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CASE NO.: Appeal (civil)  2061 of 2006

PETITIONER: Hotel & Restaurant Assocn. and Anr.                              

RESPONDENT: Star India Pvt. Ltd. and Ors.                                    

DATE OF JUDGMENT: 24/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T W I T H  

CIVIL APPEAL NO. 2247 OF 2006 S.B. SINHA, J :

       Appellants are members of Hotel Association of India and Hotel &  Restaurant Owners Association (Western India), EIH Limited and Eastern  International Hotels Ltd.  The members of Hotel Association of India are  owners of big hotels whereas the members of Hotel & Restaurant Owners  Association (Western India) are owners of small hotels.  They provide  television services to their guests.  Respondents herein are broadcasters or  distributors.  The television services provided for by the broadcasters to the  actual consumers are carried through distribution of Cable or Multi System  Operators (MSOs).  Whereas ordinarily in the small hotels cable operators  give signal to all the rooms wherefor separate charges are levied; the  services provided in the big hotels are through an equipment installed for the  said purpose known as Head End.  The signals are received through  satellites.  They have contracts with the broadcasters directly.   

       The Parliament enacted the Cable Television Networks (Regulation)  Act, 1995 (for short "the 1995 Act") to regulate the operation of cable  television networks in the country and for matters connected therewith or  incidental thereto.   

       "Cable operator", "cable service" and "cable television network" as  defined in Section 2 of the 1995 Act read as under:

"(aa)   "cable operator" means any person who  provides cable service through a cable television  network or otherwise controls or is responsible for  the management and operation of a cable  television network;   (b)     "cable service" means the transmission by  cables of programmes including re-transmission by  cable of any broadcast television signals;    (c)     "cable television network" means any system  consisting of a set of closed transmission paths and  associated signal generation, control and  distribution equipment, designed to provide cable  service for reception by multiple subscribers;"   

       Chapter II of the 1995 Act provides for cable television network to be  operated only upon registration thereof.  Section 4-A of the 1995 Act  provides for transmission of programmes  through addressable system.   Some regulations in regard to the operation of cable operators are provided

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for in the 1995 Act.  Sub-section (9) of Section 4-A which is relevant for our  purpose reads as under:

"(9) Every cable operator shall submit a report to  the Central Government in the prescribed form and  manner containing the information regarding -- (i) the number of total subscribers;  (ii) subscription rates; (iii) number of subscribers receiving programmes  transmitted in basic service tier or particular  programme or set of programmes transmitted on  pay channel, in respect of cable services provided by such cable  operator through a cable television network, and  such report shall be submitted periodically at such  intervals as may be prescribed and shall also  contain the rate of amount, if any, payable by the  cable operator to any broadcaster."

       In the year 1997, the Telecom Regulatory Authority of India Act,  1997 (for short "the TRAI Act") was enacted which came into force from  28th March, 1997.  By reason of the TRAI Act, a Telecom Regulatory  Authority of India (TRAI) and an Appellate Authority known as Telecom  Disputes Settlement and Appellate Tribunal (TDSAT) were constituted.

       "Service provider" and "telecommunication service" have been  defined in Sections 2(1)(j) and 2(1)(k) of the TRAI Act in the following  terms:

"(j)      "service provider" means the Government  as a service provider and includes a licensee;   (k)      "telecommunication service" means service  of any description (including electronic mail, voice  mail, data services, audio tex services, video tex  services, radio paging and cellular mobile  telephone services) which is made available to  users by means of any transmission or reception of  signs, signals, writing, images and sounds or  intelligence of any nature, by wire, radio, visual or  other electromagnetic means but shall not include  broadcasting services:  

Provided that the Central Government may notify  other service to be telecommunication service  including broadcasting services."

       In exercise of its power under the proviso appended to Section 2(1)(k)  of the TRAI Act, the Central Government issued a notification on 9.01.2004  notifying broadcasting and cable services to be telecommunication services.   

       On 15.01.2004, a Tariff Order known as "The Telecommunication  (Broadcasting and Cable) Services Tariff Order, 2004" was issued by TRAI  freezing the charges prevalent on 26.12.2003 till final determination by it on  the various issues concerning those charges.  The same was to apply in both  Conditional Access System (CAS) and non-CAS areas.  The said Tariff  Order was amended on 10.03.2004 known as "The Telecommunication  (Broadcasting and Cable) Services Tariff (First Amendment) Order, 2004"  in terms whereof classification and non-classification of CAS and non-CAS  areas were done away with.  Chennai, however, was excluded from the  operation thereof.  The said Order was amended again on 13.08.2004  wherewith we are not concerned herein.

       On or about 1.10.2004, a new Tariff Order for cable and broadcasting  services called "the Telecommunication (Broadcasting and Cable) Services

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(Second) Tariff Order, 2004" was issued by TRAI.  It inter alia laid down  definitions for various entities such as MSOs, broadcasters and cable  operators and reiterated the ceiling/ freeze prescribed by the first Tariff  Order.  Definitions of "broadcaster", "broadcasting services", "cable  operator", "cable service" and "cable television network" were provided  therein which are as under:

"(a) ’broadcaster’ means any person including an  individual, group of persons, public or body  corporate, firm or any organisation or body who/  which is providing broadcasting service and  includes his authorised distribution agencies;  (b) ’broadcasting services’ means the  dissemination of any form of communication like  signs, signals, writing, pictures, images and sounds  of all kinds by transmission of electro magnetic  waves through space or through cables intended to  be received by the general public either directly or  indirectly and all its grammatical variations and  cognate expressions shall be construed  accordingly; (c) ’cable operator’ means any person who  provides cable service through a cable television  network or otherwise controls or is responsible for  the management and operation of a cable  television network; (d) ’cable service’ means the transmission by  cables of programmes including re-transmission by  cables of any broadcast television signals; (e) ’cable television network’ means any system  consisting of a set of closed transmission paths and  associated signal generation, control and  distribution equipment designed to provide cable  service for reception by multiple subscribers;"

       In regard to the tariff, it was stated:

"The charges, excluding taxes, payable by\027 (a) Cable subscribers to cable operator; (b) Cable operators to multi system  operators/broadcasters (including their authorised  distribution agencies); and (c) Multi system operators to broadcasters  (including their authorised distribution agencies) prevalent as on 26 December 2003 shall be the  ceiling with respect to both free-to-air and pay  channels.       Provided that if any new pay channel(s) that  is/are introduced after 26.12.2003 or any  channel(s) that was/were free to air channel on  26.12.2003 is/are converted to pay channel(s)  subsequently, then the ceiling referred to as above  can be exceeded, but only if the new channel(s) are  provided on a stand alone basis, either individually  or as part of new, separate bouquet(s) and the new  channel(s) is/ are not included in the bouquet being  provided on 26.12.2003 by a particular  broadcaster. The extent to which the ceilings  referred to above can be exceeded would be  limited to the rates for the new channels. For the  new pay channel(s) as well as the channel(s) that  were free to air as on 26.12.2003 and have  subsequently converted to pay channel(s) the rates  must be similar to\026the rates of similar channels as

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on 26.12.2003:        Provided further that in case a multi system  operator or a cable operator reduces the number of  pay channels that were being shown on  26.12.2003, the ceiling charge shall be reduced  taking into account the rates of similar channels as  on as on 26.12.2003."

                On 1.12.2004, the Telecommunication (Broadcasting and Cable)  Services (Second) Tariff (Second Amendment) Order, 2004 was notified  permitting a 7% increases in the charges on account of inflation.  A  Regulation termed as "The Register of Interconnect Agreements  (Broadcasting and Cable Services) Regulation, 2004" was issued by TRAI  on 31.12.2004 wherein  ’consumer’ was defined to mean ’any person who is  subscriber of any broadcasting service(s) in the country’.

       The broadcasters had fixed charges for providing television services  to domestic consumers.  They sought to make demands to increase the rates  of the hotels on the premise that TRAI had announced an increase of 7%  over the rates prevalent on 26.12.2003 (ceiling rate) would be permitted on  the ground of inflation.  Appellants \026 Hotel Associations do not dispute the  applicability thereof.   

       In view of a purported arbitrary increase in the rates in regard to  services to the hotels, Appellants \026 Hotel Associations sought for  intervention of TRAI so as to enable them to guide their members in regard  to renewal of contracts, for continuity of supply of feed by their respective  television channel broadcasters stating:

"The proposed increase in the rates demanded by  the Broadcasters is completely arbitrary and  without any basis or justification.  It is a blatant  manifestation of their monopolistic position by the  Broadcasters, who have formed a cartel.  It  tantamounts to exploitation of hotels, leaving them  no choice other than to comply with the unilateral  increase in rates by 30th March, 2005 failing which  their channels will be deactivated.   

It will be appreciated that viewing television  channels in hotels is an important guest facility for  tourists and international traveler, staying in hotels  which provide facilities and services of  comparable  nature of standards as followed with  other countries.  The threatened deactivation of  channel from 30th March, 2005 if implemented  would result in great inconvenience to and  complaints from international visitors and from the  tourists staying in hotels.  It would be highly  detrimental and damaging to the image of tourism  in India and would undermine the various  measures, which the government and the tourism  industry are jointly taking in public private  partnership to promote tourism to India."           Notices were issued by TRAI to the broadcasters.  However, having  regard to the threat of disconnecting the services by the broadcasters unless  the rates demanded by them were paid, Appellant \026 Hotel Association of  India filed an application marked as Application No. 32(C) of 2005 before  TDSAT praying inter alia for the following reliefs:

"i)     Direct the respondents to charge fair, non- discriminatory, non-arbitrary and cost based rates  by the respondents.

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ii)     Direct the respondents to provide the detail  working of the final rental charged and submit  supportive documents and other details as may be  necessary to ascertain that the final rental charged  is fair, cost based, non-arbitrary and non- discriminatory; iii)    Direct the respondents not to deactivate  channels of the members Hotel of the petitioner  No. 1 Association until the final disposal of the  present petition. iv)     Pass ad-interim, interim, ex-parte orders in  terms of the above prayers;\005"

       Appellant \026 Hotel & Restaurant Owners Association (Western India)  also filed a similar application bearing No. 80(C) of 2005.  Indisputably, on  4.04.2005, an interim order directing maintenance of ’status quo as existing  on that date’ was passed by TDSAT.

       On or about 29.11.2005, a Second Order was issued by TRAI  permitting the broadcasters to further increase 4% of the enhanced charges,  (i.e., ceiling charges + 7%) again on account of inflation.  Indisputably,  however, the operation of the said order was stayed.

       Dismissing the applications filed by Appellants, TDSAT in its order  dated 17.01.2006 inter alia opined that hotels are neither the consumers nor  subscribers stating :

"36. Now we come to the question whether the  tariff laid down by the TRAI notification of 26th  December, 2003 is applicable to the members of  the petitioner associations. The said Tariff order  covers the following in its ambit - the charges  payable by (a) Cable subscribers to cable operator;  (b) Cable operators to multi service  operators/broadcasters (including their authorized  distribution agencies); and (c) Multi service  operators to broadcasters (including their  authorized distribution agencies). In the petition  before us we find that the commercial relationship  is between the members of the petitioner  associations (viz., hotels, restaurants etc.) on the  one hand and either cable operators or broadcasters  on the other. We have already concluded that the  members of the petitioner associations cannot be  regarded as subscribers or consumers. As such we  are of the view that the above tariff notification of  the TRAI would not be applicable. It seems that  TRAI has found it necessary to fix the tariff for  domestic purpose. We think the Regulator should  also consider whether it is necessary or not to fix  the tariff for commercial purposes in order to bring  about greater degree of clarity and to avoid any  conflicts and disputes arising in this regard. 37. In view of the above, we are of the opinion that  the respondents are well within their rights to  demand the members of the petitioner associations  to enter into agreements with them or their  representatives for the receipt of signals for actual  use of their guests or clients on reasonable terms  and conditions and in accordance with the  regulations framed in this regard by the TRAI."

       Appellants are, thus, before us in these appeals preferred under  Section 18 of TRAI Act.  

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       Submissions of Appellants inter alia are:

(i)     Keeping in view the scheme of TRAI Act; TDSAT while  exercising its original jurisdiction could not have issued any  direction upon TRAI to frame any tariff and, thus, tariff framed by  TRAI pursuant thereto or in furtherance thereof is without  jurisdiction. (ii)    Tariff framed by TRAI being applicable to all consumers who  obtain telecommunication services, TDSAT committed a serious  error in opining that the same would not apply to commercial  consumers. (iii)   TDSAT having regard to the scheme of the Act and the orders  made thereunder committed a manifest error in holding that the  applications filed by Appellants were not maintainable.

       Counsel appearing on behalf of broadcasters, on the other hand,  submitted: (i)     Appellants do not constitute a "group of consumers" so as to  maintain an application under Section 14(a)(ii) of TRAI Act. (ii)    Tariff Order dated 15.01.2004 and subsequent Tariff Orders dated  1.10.2004 and 1.12.2004 providing for ceiling rates payable by  "cable subscribers" to "cable operators" apply to individual  members of Appellants who use it for commercial purpose and are  transmitting the same to the customers. (iii)   The individual members of Appellants being not governed by the  Tariff Orders dated 7.03.2006 and 24.03.2006 and in any event the  validity thereof having not been challenged by them, all these  appeals have now, therefore, become academic. (iv)    In any event, in terms of the Tariff Order dated 15.01.2004,  Appellants were bound to pay the rates as were prevailing on  26.12.2003 and changed from time to time.   (v)     Five-Star hotels are not ’subscribers’ within the meaning of the  provisions of the said Tariff Orders.  (vi)    Cable operators having not been authorised to give connection to  the commercial establishments, the impugned judgment cannot be  faulted with.   (vii)   In any event, broadcasters having appointed their own authorised  suppliers, the hotel associations were bound to take connection  only from them.   (viii)  As despite a direction issued by TDSAT to the appellants directing  them to disclose the names of the cable operators, they having  failed to do so, are not entitled to any equitable relief.

       Two questions of seminal importance arise for consideration in these  appeals, viz.: (i)     Whether the members of Appellants \026 Associations are consumers  and, thus, were entitled to invoke the jurisdiction of TDSAT in  terms of Section 14 of TRAI Act? (ii)    Whether the Tariff Orders issued by TRAI on 15.01.2004 and  1.10.2004 are inapplicable to members of Appellants \026  Associations, i.e., hotels on the ground that those are commercial  establishments?

       TDSAT in its impugned judgment opined that hotels are not  consumers or subscribers.  It, however, observed that the members of the  hotels associations are de facto MSOs but being not registered do not enjoy  the legal status thereof.

       We may, before embarking upon the legal issues, notice the findings  of TDSAT which are as under:

(i)     The members of Appellants \026 Associations are not subscribers as  contemplated under the 1995 Act. (ii)    Each room of the hotels/ restaurants can be called as a subscriber.   (iii)   The management of the hotels cannot be termed as subscribers.  

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Similarly, various restaurants using cable television cannot be  treated as subscribers.   (iv)    In view of the definition of "consumer" contained in Consumer  Protection Act, 1986 (for short "the 1986 Act"), the users for  commercial purposes having been excluded, members of  Appellants \026 Associations being not users of the signals received  by them cannot be treated as either subscribers or consumers for  the purpose of relief sought for in the petition. (v)     Members of Appellants \026 Associations being not subscribers or  consumers, the Tariff Orders would not be applicable.

       Section 11 of TRAI Act provides for the functions of TRAI.  Clause  (a) of Sub-section (1) of Section 11 of TRAI Act empowers TRAI to make  recommendations either suo motu or on the request from the licensor, on the  matters enumerated therein.  Clause (b) thereof empowers it inter alia to fix  the terms and conditions of inter-connectivity between the service providers.

       Sub-section (2) of Section 11 of TRAI Act contains a non-obstante  clause providing that TRAI may frame from time to time by order (s)  notified in the official gazette the rates at which the telecommunication  services within India and outside India shall be provided under the said Act  including the rates at which messages shall be transmitted to any country  outside India.  Proviso appended to Sub-section (2) thereof empowers TRAI  to notify different rates for different persons or class of persons for similar  telecommunication services and where different rates are fixed as aforesaid  TRAI shall record the reasons therefor.   

       Section 14 of TRAI Act provides for establishment of Appellate  Tribunal known as TDSAT.  In terms of Section 14(a)(iii) inter alia it is  entitled to adjudicate any dispute between a service provider and/ or  consumer.  TRAI Act, in terms of the proviso appended to Section 14,  excludes the applicability of the said clause in respect of matters relating to  the complaint of an individual consumer maintainable before a Consumer  Disputes Redressal Forum or a Consumer Disputes Redressal Commission  or the National Consumer Redressal Commission established under Section  9 of the 1986 Act.  Clause (b) of Section 14 empowers TDSAT to hear and  dispose of an appeal against any direction, decision or order of TRAI under  the TRAI Act.   

       TDSAT, therefore, exercises two different jurisdictions, viz., one,  original and another, appellate.  Exercise of its original jurisdiction is an  adjudicatory function whereas its appellate function is to hear appeal(s)  against an order of TRAI which may or may not essentially be an  adjudicatory one.

       We have noticed hereinbefore that the members of Associations take  TV signals either from Respondents \026 Broadcasters under their respective  contracts or agreements or through cable operators.  Whereas in the former  case, there exists a privity of contract between the broadcasters and the  owners of the hotels, the owners of the hotels admittedly would not come  within the purview of definition of MSOs.  The owners of the hotels take TV  signals for their customers/ guests.  While doing so, they inter alia provide  services to their customers.  An owner of a hotel provides various amenities  to its customers such as beds, meals, fans, television, etc.  Making a  provision for extending such facilities or amenities to the boarders would not  constitute a sale by an owner to a guest.  The owners of the hotels take TV  signals from the broadcasters in the same manner as they take supply of  electrical energy from the licensees.  A guest may use an electrical  appliance.  The same would not constitute the sale of electricity by the hotel  to him.  For the said purpose, the ’consumer’ and ’subscriber’ would  continue to be the hotel and its management.  Similarly, if a television set is  provided in all the rooms, as part of the services rendered by the  management by way of an amenity, wherefor the guests are not charged  separately, the same would not convert the guests staying in a hotel into

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consumers or subscribers.  They do not have any privity of contract with  broadcasters or cable operators.  The identity of the guests is not known to  the broadcasters or cable operators.  A guest may not watch TV or in fact the  room may remain unoccupied but the amount under the contract by the  owners of the hotels whether with the broadcasters or cable operators  remains unchanged.  We, therefore, are of the opinion that the members of  the appellants’ associations are consumers.

       The question in regard to supply of food to a guest by the owner of a  hotel whether constitutes a sale or not came up for consideration before this  Court in The State of Punjab v. M/s. Associated Hotels of India Ltd. [(1972)  1 SCC 472] wherein it was held:

"What precisely then is the nature of the  transaction and the intention of the parties where a  hotelier receives a guest in his hotel? Is there in  that transaction an intention to sell him food  contained in the meals served to him during his  stay in the hotel? It stands to reason that during  such stay a well equipped hotel would have to  furnish a number of amenities to render the  customer’s stay comfortable. In the supply of such  amenities do the hotelier and his customer enter  into several contracts every time an amenity is  furnished? When a traveller, by plane or by steam- ship, purchases his passage-ticket, the transaction  is one for his passage from one place to another. If,  in the course of carrying out that transaction, the  traveller is supplied with drinks or meals or  cigarettes, no one would think that the transaction  involves separate sales each time any of those  things is supplied. The transaction is essentially  one of carrying the passenger to his destination and  if in performance of the contract of carriage  something is supplied to him, such supply is only  incidental to that services, not changing either the  pattern or the nature of the contract. Similarly,  when clothes are given for washing to a laundery,  there is a transaction which essentially involves  work or service, and if the launderyman stitches a  button to a garment which has fallen off, there is  no sale of the button or the thread. A number of  such cases involving incidental uses of materials  can be cited, none of which can be said to involve  a sale as part of the main transaction."

       Supply of food to non-resident was held not to be a sale in Northren  India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1978) 4 SCC 36].  An  endeavour was made to get the said decision reviewed but this Court in M/s.  Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC  167] rejected the said contention.

       It is one thing to say that TDSAT shall not exercise its original  jurisdiction in respect of a matter covered by the 1986 Act but it is another  thing to say that the members of the Associations are not consumers at all.   Provisions of the 1986 Act have been referred to for excluding the  application under Clause (a) of Section 14 of TRAI Act.  While the  jurisdiction is sought to be taken away, a strict construction thereof is  essential.  What is excluded is a complaint of an individual consumer and  not a group of consumers.  Thus, indisputably, TDSAT would be entitled to  entertain a complaint by a group of consumers against a service provider.

       It is, therefore, idle to contend that the definition of ’consumer’ as  contained in Section 2(1)(d) of the 1986 Act would be attracted in a case of

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this nature. We are unable to accept the submission of Mr. Ashok Desai, that  as in terms of Section 2(1)(d) of the 1986 Act ’consumer’ does not include a  person who obtains goods or services for any commercial purpose, the hotels  would not come within the definition of ’consumer’.  The said submission of  Mr. Desai, in our opinion, is wholly misconceived.  Reliance has been  placed on Morgan Stanley Mutual Fund v. Kartick Das [(1994) 4 SCC 225]  wherein it was opined that the meaning of the word ’consumer’ was broadly  stated in the above definition so as to include anyone who consumes goods  or services at the end of the chain of production.  The said decision has no  application.

       ’Consumer’ has been defined in the notification dated 31.12.2004.  It  did not make any distinction between an ordinary cable consumer and a  commercial cable consumer.  TRAI itself said so in its consultation paper  stating:

"In the Recommendations on Broadcasting and  Distribution of TV channels the Authority had also  indicated that the ceiling shall be reviewed  periodically to make adjustment for inflation.  It  was also stated that the price regulation is only  intended to be temporary and as soon as there is  evidence that effective competition exists in a  particular area price regulation will be withdrawn.   The Tariff Order did not define the word "cable  subscribers" and no distinction was expressly  provided between ordinary cable consumer and a  commercial cable consumer."

       A ’consumer’ furthermore has been defined in the Register of  Interconnect Agreements (Broadcasting and Cable Services) Regulation,  2004 issued by TRAI on 31.12.2004.  Such regulations having been made in  terms of Section 36 of TRAI Act, the term ’consumer’ defined therein to  mean any person who is a subscriber of any broadcasting service in the  country would, in our opinion, would prevail over the definition of a  ’consumer’ under the 1986 Act.

         Our attention, however, was drawn to Explanatory Memorandum  appended to the Tariff Order of 1.10.2004.  Only a recommendation was  made therein that it was not possible to have uniformity of rates for  subscribers but it is not in dispute that commercial consumers have not been  taken out of the purview of TRAI Act.  It may be that in several other sectors  as, for example, electricity or water, different tariffs exist for domestic  consumers or commercial consumers but it is beyond any cavil that the tariff  of the said essential commodities are fixed under statutes.  So long, TRAI  does not itself make any distinction between consumers and consumers and  does not fix different tariffs, the question that a category of users being  commercial users/ subscribers being identified so as to exclude the  applicability of TRAI Act does not and cannot arise.  The Tariff Orders of  2004 did not define the words "cable subscribers" and, thus, no distinction  was expressly provided between ordinary cable consumer and commercial  cable consumer.

       It is one thing to say that TRAI recognises the need for making such a  distinction probably pursuant to or in furtherance of the observations made  by TDSAT but therefor a final decision is yet to be taken.  The notification  dated 7.03.2006 has been issued as an interim measure.  By reason of the  said notification, broadcasters have been injuncted from increasing the rates.   So long a final determination in the matter does not take place, not only the  members of Appellants \026 Associations but also a vast number of similar  commercial subscribers would remain protected.

       It is not disputed that the nature of supply of TV signals is not distinct  and different.  It is same both for domestic consumers and commercial

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consumers.  

       It is one thing to say that TV signals are being used for commercial  purpose but it is a question which TRAI has to address itself independently  and in exercise of its power under Section 11(2) of TRAI Act.  The same  having not been done till date, in our opinion, it cannot be contended that a  commercial consumer is not a consumer.   

       ’Subscriber’ has been defined in Section 2(i) of the 1995 Act to mean  a person who receives the signals of cable television network at a place  indicated by him to the cable operator, without further transmitting to any  other persons.  

       The members of Appellants \026 Associations stricto sensu do not  retransmit the signals to any other person.  It merely makes the services  available to its own guests, which in other words, would mean to itself.  If  the amenities provided for by the management as a subscriber under TRAI  Act is inseparable from the other amenities provided to a boarder of a hotel,  it remains a subscriber by reason of making the services available in each of  the rooms of the hotel.  It is not transmitting the signals of cable television  network to any other persons.  TRAI Act and various orders made  thereunder are required to be read conjointly with a view to give harmonious  and purposive construction thereto.

        An attempt has been made by Mr. Desai to contend that the 1986 Act  is a cognate legislation.  Section 2(2) of TRAI Act provides that words and  expression used and not defined in the said Act but defined in Indian  Telegraph Act, 1885 or the Indian Wireless Telegraphy Act, 1933 shall have  the meanings respectively assigned to them in those Acts.  Thus, meaning of  only such words which are not defined under TRAI Act but defined under  those Acts could be taken into consideration.  It is furthermore well known  that the definition of a term in one statute cannot be used as a guide for  construction of a same term in another statute particularly in a case where  statutes have been enacted for different purposes.   

       In Hari Khemu Gawali v. Deputy Commissioner of Police, Bombay  and another [AIR 1956 SC 559], a Constitution Bench of this Court stated:

"\005It has been repeatedly said by this Court that it  is not safe to pronounce on the provisions of one  Act with reference to decisions dealing with other  Acts which may not be in pari materia."

       In M/s. MSCO. Pvt. Ltd. v. Union of India and Others [(1985) 1 SCC  51], this Court held:

"4. The expression ’industry’ has many meanings.  It means ’skill’, ’ingenuity’, ’dexterity’, ’diligence’,  ’systematic work or labour’, ’habitual employment  in the productive arts’, ’manufacturing  establishment’ect. But while construing a word  which occurs in a statute or a statutory instrument  in the absence of any definition in that very  document it must be given the same meaning  which it receives in ordinary parlance or  understood in the sense in which people  conversant with the subject matter of the statute or  statutory instrument understand it. It is hazardous  to interpret a word in accordance with its definition  in another statute or statutory instrument and more  so when such statute or statutory instrument is not  dealing with any cognate subject..."  

       In Maheshwari Fish Seed Farm v. T.N. Electricity Board and Another  [(2004) 4 SCC 705], this Court in regard to different meanings of

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’agriculture’ as noticed in different decisions held:

"9\005A reading of the judgment shows a research  by looking into several authorities, meaning  assigned by dictionaries and finding out how the  term is understood in common parlance. The Court  held that the term ’agriculture’ has been defined in  various dictionaries both in the narrow sense and  in the wider sense. In the narrow sense agriculture  is the cultivation of the field. In the wider sense it  comprises of all activities in relation to the land  including horticulture, forestry, breeding and  rearing of livestock, dairying, butter and cheese- making, husbandry etc. Whether the narrower or  the wider sense of the term ’agriculture’ should be  adopted in a particular case depends not only upon  the provisions of the various statutes in which the  same occurs but also upon the facts and  circumstances of each case. The definition of the  term in one statute does not afford a guide to the  construction of the same term in another statute  and the sense in which the term has been  understood in the several statutes does not  necessarily throw any light on the manner in which  the term should be understood generally."

       In Tata Consultancy Services v. State of A.P. [(2005) 1 SCC 308], this  Court held: "40. Copyright Act and the Sales Tax Act are also  not statutes in pari materia and as such the  definition contained in the former should not be  applied in the latter. [See Jagatram Ahuja v.  Commr. of Gift-tax, Hyderabad]. 41. In absence of incorporation or reference, it is  trite that it is not permissible to interpret a word in  accordance with its definition in other statute and  more so when the same is not dealing with any  cognate subject\005"

       Reliance has been placed upon a decision of this Court in Deputy  Chief Controller of Imports and Exports, New Delhi v. K.T. Kosalram and  Others [(1970) 3 SCC 82] wherein the provisions of the Indian Tariff Act,  1934 were called in aid to interpret import licence granted under the Imports  and Exports Control Act, 1947 on the premise that both relates to the larger  import scheme of the Government of India.  In that case, the Central  Government made Imports Control Order under the Imports and Exports  Control Act.  Item No. 67(1) in Schedule I, Part V contained a very large  number of various components of a printing press corresponding to Item No.  72(2) of the Indian Tariff Act which consolidates the law relating to customs  duties.  This Court opined that although dictionary meanings are helpful in  understanding the general sense of the word but it cannot control a situation  where the scheme of the statutes or the instrument considered as a whole  clearly conveys a somewhat different shade of meaning.   In that fact  situation, it was opined:

"\005It is not always a safe way to construe a statute  or a contract by dividing it by a process of  etymological dissection and after separating words  from their context to give each word some  particular definition given by lexicographers and  then to reconstruct the instrument upon the basis of  those definitions. What particular meaning should  be attached to words and phrases in a given  instrument is usually to be gathered from the  context, the nature of the subject matter, the

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purpose or the intention of the author and the  effect of giving to them one or the other  permissible meaning on the object to be achieved.  Words are after all used merely as a vehicle to  convey the idea of the speaker or the writer and the  words have naturally, therefore, to be so construed  as to fit in with the idea which emerges on a  consideration of the entire context. Each word is  but a symbol which may stand for one or a number  of objects\005"

       In Shree Meenakshi Mills Ltd. v. Union of India [(1974) 1 SCC 468],  the Cotton Textiles Cess Act, 1948 and the Cotton Textiles Companies  (Management of Undertakings and Liquidation or Reconstruction) Act, 1967  were held to be cognate legislations.   

       TRAI Act and the 1986 Act are not in pari materia.  They have been  enacted for different purposes and in that view of the matter even Sirsilk  Ltd. v. Textiles Committee and Others [1989 Supp (1) SCC 168] would have  no application in the instant case.

       Strong reliance has been placed on some purported agreements  entered into by and between the broadcasters and the cable operators to  contend that cable operators were authorised only to supply signals to  private residential households or private residential multi-unit dwellings and  not to commercial users.  TDSAT has not gone into that aspect of the matter.   It is seriously disputed that such agreements exist.  In any event such a  question cannot be gone into by us as cable operators are not parties in these  appeals.   

       We, therefore, are of the opinion that it would not be correct to  contend that the commercial cable subscribers would be outside the purview  of regulatory jurisdiction of TRAI.  If such a contention is accepted, the  purport and object for which the TRAI Act was enacted would be defeated.   TDSAT, with great respect, therefore, was not correct in opining that the  regulators should also consider whether it is necessary or not to fix the tariff  for commercial purposes in order to bring greater degree of clarity and to  avoid any conflicts and disputes arising in this regard.

       While exercising its original jurisdiction, again with respect, TDSAT  should not have made such observations.  This Court in K. Kankarathnamma  and Others v. State of Andhra Pradesh [(1964) 6 SCR 294 at 298], held:

"\005wherever jurisdiction is given by a statute and  such jurisdiction is only give upon certain  specified terms contained therein, it is a universal  principle that those terms should also be complied  with, in order to create and raise the jurisdiction,  and if they are not complied with the jurisdiction  does not arise..."

       It is also well settled that when a power is required to be exercised in  a particular manner, the same has to be exercised in that manner or not at all.   TDSAT having not exercised its appellate jurisdiction, in our opinion,  neither could have issued any direction nor TRAI could abide thereby.  [See  Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New  Delhi & Ors., AIR 1978 SC 851, Commissioner of Police v. Gordhandas  Bhanji, AIR 1952 SC 16, Hindustan Petroleum Corpn. Ltd. v. Darius Shapur  Chenai, (2005) 7 SCC 627 and R.S. Garg v. State of U.P. and Others, 2006  (7) SCALE 405]

       We are, however, sure that TRAI while exercising its jurisdiction  under Sub-section (2) of Section 11 of TRAI Act shall proceed to exercise  its jurisdiction without in any way being influenced by the said observations.  

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It must apply its mind independently.   

       It may be true that TRAI in its Tariff Order dated 7.3.2006 sought to  define ordinary cable subscribers and cable subscribers separately but the  same is yet to be adopted finally. It is not conclusive.  It must while laying  down new tariff take into consideration all the pros and cons of the matter. It  must apply its mind afresh as regards not only the justifiability thereof but  also the workability thereof.   

       TRAI exercises a broad jurisdiction.  Its jurisdiction is not only to fix  tariff but also laying down terms and conditions for providing services.   Prima facie, it can fix norms and the mode and manner in which a consumer  would get the services.

       The role of a regulator may be varied.  A regulation may provide for  cost, supply of service on non-discriminatory basis, the mode and manner of  supply making provisions for fair competition providing for label playing  field, protection of consumers interest, prevention of monopoly.  The  services to be provided for through the cable operators are also recognised.   While making the regulations, several factors are, thus required to be taken  into account.  The interest of one of the players in the field would not be of  taken into consideration throwing the interest of others to the wind.

       We may notice that the Tariff Order of 2004 which came into force  from 15.01.2004 whereby the price prevalent as on 26.12.2003 was to be the  ceiling in respect of charges payable by : (a)     Cable subscribers to cable operator; (b)     Cable operators to Multi Service Operators/ Broadcasters          (including their authorized distribution agencies); and (c)     Multi Service Operators to Broadcasters (including their          authorized distribution agencies).

       Whereas members of Hotel & Restaurant Association would be  protected thereby, the Tariff Order dated 7.03.2006 protects all as in terms  thereof Sub-clause (f) of Clause 2 of the Telecommunication (Broadcasting  and Cable) Services (Second) Tariff Order, 2004 was substituted by the  following:

"(i) for all others except commercial cable  subscribers, the rates (excluding taxes) payable by  one party to the other by virtue of the written/oral  agreement prevalent on 26th December 2003. The  principle applicable in the written/oral agreement  prevalent on 26th December 2003, should be  applied for determining the scope of the term  "rates"  (ii) for commercial cable subscribers, the rates  (excluding taxes) payable by one party to the other  by virtue of the written/oral agreement prevalent  on 1st  March 2006. The principle applicable in the  written/oral agreement prevalent on1st March  2006, should be applied for determining the scope  of the term "rates""

       Thus, it covers both the situations.

       It is now also not in dispute, as would appear from the Explanatory  Memorandum issued by TRAI, that the interim protection has been extended  also to commercial consumers.

       A contention has been raised that the freeze/ ceiling order did not  apply to the new channels or in a case the free channels are converted into  pay channels.  However, TDSAT did not go into the said question.

       Having regard to the order proposed to be passed, we do not intend to

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also determine the said question for the first time.  We may notice that,  except a few, the members of Hotel Associations have entered into contract  directly with the broadcasters.  Mr. Venugopal agrees that all those owners  of the hotel who had set up Head End shall continue to pay the amount  which was payable as on 1.10.2004.  If there are arrears, the same must be  cleared within eight weeks from date.  So far as those who are taking signals  through cable operators, keeping in view the fact that there are certain  disputed questions of fact and furthermore in view of the fact that they have  not disclosed the name of the cable operators except 314 hotels and some  restaurants, they may furnish the complete list.   

       We, therefore, direct those members who are taking signals through  cable operators to disclose the details as directed by TDSAT within three  weeks from date.  Cable operators, if TDSAT so directs, may be impleaded  as parties and/ or some of them in representative capacities.  The matter in  relation to those who are taking supply through the cable operators is being  remitted to TDSAT.  It would be open to the parties to adduce additional  evidences.  Until an appropriate order is passed by TDSAT, by way of an  interim measure, the members of Appellants \026 Hotel & Restuarant  Association and those members of Hotel Association who are taking supply  through cable operators shall pay in terms of the Order dated 7.03.2006 but  the same shall be subject to the ultimate order that may be passed by  TDSAT.  All other informations, if any, as directed by TDSAT, shall be  furnished.   

       On 19th October, 2006, we have passed the following order:

"It appears that by our order dated 28.4.2006, a  Bench of this Court directed that status-quo, as it  existed on that date, shall be maintained.  It is  stated at the Bar that pursuant to and in furtherance  of the said order the TRAI has not been carrying  out the processes for framing the tariff in terms of  Section 11 of the Telecom Regulatory Authority of  India Act.         Before us Mr. Sanjay Kapur, learned  counsel appearing for TRAI submitted that TRAI  has already issued consultation papers and  processes for framing a tariff is likely to be over  within one month from date.         We in modification of our said order dated  28.4.2006 direct the TRAI to carry out the  processes for framing the tariff.  While doing so, it  must exercise its jurisdiction under Section 11 of  the Act independently and not relying on or on the  basis of any observation made by the TDSAT to  this effect.  It goes without saying that all the  procedures required for framing the said tariff shall  be complied with.         It has been brought to our notice that even in  the consultation paper some references have been  made to the recommendations made by the  TDSAT.  In view of our directions issued  hereinbefore a fresh consultation paper need not be  issued.  We, however, make it clear that in framing  the actual tariff the provisions of Section 11 of the  Act shall be complied with and all procedures laid  down in relation thereto shall be followed.         We also furthermore direct that by reason of  the order of grant of status-quo, we have not stayed  the criminal proceedings."           We reiterate the same.

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       In the event TRAI frames tariffs, the members of Appellants \026  Associations would be entitled to prefer appeals there against.  All  contentions in that behalf are left open.  The appeals are allowed with the  aforementioned observations and directions.  No costs.