Stay not granted on DTH Operators challenge to TRAI Regulations in the Delhi High Court despite ferocious arguments from the Petitioners, matter to be heard on Stay after the Supreme Court hearing on the challenge to Regulations by Star on 28.08.2018

The matter (RE: WP/4091 /2017 Bharti Telemedia Pvt. Ltd. & Anr. Vs. Telecom Regulatory Authority of India and other Writ Petitions) was listed on 03.08.2018 in Court No. 3 before the Division Bench of Justice Sanjiv Khanna and Justice Chander Shekhar in RE: WP/4091 /2017 Bharti Telemedia Pvt. Ltd. & Anr. Vs. Telecom Regulatory Authority of India among other similarly placed Writ Petitions as item No. 6.

In the matter, Senior Counsel Mr. Amit Sibal appeared on behalf of Petitioner No. 1 Bharti Telemedia Pvt. Ltd. and Senior Counsel Mr. Kapil Sibal appeared on behalf of Petitioner No. 2 Tata Sky Ltd.. Apart from them, Senior Counsel Mr. Nanju Ganpathy appeared on behalf of Discovery Communications India. On the side of the Respondents, Senior Counsel Mr. Rakesh Dwivedi appeared on behalf of TRAI and Senior Counsel Mr. Ramji Srinivasan appeared on behalf of Intervenor All India Digital Cable Federation.

Ld. Senior Counsel for the Petitioner Tata Sky begin his arguments for grant of a stay in the present Impugned Regulations and Tariff Order. At the outset it was stated by the Petitioners that the case pending before the Hon’ble Supreme Court which also involved a challenge to the impugned Regulations is on a completely different subject matter. The Ld. Sr. stated that the case before the Delhi High Court is not on grounds of Copyright violation but on merits against the impugned Regulations and Tariff Order. Ld. Sr. Counsel Mr. Amit Sibal submitted before the Hon’ble Bench that the TRAI’s notification of the present Regulations on 03.07.2018 itself has been on want of legality as the Order dated 20.01.2017 by the Supreme Court clearly directs TRAI that in case it recieved a favorable Order in before the challenge in the Madras High Court, TRAI will have to take leave of the Hon’ble Supreme Court before notifying the present Regulations so that in such a case, the Petitioners in the present case, among others could argue on the short point of whether a stay should be granted on the implementation of the Regulations or Tariff Order or not.

One of the intervenors appearing on behalf of certain Consumer organizations also stated that interests of many parties including consumers is involved and pressed for a stay on the basis that they did not get a chance to appear either before the Madras High Court or the Hon’ble Supreme Court in the challenge to the Regulations.

Ld. Senior Counsel appearing for TRAI submitted that the Hon’ble Supreme Court in the matter of challenge to the same Regulations has given time til 28.08.2018 to complete pleadings on the limited issue of stay of Regulations and thus it would be appropriate that the Hon’ble Delhi High Court before granting any interim relief may wait on the decision of the Hon’ble Supreme Court on 28.08.2018. The Ld. Senior also stated that since there will be a series of procedures that have to be followed / fulfilled by the various stakeholders, a non grant of stay on the Regulations will not cause any damage to any party.

Ld. Senior Counsel Mr. Ramji Srinivasan on behalf of Intervenor All India Digital Cable Federation contended that the entire industry has contended with the Regulations in their present form and it is only the parties appearing on the side of the Petitioners and Star that are aggrieved with the same and do not pose a legitimate challenge to the same.

The Ld. Bench observed that since the Regulations would contain penal consequences to non compliance of Regulations, the Hon’ble Bench adhered to TRAI’s request to hear the matter of stay after the decision of the Hon’ble Supreme Court but requested the Ld. Counsel for TRAI to assure the Stakeholders / Petitioners that no action shall be taken against them. The Hon’ble Bench did not pass an Order for coercive action not to be taken against defaulting service providers but assured that if the same is initiated by TRAI, they could approach the Hon’ble Bench for relief. Keeping in mind that the notification dated 03.07.2018 could prejudice the interests of all stakeholders, the Hon’ble Bench offered a date in early September and after taking a general consensus fixed the matter for hearing on stay of Regulations on 06.09.2018.

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