with vested interest indulged in meddling
with judicial process and has filed the present petition
with trying to bargain for a good deal as well for its own
unjust enrichment. The Petitioner has filed the present
3
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

petition by a desire to win notoriety or cheap popularity.

Thus, the petition deserves to be rejected at the
F.

threshold with exemplary costs.

The Honble Supreme Court has time and again passed
judgments inter-alia, reiterating the principles to be
applied before entertaining a public interest litigation
which include amongst others :
a.
the credentials of the applicant;
b.
the prima facie correctness or nature of information
c.

given by him;
the information being not vague and indefinite. The
information should show gravity and seriousness
involved. Court has to strike balance between two

d.

conflicting interests;
nobody should be allowed to indulge in wild and
reckless allegations besmirching the character of

e.

others; and
avoidance of

public

mischief

and

to

avoid

mischievous petitions seeking to assail, for oblique

motives, justifiable executive actions.
G.

In the present petition filed by the Petitioner none of the

requirements to be fulfilled before filing of petition in
public interest have been met by the Petitioner. The
present petition has been filed by the Petitioner only to
harass the Respondent and gain publicity out of the
good will earned by the Respondent through the years
and

also

to

tarnish

the

Reputation

held

by

the

Respondent in the market.

4
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

H.

The Respondent has not made or given any assurance or

promise as alleged to the alleged consumers whom the
Petitioner purportedly represents. It is well settled
principle of law that a man cannot be asked to prove the
negative. The onus is on the person making the
allegations, i.e., the Petitioner herein. The Petitioner has
not given any factual details or documentary proof but
has made wild allegations against the Respondent
without any basis or evidence. The Petitioner has not
given any details of its subscribers and to which plans
have they subscribed and paid for. There is no factual
foundation on the basis whereof the reliefs prayed for
can be granted. The Petitioner wants relief by virtue of
making prejudicial allegations against the Respondent
without giving any proof in support thereof, which
cannot be done.

I.

The Petitioner has failed to understand the regulatory

framework and erroneously alleged that the Respondent
is bound to carry Neo Sports and New Primes channels.
The Petitioner has failed to appreciate that the law is
well settled that a distributer of signals is not bound to
carry any particular channel. Thus, the Petitioner, being
a DTH operator, is not legally bound to carry any
channel.

J.

The

Petitioner

has

alleged,

without

any

basis

or

evidence, that the Respondent had represented that it

5
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

has maximum number of channels across all genres,

especially in sports genre and that in its Mega Pack all
sport channels including New Sports and Neo Prime are
available. Tata Sky has never made any such claim or
representation. The packages with channel listing and
their prices are always available on www.tatasky.com.
This is not to be confused with the Mega Pack that
offers all channels & services available on Tata Sky as
part of the Mega Pack except Specials which do not form
part of any Pack but are currently, being offered only on
a-la-carte basis.
K.

The Agreement between the Respondent and the

Channel Provider was to expire on 30.09.2013 and was
not being renewed. Hence, as required by law, the
Respondent had to notify its subscribers about the same.
The Respondent duly followed the procedure established
in law for discontinuation of channels from its platform
as laid down in The Telecommunication (Broadcasting
and cable services) Interconnection Regulation, 2004.
Regulation 4.3 provides that a notice of three weeks has
to be given by the Respondent to its subscribers
informing

them

about

the

discontinuation

of

the

channels from its platform by publishing the same in the

two national newspapers. Accordingly, the Respondent
published the requisite notice on 21.09.2013 in Indian
Express and Aaj informing its subscribers that the Neo
6
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

Sports and Neo Prime shall be discontinued due to nonrenewal of the Distribution Agreement with the channel
provider with effect from 12.10.2013.
L.

Subscribers who had subscribed to Neo Prime and/or

New Sport as as an add-on pack or a-la-carte
channel, paid for them on a monthly basis. The said
channels, were dropped from their accounts from the
day the channels were discontinued and they were not
charged for the same from the said date. Further, the
amount paid for the said channels for the period from
the date of discontinuation was refunded and credited
into the subscribers accounts. It would also not be out
of place to mention that in the base pack, which
contained the Neo Channels, two Channels

namely M

Tunes and Zee Anmol were also added prior to

disconnection of Neo Channels from Tata Sky Platform,
thereby

ensuring

that

the

Subscribers

are

not

disadvantaged.
M.

Without prejudice to the above, it is submitted that the

Subscription Contract between the Respondent and its
subscribers contains Clause 17.4 on Limitations on
Liability interalia stating as under :
We reserve the right, without any liability
whatsoever to You, to interrupt, suspend,
deactivate, cancel, modify or refuse to provide
the Service or any part of the Service, (i) if We
7
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

determine, in Our discretion, it is necessary

under any Law; (ii) due to a failure or
degradation of any facilities, equipment or
systems used to provide the Service; (iii) to
combat any acts of piracy, fraud or misuse of
the Service; (iv) due to any act beyond Our
control; and (v) for any legitimate business
purpose. In the event of an interruption,
suspension or deactivation of the Service, We
may, in our discretion, reactivate the Service
subject to any conditions that We may require
from time to time.
N.

Further it was clearly agreed in the Subscription Contract

that the Respondent will not be responsible for its
inability to transmit due to circumstances beyond its
control. The relevant provisions of the Subscription
Contract are extracted herein below :
Clause 1(n) of the Subscription contract states as under:
Force Majeure Event: shall mean any reason or
cause beyond the control of Tata Sky including
but not limited to an act of God including fire,
flood,
failure

windstorm
of

or

other

natural

communications,

disaster;

equipment,

machinery; transmission limitations / problems

caused

by

atmospheric,

topographical,
hydrological,

geographical,
environmental

8
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

conditions and / or such other factors / features /

conditions,

system(s)

changes

or

capacity

limitations for reasons of up gradation, variation,

installation, relocations, repairs, operations and /
or maintenance of systems / equipments / the
service; revocation of Tata Skys DTH license;
breach of contract by any content and / or
technology partner(s) of Tata Sky; threat to the
security of Tata Sky Personnel (including the
Engineer); theft, tampering with or damage to
Tata Sky property or facilities.
Clause 7.12 of the Subscription Contract states as under:
We shall not be responsible or liable to you for
interrupting, disruption, deactivation of service
after Installation on account of any Force Majeure
Event.

PARA WISE REPLY:

1.

The contents of Para 1 are wrong and denied. It is

denied that the Respondent has violated the Direct-ToHome Broadcasting (Standards of

Quality of Service

and Redressal of Grievances ) Regulation, 2007 as

alleged or otherwise. The Respondent has always
followed

the

Regulations

as

applicable

to

the

Respondent and has always provided the best services

to its subscribers. The Petitioner has filed the present
9
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

petition against the Respondent without their being any

merit in the Petition and without the Petitioner having
any locus to file the same. The Petitioner has not placed
on record any information about the group of consumers
on whose behalf the present petition has been filed. As
laid down in Section 14 of the TRAI act, a complaint can
be filed by a group of consumers on their behalf, but the
Petitioner is not a group of consumers.
2.

The Respondent is a company engaged in the business

of providing Direct to Home services to customers in
India and has earned the trust and good will of its
customers by providing best of services over the years.

3.

The contents of Para 3 are wrong and denied. It is

submitted that the Petitioner has not placed on record
any grievances raised by any consumer on whose behalf
the present Petition has been filed by the Petitioner. The
Petitioner has alleged very vague allegations against the
Respondent without raising any specific grievance or
giving any documentary proof in support thereof.

(a)

The contents of Para 3 (a) are wrong and denied It is

wrong and denied that the Respondent has made any
false and wrong representation as alleged or otherwise
to its customers. It is submitted that the Respondent has
always provided the best services to its customers and is
trusted by its customers.

10
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

(b)

The contents of Para 3 (b) are wrong and denied. It is

denied by the Respondent that it has ever lured its
customers into believing that Respondent has the
maximum number of channels on its platform. The
Respondent gives its customers, details of the various
packages and a-la-carte channels being offered at the
time, on basis whereof, the customer selects the
package(s) and/or ala carte channels which he wants to
avail from the platform of the Respondent. Tata Sky has
never made any such claim or representation. The
packages with channel listing and their prices are always
available on

www.tatasky.com.

This is not to be

confused with the Mega Pack that offers all channels &
services available on Tata Sky as part of the Mega Pack
except Specials which do not form part of any Pack but
are currently, being offered only on a-la-carte basis.

(c)

The contents of para 3 (c) are wrong and denied . The

Petition has with the sole intention of prejudicing the
Honble Tribunal used words such as shocked to see
advertisement that Neo Sports and Neo Prime would
not be carried

on the Respondent Platform w.e.f

12.10.2013. The Agreement between the Respondent

and the Channel Provider was to expire on 30.09.2013
and was not being renewed. Hence, as required by law,
the Respondent had to notify its subscribers about the
11
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

same. The Respondent duly followed the procedure

established in law for discontinuation of channels from
its platform as laid down in The Telecommunication
(Broadcasting

and

cable

services)

Interconnection

Regulation, 2004. Regulation 4.3 provides that a notice

of three weeks has to be given by the Respondent to its
subscribers informing them about the discontinuation of
the channels from its platform by publishing the same in
the

two

Respondent
21.09.2013

national

newspapers.

published

the

Accordingly,

requisite

notice

the
on

in Indian Express and Aaj informing its

subscribers that the Neo Sports and Neo Prime shall be

discontinued due to non-renewal of the Distribution
Agreement with the channel provider with effect from
12.10.2013.
(d)

That the contents of Para 3 (d) are wrong and denied for
want of knowledge. It is denied that the channels were
discontinued at the behest of the Respondent.

(e) to (h)

The contents of Para 3 (e) to (h) are wrong and

denied. The Respondent has never made any false

representation to its subscribers and has not committed
any

breach

of

contract

with

its

subscribers.

The

Respondent has not taken anyone for a ride and has not
misrepresented or concealed anything. The Petitioner
has alleged, without any basis or evidence, that the
12
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

Respondent had represented that it has maximum

number of channels across all genres, especially in
sports genre and that in its Mega Pack all sport channels
including New Sports and Neo Prime are available and
that the composition of the Mega Pack does not change
for a period of one year.

The Petitioner has wrongly

alleged that they were informed by Tata Sky helpline

that there was no plan of adding new channels as
replacement of the Neo Channels or that no refund or
deduction

would

be

given.

Subscribers

who

had

subscribed to Neo Prime and/or New Sport as as an

add-on pack or a-la-carte channel, paid for them on
a monthly basis. It is submitted that while in the ordinary
course, the composition of mega pack does not change,
however, in terms of Clause 17.4 of the Subscription
Contract, the Respondent can change the composition or
any service for legitimate business reasons. Further, in
terms of Clauses 1(n) and 17.12 of the Subscription
Contract,

the

Respondent

cannot

be

blamed

for

circumstances beyond its control. The said channels

were dropped from their accounts from the day the
channels were discontinued and they were not charged
for the same from the said date. Further, the amount
paid for the said channels for the period from the date of
discontinuation was refunded and credited into the
subscribers accounts. In the base pack, which contained
13
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

the Neo Channels,

Anmol_

were

two channels M Tunes_ and Zee

added

thereby

ensuring

that

the

subscribers could enjoy the same number of channels as

earlier.
(i)

That the contents of Para 3 (i) are wrong and denied. As

aforesaid, the Respondent gives its customers, details of
the various packages and a-la-carte channels being
offered at the time, on basis whereof, the customer
selects the package(s) and/or ala carte channels which
he wants to avail from the platform of the Respondent.
The packages with channel listing and their prices are
always available on www.tatasky.com. The Mega Pack
offers all channels available on Tata Sky except Specials.
Tata Sky has never claimed or represented that Specials
are also included within the Mega Pack. Star World
Premiere falls under the category of Specials and is
not a part of the Mega Pack.

7.

The contents of Para 7 are wrong and denied [There is

no para 5 and 6]. The Respondent had never misled its
customers

or

made

any

false

and

incorrect

representations to its customers. It is denied that there

has been deficiency of service on part of the Respondent
as alleged or otherwise. The Petitioner without having
any cause of action has filed the present petition with a
14
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

malicious intention to harm the reputation of the

Respondent.
8.

The contents of Para 8 and 9 are wrong, repetitive and

denied. The Respondent is a company with a reputation
for honesty. It is denied that the Respondent has made
any false representation regarding its services to attract
consumers as alleged or otherwise. It is reiterated that
there is no deficiency in the services provided by the
Respondent as alleged or otherwise.

It is denied that

there is no portability option in set top boxes provided

by the Respondent. The DTH license states that the open
architecture set top box shall have specifications as laid
down by the Government. The government has laid
down BIS standards for the same which state that the
STB

should

have

common

interface

(CI)

slot.

Accordingly, the Respondents set top boxes are BIS

compliant as specified above and meet the requirement
of interoperability under the DTH license. The subscriber
would need to insert a Conditional Access Module
(CAM) containing another DTH operators smart card
into the CI slot and

the mini dish would have to be

repositioned to the relevant orbital location along with

technical parameters being configured into the set to
box by the new DTH operator. Thus, the contention that
there is no portability option in Tata Skys set top boxes
is incorrect.
15
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

9.

That the contents of Para 10 and 11 are wrong and

denied. Subscribers who had subscribed to Neo Prime
and/or New Sport as an add-on pack or a-la-carte
channel, paid for them on a monthly basis. The said
channels, were dropped from their accounts from the
day the channels were discontinued and they were not
charged for the same from the said date. Further, the
amount paid for the said channels for the period from
the date of discontinuation was refunded and credited
into the subscribers accounts. In the base pack, which
contained the Neo Channels, two channels M Tunes and
Zee Anmol were added thereby ensuring that the
subscribers could enjoy the same number of channels as
earlier.

10. That the contents of Para 12 are wrong and denied. The
Respondent published a notice on 21.09.2013 in Indian
Express and Aaj informing its subscribers that the Neo
Sports and Neo Prime shall be discontinued due to nonrenewal of the Distribution Agreement with the Channel
Provider with effect from 12.10.2013. The Petitioner has
itself admitted that notice was issued through the
aforesaid advertisement. Therefore, the Respondent had
given more than 15 days notice to its subscribers about
change in subscription package.

16
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

11. That the contents of Para 13 are wrong and denied. The
Respondent has been providing services in accordance
with law and there is nothing unfair about the same. It is
Petitioner who is guilty of continuous abuse of the
process of court. This is nothing but proxy litigation. It is
evident that the Petitioner is a front for some vested
interests and under the garb of this public interest
litigation, the Petitioner is trying to pressurize the
Respondent into carrying Neo Sports and Neo Prime at
exorbitant

rates

and

terms

unacceptable

to

the

Respondent. It is submitted that the Petition should be

dismissed with exemplary costs.
12. That the contents of Para 14 are wrong and denied.
Subscribers who had subscribed to Neo Prime and/or
New Sport as as an add-on pack or a=la-carte
channel, paid for them on a monthly basis. The said
channels, were dropped from their accounts from the
day the channels were discontinued and they were not
charged for the same from the said date. Further, the
amount paid for the said channels for the period from
the date of discontinuation was refunded and credited
into the subscribers accounts. In the base pack, which
contained the Neo Channels,

two channels M Tunes_

and Zee Anmol_ were added thereby ensuring that the

subscribers could enjoy the same number of channels as
earlier.
17
AGARWAL LAW ASSOCIATES

MODIFIED DRAFT
10.02.2014

13. That the contents of Para 15 are wrong and denied. As

submitted above, the Petitioner does not have any locus
or cause of action to file the present petition. The
Petitioner has no rights qua the Respondent and hence,
cannot approach this Honble Tribunal.
14. That the contents of Para 16 are wrong and denied. It is
humbly submitted that the Honble Tribunal does not
have jurisdiction to entertain the present petition as the
petitioner is not covered in any of the categories of
persons under Section 14 of the TRAI Act, for which the
Honble Tribunal has jurisdiction to entertain the appeal.
15. That the contents of Para are denied for want of
knowledge.
In view of the above facts and circumstances, it is most
respectfully prayed that this Honble Tribunal may be
pleased to dismiss the Present Petition filed by the
Petitioner with exemplary costs.
RESPONDENT
THROUGH
AGARWAL LAW
ASSOCIATES

18
AGARWAL LAW ASSOCIATES