Judgment:
This is an application for review of order dated 26th August, 2008 passed by this Tribunal. The review application is accompanied with an application for condonation of delay which has a prayer that delay in filing the review application be condoned. There is delay of 21 days in filing the review application. The learned Additional Solicitor General appearing for the Union of India has opposed this application for condonation of delay. As part of his submissions he has drawn my attention to the following averment contained in the application.
“The applicant/petitioner had to examine and analyse the order in its overall perspective and sought legal advice on various aspects including the subject matter of the present review petition as well as certain aspects which had not been considered in the judgment. The delay occurred is only because of the time spent in analyzing the legal implications of the judgment/order of the Hon’ble Tribunal.”
This is the only justification provided in the application for seeking condonation of delay in filing the review petition. It is submitted on behalf of the respondent that the averment is nothing but a generalization and does not contain any particulars as to how delay was caused and at which end. Further it has been brought to my notice that the affidavit filed in support of the condonation of delay application is itself defective because it is verified “the contents of the above affidavit affirm para 1 to 2 are true and correct to the best of my knowledge”. In my view this verification of an affidavit is not proper as an affidavit is required to be affirmed to the knowledge of the deponent and not to the best of his knowledge. Thus on both counts that is substance as well as verification, the application for condonation of delay is liable to be rejected. I order accordingly.
RA 5 of 2008 and MA 155 of 2008
In view of my order on the application for condonation of delay these applications are liable to be dismissed. However, since I have heard the learned counsel for parties on merits of these applications I proceed to decide the same.
Two points have been argued in support of these applications by the learned senior counsel for the petitioners. It is submitted that the finding about inclusion of revenue earned from sale of Set Top Boxes(STBs) for purpose of calculation of licence fee is not correct because the petitioner does not manufacture the set top boxes. It is also submitted that the petitioner does not insist on sale of set top box whenever there is a request for new connection to petitioner by any consumer. The consumer can purchase a set top box from anywhere. However, it is not denied that use of set top box is essential for de encryption of signals. Sale of set top boxes is not part of licensed activity and therefore income derived from it could not be included in AGR for purpose of calculating licence fee.
I have fully dealt with this argument in my judgment sought to be reviewed. I do not accept the argument now being raised that Set Top Box can be purchased from anywhere. Set Top Box has to be purchased from the petitioner as part of the connection when a consumer seeks it from the petitioner. Therefore, it is bundled activity and income therefrom is liable to be included in AGR for purposes of calculation of licence fees. The learned ASG appearing for the respondent has drawn my attention to a website of the petitioner according to which
“Digicard: the Tata Sky owned card through which the service is rendered when used with the Digicomp.
Digicomp: a satellite receiver authorized by us to use with our digital conditional access system, including a PVR.”
and
“10.7 Each Digicard is compatible with only one Digicomp, and cannot be used on any other Digicomp.”
This shows only the Digicard of Tata Sky is compatible with Tata Sky Digicomp. Therefore, factually the arguments are not correct and are rejected.
From the side of petitioner a projection is being given that petitioner does not directly sell the STBs. It sells them to its distributor who in turn sells them to the new connection seekers. A spate account if maintained. To my mind, this does not make any difference. The petitioner is a DTH Operator. Whether it gives connection through a distributor or directly, that will not make any difference so long as it is not disputed that without petitioner’s STB, signals cannot be received i.e. STB is an integral part of the service.
The other point argued before me in support of the review application was that the petitioner claims benefit of pass through charges i.e. payment made by it to the broadcaster for obtaining the content regarding which no finding has allegedly been given in the judgment. In this behalf it is only to be pointed out that I have gone through the main petition filed by the petitioner wherein there the case now being pleaded has not been set up. During the course of hearing I had put it to the learned counsel for the petitioner about pleadings on this aspect. He was unable to point out anything except that reliance was placed on a Telecom Regulatory Authority of India (TRAI) Report of 2004 which is filed as annexure to the main petition. TRAI recommendations are not binding on the Government. The point was not taken in the main petition. A review petition under Section 16 of the TRAI Act has to be decided on principles of Order 47 CPC. It is settled law that in a review petition the party seeking review cannot bring on record fresh material or make out a fresh case nor is review a rehearing. The parameters of review are quite strict. I do not find that a case for review of order dated 26.8.2009 is made out in the facts and circumstances of the present case.
The applications are dismissed.