Bennett Coleman and Co Ltd & Anr v. Broadcast Audience Research Council India

NAVIN CHAWLA, J SEPTEMBER 29, 2020/rv

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 15.09.2020 Date of decision: 29.09.2020 + W.P.(C) 6238/2020 & CM 22291/2020 BENNETT COLEMAN AND CO LTD & ANR. ..... Petitioners Through: Dr.Abhishek Manu Singhvi, Sr. Adv. and Mr.Maninder Singh, Sr. Adv. with Mr.Kunal Tandon, Mr.Kumar Shashank Shekhar, Mr.Prabhas Bajaj, Mr.Amit Bhandari & Mr.Amandeep Singh, Advs. versus BROADCAST AUDIENCE RESEARCH COUNCIL INDIA …Respondent Through: Mr.Neeraj Kishan Kaul, Sr. Adv. with Mr.Saikrishna Rajagopal, Ms.Sneha Jain, Mr.Ranjeet Singh Sidhu, Mr.Sudarshana MJ & Mr.Akash Lamba, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition has been filed by the petitioners praying for the following relief:- "a) Issue an appropriate writ, order or direction in the nature of mandamus or such other writ, order or direction, quashing the communication dated 03.09.2020 alongwith Press Release dated 03.09.2020 and Frequently Asked Questions Page 2 issued by the Respondent, BARC, annexed as Annexure P-1(Colly) with the present petition." 2. This petition has been filed by the petitioners with the averment that the jurisdiction to adjudicate on the disputes raised in the petition lies with the learned Telecom Disputes Settlement and Appellate Tribunal (hereinafter referred to as "TDSAT"), the functioning of which stands suspended due to detection of a COVID-19 positive case. 3. It is further asserted that the date of commencement of the functioning in the learned TDSAT is not known and in any case, is suspected not to recommence in the near future and as the petitioners pray for urgent interim relief, the present petition has been filed. 4. As far as the assertion of the petitioners of the learned TDSAT not being functional, the same is not denied by the respondent. 5. In view of the above, at the outset, it is clarified that the observations made in the present judgment are mere prima facie opinions of this Court which shall not bind the learned TDSAT in its adjudication of the petition that is or would be filed by the petitioners before it. The observations made in the present judgment are confined only to the interim relief claimed by the petitioners for the period till its petition/interim application is taken up for hearing by the learned TDSAT. 6. By the Impugned Communication dated 03.09.2020, the respondent, a not-for-profit Company incorporated under Section 25 of the Companies Act, 2013 registered as a television rating agency by the Page 3 Government of India, introduced algorithms into its data validation method purported to mitigate the impact of "Landing Page" on viewership data across all genres of television channels. The release date of such data was 03.09.2020 and is thereafter, published every Thursday. 7. The learned senior counsels for the petitioners, in challenge to the above communication, have submitted that the Telecom Regulatory Authority of India (TRAI) had earlier, by Directions issued under Section 13 read with sub-Clause (ii) of Clause (b) of sub-section (1) of Section 11 of the Telecom Regulatory Authority of India Act, 1997 (hereinafter referred to as the "Act") sought to restrain the placing of television channels on the Landing Page inter alia on the ground that the same leads to false viewership data and creates market distortions. This was followed by further Direction dated 25.04.2018 by which the Direction dated 08.11.2017 was withdrawn. The TRAI thereafter, issued Directions dated 03.12.2018, again restraining the television channels to be placed on the Landing Page. This was again stated to be premised on the alleged influence such placement has on the Television Rating Point (TRP). 8. The said Direction was challenged inter alia by the petitioners before the learned TDSAT by way of Broadcasting Appeal No. 2/2018. The said appeal was allowed by the learned TDSAT vide its order dated 29.05.2019. 9. TRAI challenged the said order before the Supreme Court by way of a Civil Appeal No. 6001-6003/2019