Dhamaal 24 Radio Network Ltd v. Broadcast Engineering and Consultants India Ltd & Anr

ORDER %

10.03.2015 For orders, see OMP No. 280/2012. V. KAMESWAR RAO, J MARCH 10, 2015/akb -61 o THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on March 03, 2015 Jud2inent delivered on March 10. 2015 O.M.P. 280/2012 RELIANCE BROADCAST NETWORIC LIMITED Petitioner Through; Mr.K. Datta, Advocate with Mr.Asliish Verma and Mr.Rahul Malhotra, Advocates Versus BROADCAST ENGINEERINGAND CONSULTANTS INDIALTD AND ANOTHER Respondent Through: + O.M.P. 273/2012 RADIO ONE LIMITED Through; Versus Mr.Rajeev Sharma, Adv. & Mr.R.Gogna,CGSC along with Mr.Vipul, Ms.L.Gangmei, Ms.Tanisha, Advs. for Ministry of Information& Broadcasting

(UOI) Petitioner Mr.Rajiv Nayar, Sr. Advocate with Mr.Kirat Singh Nagra and Mr.Kartik Yadav, Advocates BROADCASTENGINEERINGCONSULTANTSINDIA Respondent Through; Mr.RajeevSharma,Adv. with Ms.RadhaLaldimiR., 0^4P280/2012Aconnectedpetitions Page I of50 Adv. for R-1 Mr.R.Gogna,CGSC along with Mr.Vipul, Ms.L.Gangmei, Ms.Tanisha, Advs. for Ministry of Broadcasting (UOI) + O.M.P. 287/2012 MALAR PUBLICATIONS LTD Petitioner + Through: Mr.AbhishekMalhotra, Mr.DebashisMuldieijee, Adv. Versus BROADCASTENGINEERINGAND CONSULTANTS INDIA LIMITED & ANR Through: Respondent Mr.Rajeev Sharaia, Adv. & Mr.Vivek Goyal, CGSC with Mr.M.TapanSharraa,Adv. for U0I/R2 O.M.P. 295/2012 PURAN MULTIMEDIA LTD Through: Petitioner Versus Mr.K. Datta, Advocate with Mr.Ashish Verma and Mr.RahulMalhotra, Advocates BROADCASTENGINEERINGAND CONSULTANTS& Respondent Through: Mr.RajeevSharma,Adv. with Ms.RadhaLakshmiR., Adv. for respondentNo.l Mr.R.Gogna,CGSC along with Mi-.Vipul,, OMP 280/2012Aconnectedpelitiom Page 2 of50 Ms.L.Gangmei,Ms.Tanisha, Advs. for Ministryof Information& Broadcasting

(UOI) Tudsment resei^ed on March 05. 201 Judgment delivered on March 10 701'^ + O.M.P. 291/2012 ^ DHAMAAL24 RADIONETWORKLTD Petitioner Througli: Mr.AbhishekMalhoti'a,Adv. with Mr.Nitin Bhatia, Adv. Versus prasarbharti Through: Mr.RajeevShamia,Adv. + O.M.P. 294/2012 DHAMAAL24 RADIONETWORJCLTD. Petitioner Tlu'ougli: Mr.AbhislieliMalliotra,Adv. witii Mr.Nitin Bhatia, Adv. Versus Js P^ASA-R~B:H-AR-TI ^ . i? ^ ^ c A ^ r e /^J e e /AJ G, A Respondent • coa/suLT-a'^-ts AM£>A/M^e. Through: Mr.RajeevSharma,Adv HON'BLEMR. JUSTICEV.KAMESWARRAO 1-Tliis batch of petition,have been filed under Section 9of the Arbifation and Conciliation Act. 1996 (Act, in short), inter alia, OMP 280/2012&connecledpeliHons Page 3 of50 claiminga common interim measiiie in the nature of directionto the Broadcasting Engineering and Consultants India Ltd. (BECIL, in shortyPrasarBharti to issue No-ObjectionCertificateto them, or a directionfor givingpermission,to enablethemto apply for migrationto Phase III in terms of FM Radio Policydated July 25, 2011. Since the issue(s) which arise(s) for considerationin tiiis batch of petitions is-identical,theyare beingdisposedofby thiscommonorder. FACTS:

¶2All the petitionershereinoperateFM Radio Stationsin different citiesofthe countryunder FM Radio (PhaseII) policyof Ministi-yof Informationand Broadcasting(MIB, in short) dated July 13, 2005. BeforePhase II policywas framed, there was aPhaseIpolicy.Under the PhaseII pohcy,the case ofanew entrantwas also considered.The policy stipulatedaprocess of granting permission by issuance of a Lette.,-of Intent to enable the companyto obtain frequencyallocation, SACFA clearance, achieve financial closure, and appoint all key executives,enter into an agreementwith DD/AIR/BECILand deposit the requisite amount towards land/tower lease rent, Common TransmissionInfrastmetui..(CTI, in short) etc. and comply with the requisiteconditionsof eligibiiiiyfor signingtl.e "Grantof Permission OMP 280/2012&connecledpetitions Page 4 of50 u Agieement" (GOPA). The "grant of permission agreement" was executedbetweenthe MIB and the petitionersherein on differentdates. Thepohcyalsocontemplatedmandatoryfor all PliaseII operatorsto co-locatetransmissionfacilitiesin all the 91 citieson terms and conditions to be prescribedseparately. Out of 91 cities,in 84 cities,the facilities had to be co-locatedon existingAIR/DDtowers,whilein remaining7, tlie policy contemplatednew towers to be got constructedby the MIB through BECIL. The new towers were to be constructedat Chem^ai, Delhi,Kolkata,Mumbai,Bangalore,Hyderabadand Jaipur.

¶3Pendmgcreationofco-location,facilityby BECIL,the successfiil biddersin the7citieswerepermittedto operationalizetlieirchannelson mdividualbasisforaperiodoftwoyearsortilltheco-locationfacilityis commissioned,whicheveris later,at the end ofwhich,theywere to shift thei, operationsto new facilities.Permissionto run individualchamiel were to be granted to each successfulbidderonly after it had entered intoan agreementwith BECILand madefull paymenttowardsits share in the common infrastructure.The BECIL acted as asystemintegrator for providing a common transmission infrastructureto enable the petitionersherein to obtain SACFA clearanceand frequencyallocation etc. The petitioners herein entered into 'project management OMP 280/20/2c& connectedpetitions Page 5 of50 agreements'(PMA) witli the BECIL on differentdates, the details of whichsliailbe givenin thejudgmentlater.

¶4The PMA was primarilyto provideprojectmanagementservices, to build, install, commission and completion of the common transmissioninfrastructure.The PMA contemplatedpaymentof fee to BECIL for providing project management services. The common transmission infrastructure in terms of Annexure I included the following: Antemiasystem;RF Feedercable and accessories;combiners;Anteraia switchframe; powersupplysystemfor the total set up; buildingworks to houseCTI as alsothe buildingforLOI holder;individualtransmitters, rigid lines and accessories.Air conditioningarrangements,earthing system for CTI, fire fighting equipmentfor CTI, technicalfurnitureat CTI. j. Suffice to state, the common transmissioninfrastructuredid not includeflic towerto be constractedby BECILon behalfofMIB. Clause

17.1 stipulatedadispute resolutionmechanismthrough the process of arbitrationbyaSoleArbitratorto be nominatedby the Secretaiy,MIB.

¶6None ofthe petitionershave signedagreementsfor tower rental. On .luly 25, 2011, the MIB had issued an order in the natureofpolicy OMP 280/2012&connectedpetit un^ Page 6 of50 V guidelinesin pursuanceto adecisionofUnionCabinetwithapurposeto expand the FM Radio BroadcastingSei-vicestliroughprivate agencies calledthe FM RadioPhaseIII. The guidelinesstipulatesmigrationof the existing permission holders i.e. the petitioners herein, to Phase 111, subjectto the provisionscontainedtherein,which includespaymentof all outstanding dues pertaining to the government, Prasar Bharti and BECIL in relationto existingFM radio permission/operations;signing of fresh 'grant of permissionagreement' (GOPA). hi any case, if the existingpermissionholder does not executethe fresh agreementwithin the given time, it shall be construed to mean that he does not want to migrate to the FM Phase III regime and therefore shall continue to be governed by Phase II policy provisions.The counsels for the parties state that the last date for getting NOC is March 9, 2015 and the deadline to sign the GOPA has been extended till March 23, 2015. 1 may only pointhere that this Court in the order dated .hily 3, 2014, has -recordedthat the deadhne to migratehas been extendedtill March 31, 2015. PLEADINGS OF THE PAMTTKS: QMP 280/2012

¶7It is the case ofthe petitionerthat, it operatesFM radio stationsat OMP 280/2012tS-connectedpelitioiis 7-of50 v 45 cities inthe country. For the said purpose,it had paid to the MIB a fee of Rs. 160 Crores as a one time entiy fee and an amountof Rs. 30 Crores towardslicencefee till March 2011. It had on March 23, 2006 enteredinto a PMA for commontransmissioninfrastructurefor the FM radio Phase II at Delhi and similaragreementswere entered for all 45 cities, in which, it operates. It is the case of the petitionerthat the respondentNo. 1is falselyclaimingfrom it monitoringcharges,which were payable as per clause 13.1 of the GOPA. According to the petitioner,the respondentNo. 1 has failed to provide monitoringas contemplatedin GOPA. It has chargedarbitraryinterest@19.5 percent on the outstandingamount. The petitionerhas also raised an issue of failure on the part of the respondentNo. 1 to set up a CTI structureat Kolkata and the advance paid to the respondent No. 1, was Rs. 1,08,00,000/-.The petitioneralso raised an issue with regard to CTI towerat Chennai,statingthat, the same is inadequateas its heightis 130 ' meters insteadof 175 meters, prescribedin clause 12.2 of GOPA. In other words, it is the petitioner's case that there exist genuine commercialdisputesbetweenthe parties. It is noted, that the petitionei has invoked clause 17.1 of the PMA, seeking settlement of disputes through arbitration. OMP 280/20!2Aconnectedpetitions P<^8e8of50

¶8The respondentNo. 1has filed its reply,ft may not be necessary for this Courtto go into the detailsofthe avennentsmade in the reply by the said respondentsin view ofan additionalaffidavitfiled by the respondentNo. 1on February23, 2015. In para4and5oftlieaddifional affidavit,the respondentNo. 1has statedas under:

¶4I state that there have been other dealing between the parties in terms whereof tower rental, ' monitoringchargesin respectofmonitoringoftechnical compliancesand contentand Studio TransmissionLinks

(STL) chargesarepayableby thepetitionerto respondent No. 1. The said dealings are not under the Project ManagementAgreements.

¶5I state that iipto 31" December, 2014 an cmountofRs. 1,30,44,538/-waspayableby thepetitioner towards tower rentalfor the Tower at Chennaifor the peru.d01.04.2008to 31.03.2015along with intereston delaytdpayments of Tower Rentals amounting to Rs. 1,32,81.909/-. In addition, an amount ofRs.2,62,901/- due fiom the petitioner towards interest on STL outsiandings.The total amount due from the petitioner upto .'1.12.2014was Rs. 2,65,89,348/- The petitioner, in response to the affidavit has denied the amount claimedby the respondentNo. I. OMP 280/2012&'-onnertedpelition.s Page 9 of50 >

¶9The case of the petitioner in this petition is that it is a private FM radio broadcaster in India and operates under the brand name "Radio One" operating in 7 Indian cities namely Mumbai, Delhi, Kolkata, Chennai, Bangalore, Pime and Ahmedabad. Under the Phase II scheme, it entered into a separate PMA for the 7 cities on March 20, 2006 and April 15, 2006 with the respondent for setting up of CTI. It is also averred that the petitioner was also required to enter into agreements for use of Tower Aperture on payment of rent as per the said policy. Pursuant to the PMA, the petitioner has paid approximately Rs. 7.3 Crores to the respondent for setting up of Common Transmission Infrastructure(CTI). It is the petitioner's case that the respondent delayed the setting up of Common Transmission Infrastructure, and in the case of Kolkata, had not even built the same, thus, breachingthe time frame specificallyprovided under the project agreements. Such delay caused grave prejudiceand loss to the petitioner. The petitioner's case is that it has been taking up the issue of delay in handingover the site by the respondentand thus, insofar as Kolkata is concerned, an amount of Rs. 1,08,00,000/-need to be reliinded back, which has not been done till date. Insofaras the refusalto enter into rentalagreements OMP 280/2012 connectedpelilion.s p^igg /qgj-jQ for the use of tower apertureat the citiesof Chennaiand Delhi, it is the case of the petitionerthat tiiey had not executedsolelyon accountof the respondent having illegally and wrongfully levied rentals on the CTI sites, which are not contractuallypayable to the respondent.Sufficeto state, the petitioner has been disputing the invoices raised by the respondent. It is their case, that even the consortium of broadcasters including the petitioner made several representations in respect of claims made by the respondent, which have not been addressed to. The petitionerstatesthat in view of the new policy, enunciatedby the MIB, the migrationfrom Phase II to Phase III is possibleif a No-Objection certificateis grantedby the PrasarBhaiti/BECIL,whichpresupposesthe paymentof all dues by the petitioner. In other words, the respondentis insistingupon the dues by the petitionerotherwisethe petitionerwould not be eligible for seeking migration to Phase III, and as such, coinpelleflit to file the presentpetition,seekingan order, directingthe respondent-to issuethe petitioneraNo due certificate,withoutprejudice to its rights and contentions,pending the outcome of the arbitration proceedings. I note, that, the petitionerhas filed an applicationunder Section11(6) of die Act i.e. Arb. P. 88/2015,whichstandsadjourned.

¶10The respondent-BECILhas filed its replyto thepetition. OMP 280/2012&connectedpelUious Page 11 of50 n

¶11On February 23, 2015, the respondentfiled an affidavitwherein,it has taken the following stand: "4. I state that there have been other dealings between the parties in terms whereof tower rental for the tower erected at Delhi and Chennai and monitoring charges in respect of monitoring of technical compliances and content are payable by thepetitioner to respondent No. 1. The said dealingsare not under the Project Management Agreements.

¶5I state that upto ST' December,2014 an amountof Rs.2,45,98,008/-was payable by the petitioner towards tower rentalfor the Towers at Delhiand Chennaifor the period 01.04.2008 to 31.03.2015 along with interest thereon amounting to Rs. 1,25, 84,741/-. In addition, an amount of Rs. 4,35,882/- was due from the petitioner towards monitoring chargesfor 7 cities. The total amount due from the petitioner upto

31.12.2014 was Rs. 3,76,18,631/-"

¶12Aperusai ofthe affidavitnow filed by the respondentwould show as on December31, 2014, the total amountdue is Rs.2,45,98,008/-against tower rentals for the towers at Delhi and Chennai for the period April .1, 2008 to March 31, 2015 and interestthereon ofRs.1,25,84,741/-and an amountofRs. 4,35,882/-towardsmonitoringchargesfor 7 cities,the total OMP280/2012&coimecU'dpelilioits j2 IV of which, comes to Rs.3,76,18,631/-. No reply to the additional affidavit has been filed. 287/2012?

¶13It is the case of the petitioner in the petition that it had participated in the auction of licences in respect of FM broadcasting stations by the respondent No. 2, Ministiy of Broadcasting (MIB) in Phase II of the licensing policy and has been granted Letter of Intent and subsequently, executed GOPA dated September 13, 2006, inter alia to set up and operate . 7 Radio stations in Tamil Nadu and Puducherry. In terms of the FM Radio policy, Phase II, the petitioner was required to co-locate transmission V-facilities with the existing infrastructure of Prasar Bharti and the common facilities had to be integrated by the respondent. In these circumstances, the petitioner entered into a PMA dated April 16, 2006 for CTI at Avadi, .. C.i'cnnai with the respondent No. 1. During oral, discussions with the officials of the BECIL, it raised concern with regard to the strength of signals that would originate at Avadi since it is located at least 20 kilometersfrom Chennai. Accordingto the petitioner,it had paid to the MIB (GOI) an amount of Rs. 24.3 Crores as one time entry fee for the operationof the FM broadcastingstations. It has also incurred capital expenditureof approximatelyRs.60 Crores besides having paid a sum of Rs. 5.18 Croresto the respondentNo. 1. It is also the case ofthe petitioner OMP 280/2012 connectedpditions Page 13 of50 being a successful bidder, the petitioner was also required to enter into an agreementpaying rent for the use of the tower as per the said policy. It has also made an advance payment of Rs.1,08,00,000/- as 100% advance towards the estimated share of capital cost on cost sharing basis towards the building, installation, commissioningand completion of CTI to the respondent.Besidesthat, the petitionerwas requiredto pay land and tower rentals. According to the petitioner, as per the FM Phase II policy at places where a suitable tower for Prasar Bharti was not available, the broadcasters were permitted to operationalisetheir transmissionfacilitiesout of interim set up till permanent set up was completed. The petitioner, for the city of Chennai created an interim set up at Doordarshan Centre, Chennai, and started operations of its Radio station under the name Hello FM on October 02, 2006 and the petitioner continues to use the said facility till date in view of the problems with the CTI set up/created by the respondent No. 1 at Avadi. The petitioner's case insofar as the facility at Avadi is concerned; the signals are poor, noisy with very low clarity. According to the petitioner, it is in'receipt of letter dated March 31, 2009, wherein, the respondent No. 1 has alleged that the petitioner, while operating from the interim set up at Chennai is in violation of GOPA as well as the PMA. The petitioner's stand is that it responded vide letter dated April 13, 2009, providing a detailed account of the disadvantages for phase II, due to OMP 280/2012 & connected pelilions • Page 14 of50 / s technologicaldeficienciesin servicesas well as signal interferenceat CTI complexat Avadi. The petitioneralso contestedthe demandmade by the respondentNo. 1vide its letterdated October 12, 2009 of an amount of Rs.31,37,780/-along with securitydepositof Rs. 13,93,776/-,by stating that, the demandis unjustifiedas the petitionerhad not commenceduse of the same mview of severaldeficiencieshighlightedby it. The petitioner has also statedthat tlie grievanceofthe petitionerhas not been addressed. The petitioneralsoreferredto the issuanceofpolicyguidelinesin the year 2011 by MIB for migrationto FIM Radio PhaseIII. The petitionerhas also statedthatthe respondenthas agreedto adjustthe monitoringchargesIrom the balance advanced capital with them and fiirther agreed to provide, intereston the balancecapital,advanceavailablewith them, and with the said understanding,and in acknowledgement/admissionof the same, the lespondent has even provided the petitioner witli TDS certificates, however,the respondentis yet to mal<earefund ofRs.3,226,875/-and in ^'lew of the fact that the respondent No. 1 has miserably failed and neglected to comply with its obligations under the agreement, it is constrainedto invokethe arbitrationclauseto referthe disputesbeforethe Sole Arbitrator. It has also referredto the writ petitionfiled by it being WP(C) No. 1257 of 2012 being Radio One Ltd. Vs. Union of India and Am., wherein,the Court has observedthat the appropriateremedyin view OMP 280/2012£• connectedpelilions Page 15of50 N.- of the arbitration clause between the parties, is initiation of arbitration and seeking interim directions therein.

¶14As noted in the other petitions, the respondent No. 1 had also filed its reply so also the respondent No. 2. That apart, the respondent No. 1 has filed an additional affidavit on February 23, 2013, wherein, the respondent No. 1 has taken the following stand: "4. I state that there have been other dealings between the parties in terms whereof tower rentals for the tower erected at Chennai and. monitoring charges in respect of monitoring of technical compliances and content are payable by the petitioner to respondent No.

¶1The said dealings are not under the Project Management Agreements.

¶5I state that upto ST' December, 2014, an amount of Rs.1,30,44,538/- was payable by the petitioner towards tower rental for the Tower at Chennai for the period 01.04.2008 to 31.03.2005 along MHth interest thereon amounting to Rs.63,54,980/-. In addition, an amount ofRs.38,91,906/- was duefrom, the petitioner towards monitoring charges for the 7 cities. The total amount due from the petitioner upto

31.12.2014 was Rs.2,32,91,424".

¶15Sufficeto state, it is the case of the respondentNo. 1 that the total amount due from the petitioner as on December 31, 2014 was OMP 2S0/2012&connectedpetitions Page I(j of50 Rs.2,32,91,424/-towardstower rental for the tower at Chennaialong with interestthereon and monitoringcharges for the 7 cities under GOPA. No replyto the additionalaffidavithas been filed.

¶16The case of the petitioner in this petition is that pursuant to an auction of the licenses in respect of private FM broadcastingstations by the MIB in Phase 11 of the licensingpolicy,Letters of Intent were granted to the petitionerto set up and operateradio stationsin CategoiyB citiesof Agra and Varanasi,CategoiyC citiesof Bareily,Jalandhar,Goraklipurand Ranchi, and Categoiy D cities of Hisar and Karnal. It had executed GOPA on November 23, 2006. It had paid to the Govt. of India an amount of Rs.

7.88 Crores as one time entry fee and an amount of Rs. 25,10,505/- towards fee for the first year in respect of the aforesaid 8 stations. It had also incurred capital expenditure for an approximately sum of Rs.24 Crores besides having paid a sum of Rs.5 Crores to the respondent No. 1 and a sum of Rs. 1.20 Crores to Prasar Bharti. In terms of the Phase II policy, successful bidder was required to co-locate the transmission facilities with the existing infrastructure of Prasar Bharti and the common facilities had to be integrated by the respondent No. 1. In entered into agreements in the year 2006 with the Prasur Bharti for its existing infrastructure on payment of licence fee for each of its 8 radio stations. It had also entered into a OMP280/20!2 & connectedpetitions Page 17 of50 ProjectManagementAgreementfor CTI on April 22, 2006 with respectto FM radio stationat Karnal. Similaragreementswere executedin all the 8 cities. The petitioner,in considerationof the respondentNo. I, building, installing,commissioningand completingthe CTI agreedto pay to BECIL its shaie of actual cost as also fee for providing project management services equivalentto 10% of its share of actual net cost. An advance payment of Rs. 5,02,00,000/- was paid to the respondent No. 2 on

22.04.2006for all 8 stations. Further, as per GOPA, the petitionerwas lequired to pay its share of monitoring charges arrived at by equally apportioningRs. 25,000/-per month amongst all permissionholders for 'V the case of the petitioner,that, the BECIL vide letter dated March 19, 2009 demandedthe outstandingmonitoringchargesfor the year 2007-08 and 2008-09 from the petitioner. It is the case of the petitioner, puisuantto certam discussions,it was agreedthat the monitoringcharges be adjusted from the balance capital advance already with BECIL on accountofcommoninfrastructureset up. It is the caseofthe petitionerthat approximately,Rs.60 laklisare availablewith the BECIL and calledupon . up the monitoringchargesand for final reconciliation duly auditedat theirend so that the payments,ifany, may be made by the petitioner. Surprisingly,it received a show-causenotice dated May 5, 2011 from the MIB for nonpaymentofmonitoringchargesand statingthat OMP 280/2012&cowiectedpetitions Page 18 of50 the petitionerwas in violationof the GOPA. The petitionerbroughtto the notice of the MIB the understandingarrived at betweenthe parties. It is also its case that inspiteof such unreasonableand arbitraryconductof the respondent,it had sent a cheque of Rs. 7,86,535/-to the BECIL, being outstandingamount as per the petitioner'scalculations. The petitioner refen-ed to the policy enunciatedon July 25, 2011 for expansionof FM radio broadcasting services to private agencies Phase III, wherein, migrationwas permissiblefrom Phase II to Phase III, subjectto payment of all dues and securing an NOC from the concerned authorities. The petitioneralso referredto a letterdated September8, 2011 issuedby MIB to the petitioner, asking it to clear the dues of the respondent before migrationcouldtake place. Accordingto it, as per the respondent,vide its letter dated October 7, 2011, it had sent a final statement of accounts with regardto 8 Radio stations,whereby,it raised a.demandof Rs. 84,07,047/-. The respondent demanded Rs.58,24,172/-towards monitoring charges, which accordingto the petitioner,is not payable. The petitioner'scase is that the statementalso includedan amount of Rs.5,77,628/-paid as TDS by BECIL.

¶17Suffice to state, the petitioner contested the statement of accounts sent to it. The petitioner referred to a writ petition being WP (C) 8782/2011 wherein, it had prayed for a directionto permit it to migrate OMP 280/2012&connectedpetitions p^gg jg withoutnecessityofobtainingacertificatefrom the respondent. The Court gave direction for involving the arbitration. The writ petition was withdrawnby the petitionerwith libertyto initiatearbitrationproceedings. It is necessaryto state here that the petitionerhas invokedclause 17.1 of • the ProjectManagementAgreements.

¶18The respondentNos. 1and 2have filedtheirrepliesto the petition.I wouldnot dilatemuch on the repliesfiled by the respondentNos. 1and 2 in view of the additional affidavit filed by the respondent No. 1 on Februaiy23, 2015,wherein,the followingstandhas beentaken: "4. I state that there have been other dealings between the parties in terms whereofmonitoringcharges in respect of monitoring of technical compliances and contentarepayableby the petitionerto respondentNo. 1. The said dealingsare not under the ProjectManagement Agreements.

¶5I statethat upto 3f December,2014 an amount ofRs.49,87,204/-was payable by the petitionertowards monitoringchargesin respectofthe 8citiesfor theperiod startingfrom 2007 to 31.03.2011 and 01.04.2012 to

31.03.2013. In addition,an amountofRs.25,82,875/-was due from the petitionertowards CTI outstandingsunder the ProjectManagementAgreements. The total amount due from the petitioner upto

31.12.2014 was Rs.75,70,079". .. Page 20 of50 OMP 280/2012 & connected petitions In response to the aforesaidaffidavit,the petitionerhas denied, that the amount of Rs.75,70,079/- is due and payable.

¶19During the hearing, Mr. Rajeev Sharma, learned counsel for the BECIL, the respondentNo. 1, submitteda due payment summary ofthe petitioner,wherein,it is reflectedthat, the petitionerhas to pay an amount ofRs. 54,87,586/-in total,the breakup ofwhich is Rs. 44,35,360/-,against monitoringchargesand Rs.10,52,226/-againstCTI charges. OMP 291/2012;

¶20The petitionerhas filed the presentpetitionwith a standthat it had participated in the auction of licences in respect of private FM broadcastingstations by the MIB in Phase II of the licensingpolicy and grantedLettersofIntentto set up and operate10 radio stationsin the cities of Shimla, Alimednagar,Dhule, Jabalpur,Hisar, Jalgaon,Kamal, Patiala, Mujjafarpurand Ranchi. In termsofthe PhaseII policy,the petitionerwas-requiredto co-locatetransmissionfacilitieswith the existinginfrastructure ofthe respondentPrasarBharti and commonfacilitieshad to be integrated by the BroadcastingEngineeringand ConsultantsIndia Ltd. (BECIL).It had enteredinto 10 agreementsfor availingtherespondent'sinfrastructural facilitiesi.e. toweraperture,open space,land, coveredspace,building and other facilities. It had also entered into PMA for 10 cities for CTI with BECIL. In terms of the agreement, the petitioner was required to pay to OMP 280/2012&connectedpetitions Page 2! of50 >- the respondent the annual Ucence fee in advance for use of the respondent's infrastructure. Apart from this, the petitioner was to pay to the respondent in the first year an amount equal to one year's licence fee by way of security deposit which was refundable to the petitioner on termination of the agreement(s). Furthermore,as per the agreement(s),the petitioner was to pay to the respondent 10% after eveiy two years for the open/coveredspace and the common facilities;2.5% after eveiy year for the tower. According to the petitioner, it had paid an amount of Rs.4,76,72,382/-towards licence fee in respect'of all the 10 radio stations till date. Furthermore,an amount of Rs. 68,94,331/-as securitydeposit was paid to the respondent at the time of execution of the licence agreements.The petitioneralso referredto the new policy foiTnulatedby the MIB on July, 2011, which stipulatesmigrationto Phase III subjectto clearing the dues and obtaining NOC from the concerned authorities. It is the case ofthe petitionerthat a meetingwas held with the Joint Secretary, Broadcastingof MIB on the issue of higher interestbeing charged by the respondentfor use ofits infrastructure.It was decidedthatthe issueof high rentalswill be discussedwith the respondentin a separatemeeting.Despite such an assurance,no meetinghad been calledfor by the respondent. It is the petitioner'scasethat the respondenthas failedmiserablyand neglected to complywith its obligationunderthe agreement(s)and is ftirthermaking OMP 280/2012&connectedpetitions Page22 of50 unreasonable demand from the petitioner and had no other alternative, but, to invoke clause 12 of the agreement(s), invoking arbitration for reference of the disputes so arisen between the parties before the Sole Arbitrator.

¶21The respondent Prasar Bharti filed its reply wherein, it has taken a plea that the petitioner has not invoked any arbitration clause even though the petition was filed as far back as on March 26, 2012.

¶22It is the case of the respondent that the petitioner has defaulted in making the payments and in such circumstances, it is not entitled to any interim measure or protection. It would state that the agreements for the 10 locations were executed as far back as on Marcli/April, 2006. The y agreements were arrived at voluntarilyand the petitioner never objectedto the licence fees specifiedtherein. The respondenthas also stated that the petitioner had paid licence fee without demur upto 2010-11. The •i respondent would submit that the petitioner has no prima facie case nor any balance of convenience in its favour. Admittedly, the petitioner, utilizingthe land of the respondent,despiteusing the land, the petitioneris refusingto pay the reivt which is notjustified.

¶23On March 03, 2015, when the matter was heard by this Court, the learnedcounselfor the petitionerhas statedthat the petitionerhas paid all the dues to Prasar Bharti. According,to him, the Prasar Bharti in advance had raised an invoice for the year 2015-16 which has to be paid to the OMP 280/2012&connectedpetilions Page 23 of50 petitionerand tlie same should not come in the way of for grant of NOC. Despiteopportunity,no affidavitwas filed and at the requestof the counsel for the petitioner,the matter was adjournedto March 5, 2015. On March 5, 2015, the learned counsel for the petitioner has clarified that invoice raised by the Prasar Bharti was for the year 2014-15 for the usage of infrastructure like tower, open space and common facilities. He would concede to the fact, the petitioner has not invoked the arbitration clause.

¶24Mi-.Rajeev Sharma, learned counsel for the respondent would state that an amount of Rs.1,02,82,583/- is due from the petitioner as on October 2014 with interest. He would state that till such time, the amount is paid by the petitioner, NOC cannot be granted. The learned counsel for the petitioner would submit that the petitioner would pay 50% of the amount to the respondent. OMP 294/2012;

¶25In this petition, the petitioner has inter alia sought an order of injunction restrainuig the respondent No. 1 fronpi raising a demand of Rs. 81,11,040/- apart from seeking an order of issuance of No due certificate so as,?to enable the petitioner to sign GOPA for phase III. It is the case of the petitioner that pursuant tc; llie participation in the auction of licences, an LOI was issued by Ministry of Information and Broadcasting to operate Phase II FM broadcasting stations in 10 cities of Shimla, Ahmednagar, OMP280/2012& connectedpelUions Page 24 of50 V-Duley, Jabalpur, Hisar, Jalgaon, Karnal, Patiala, Muzafaipur and Ranchi. It had entered uito PMA with the respondent No. 1 with regard to the 10 cities. It had paid the respondent No. 1 an amount of Rs.6,03,00,000/- in respect of all 10 radio stations. It had made a security deposit of Rs. 68,94,331/- to the respondent No. 2 in respect of each radio stations in terms of GOPA and Rs.4,76,72,382/- towards licence fee for all 10 stations. It is the case of the petitioner that there was an issue of breach of contractualobligationby the respondentNo. 1 in respect of petitioner's radio stationat Shimlaas the CTI facihtywhich was to be handed over on

20.04.2007could be handed over only on 08.10.2009. It is its case that it had incurred huge costs on account of the delay. It had also denied its liabilitytopay escalatedcosts as well as for delay in constructionofCTI in shimla. It had asked the respondent No. 1 to refund an amount of Rs.40,25,000/-. However, the respondentNo. 1 has not refunded it till date. Even a requestforNo-ObjectionCertificatehas not been accededto.

¶26The respondentNo. 1 demanded from the petitionera payment of Rs.35,51,536/- towards CTI and Rs.45,59,504/- towards monitoring chaiges and intereston account of late payment ofmonitoringcharges. The respondent No. 1 had also demanded an amount of Rs.14,57,671 towards electricity consumption for the month of November 2011 to Januai7 2012 for the 10 radio stations of the petitioner.The petitioner OMP 280/2012&cnnnecledpetitions 2J of50 would refer to the policy regarding Phase III issued by MIB and would refer to the clauses with regard to the issuance of NOC, subject to clearance of all dues by the radio operators.The petitioner also referred to the understandingarrivedat betweenthe petitionerand the respondentNo. 1, adjusting the monitoring charges from the balance advance capital available with the respondentNo. 1. The petitioner would submit that the refusalto give No-ObjectionCertificateis illegal.

¶27Therespondenthas filed its reply,takingvariousobjections.

¶28During hearing, Mr.Rajeev Sharma, has said that the total amount due from the petitioneris Rs. 77,86,632/-againstmonitoringchargesunder • clause 13.2 ofGOPA, whichpaymenthas to be made to BECIL. Similarly, he would state that a furtheramount of Rs.35,51,536as on December31, 2014 is due for the Common TransmissionInfrastmtureprovidedby the BECIL. He would state, a total sum of Rs.1,13,38,168 is due.

¶29Learned counsel for the petitioner would submit, an amount of Rs. 77 lakhs would be secured by way of a bank guarantee.He would dispute the payment of Rs. 35,51,536/-as there was a delay on the part of the BECIL to construct the CTI at Shimla. He would also state, the said amount would also be secured by way of a bank guarantee.It is his case thatthe petitioneris hardpressedfor money in view ofvariousinvestments made by it. OMP 2S0/2012c?: connectedpelitions Page 26 of50 u SUBMISSIONS;

¶30Mr.Sandeep Sethi, learned counsel appearing for the petitionerin OMP No.280/2012would submitthat the petitioneroperates,FM stations in 45 cities in the countryand in that regardpaid to the MIB fees ofRs.i60 crores as one time entiy fee and an amountof Rs.33 crores to BECIL and that apart making huge investments.The petitioneris not a fly by night opeiatoi,who would not honour, any award even ifcomes againstit. He has drawn my attentionto the e-mail dated February 4, 2015, received from BECIL along with an attachment,astatementshowingoutstanding payment of Rs.28,33,175/-,which has been paid by it. He would state, unfortunately,in the affidavitfiled by the RespondentNo.l, it had for the first time taken a plea that, the Tower rental, monitoring charges and Studio TransmissionLinl<s charges are payableby the petitionersare not under the PMA. Such an objectionhas been taken after 3years, of the filingofthe petition.He refers to letterdated November21, 2011, written-by the petitionerto BECIL to contend, that the, petitionerhas genuine issues for which immediate attention of BECIL was sought like leconcihationof advances,interest,monitoringcharges,CTI Chennai etc. With regard to Chennai,he would state the Tower in the city of Chennai was erected at Avadi, a small town in North West of Chennai, is inadequate teclmicallyas the height of the Tower constmcted is 130 OMP 280/2012tt connectedpetitiojis Page 27 of50 6) meters, instead of 175, and thus, it is legitimate and prudent for the Respondent No.l to refund the entire advance amount paid to BECIL under the agreement. It was his endeavour, to argue that, the Respondent No.l does not dispute the genuine issues raised by the petitioner and the Court which considers an application under Section 9 of the Act, would have a prima facie view to decide whethera directionto the petitionerto pay is necessaiy. The amountnow beingclaimedbyBECILis with regard to tower rentalfor the Towerin Chennai, and intereston delayedpayment of tower rentals for the cities of Delhi , Chennai and Hyderabad, in addition to interest on STL outstanding,camiot be said to be dues unless adjudicated. He would refer to the agreementexecutedwith Prasar Bharti on June 20, 2006 to contend, that it was for usage of infrastructure of Prasar Bharti to be collected by BECIL on behalf of Prasar Bharti with an Arbitrationclause. He wouldalso referto PMA betweenthe petitionerand BECIL and its various provisions. Accordingto him, there is no dispute with regard to Monitoring charges under GOPA. In the end, it is his submission that the petitionercould not be called upon to discharge,a claimwhere there is no dispute.

¶31On the other hand, Mr.Rajeev Sharma, learned counsel for the RespondentNo.1would statethat the FM II Policywas framedin the year 2005, tinder which, out of 91 cities, in 84 cities, the operatorscould co-OMP280/2012&connectedpetitions Poge 28 of50 locate witl, the infrastructureof Prasar Bharti and for 7cities,referredto above, new Towers were erected by the BECIL on behalfof IVUB. The BECIL was only acoilecfingagency. Till such time the towers did not come up m these 7 cities, the operators were at hbeity to have an an-angementeitlierindependentlyor at AIR/DD (PB) station. According to him, the agreementreferredto by Mr.Sethiwith PrasarBhaiti was one such arrangementwhichthe petitionerliad for Delhi. He would statethat, the Tower rental is payable and this aspect has been conceded by the petitionerin its letterdated December29, 2011, wherein in Para 7(a) the petitionerhad stated "itis submittedthatoutofthe totalamountsspecified towardsrentalsonlyRs.l,00,42,640/-is due andpayable". Accordingto l"m, in fact, BECILhas constructedthe Towerat Chemiai,in terms ofthe policy, the petitioneris bound to pay the rentals. Unfortunately,despite constructionthey have not co-located. He would also state that Mi-.Sethi has not answciodtiie objectiontalcen by the RespondentNo.I. withregard to the arbiirabili.'yof the issues regardingTower Rentals,and intereston TowerRentals for the citiesofDelhi, Hyderabadand Chemiai,as there is no Arbiti-ationagreement between the parties. According to him. the petitionerhas invoked the arbitrationclause under PMA. The petition under Section9is itselfnot maintainable. He has taken me tliroughthe provisionsofthe PMA, to highlight,the scopeofthe agreementto submit OMP280/2012c5 connectedpetitions Page 29 of50 constructionoftower and payment of tower rent does not fiiid place in PMA. He would state that towers does not fall under Common TransmissionInfrastructure.The petitionerswere to executean agreement with regard to tower rental.Unfortunately,they have not come forward to execute the same. He would refer to page 34 of the reply of respondent No.l, which is astatementshowingtowerrentalstatus.Accordingto him, vide letterdated April 08, 2009, the petitionerwas calledupon to pay the towerrentalcharges.Unfortunately,the same has not beenpaid. The claim ofrent is not arecentdevelopment.NOC can be given only ifthe dues are paid,whichare to the tune ofRs.2,65,89,346/-.

¶32Mr.K.Datta in rejoinder to the submissions made by Mr.Rajeev Sharma would submit that the respondent No.l had never taken the objectionregardingarbitrabilityof the disputes.He would state, rather a statementwas made on behalfofthe respondentNo.2 that MIB is willing to appointan Aititrator. In thatregard,he drawsmy attentionto the order dated June 01, 2012 and May 28, 2012 passedin the petition. In view of suchastatement,it is not correcton the partofrespondentNo.l to contend that the issues/disputes are not arbitrable in the absence of an agreement/arbitrationclause. He would reiteratethe submissionmade by Mr.Sethi]-egardmginadequacyof the tower in Chennai,being ofalower height.So, the issueofinadequacyofinfrastructureis an issuewhich falls OMP 280/2012&connectedpe/itions Page 30 of50 under the PMA and as such arbitrable.He referredto Annexure1of the PMA. He would also state that as per Section 7(4)(c) of the.Act, an ArbitrationAgreementis in writing, an exchangeof statementsof claim and defence, in which the existenceof the agreementis alleged by one party and not denied by the other party. He refer to para 48-49 of the petitionand coiTespondingpara in reply in this regard. He also refers to the order of the DivisionBench dated March 02, 2012 passedin W.P.(C) 1257/2012 filed by one of the petitionerin this batch of petitions i.e. Radio One Ltd', to contendthat the DivisionBench has said that remedy foi the petitioneris to initiate arbitrationproceedingsand seek interim directiontherein.He has referredto Clause5.3 ofthe GOPA filed in OMP No.295/2012to contendthat GOPA recognizesthe constmctionof tower UnuughBECIL. In the last it is his submissionthat withoutprejudice,the petitionershall deposit the principal amount, excluding interest in this Court, pending decision by the Arbitrator, the NOC must be given to enablethe petitionerto migrate;otherwisegreathardshipshall be causedto the petitioner.Out ofthe 45 stations,the disputeis withregardto only one. According to hrni, as the petitioneris operating at other places, there cannot be an appreJ^ension that the petitioner would not be able to discharge the liabilityif establishedagainst the petitioner.He has filed writtensubmissionsin OMP 273/2012. OMP 280/2012&connecledpeHlions Page 3! of50 9'

¶33Mj.Rajiv Nayyar, learned Senior Counsel who appeared for the petitionerin OMP 273/2012 adopted the arguments advanced in OMP 280/2012by Mr.SandeepSethi/Mr.K.Datta.That apart he would point out the letter dated December 19, 2014 written by BECIL and January 19, 2015 written by the petitioner No.l, which provide justification for non payment of the dues by the petitioner. He would state, insofar as monitoringchargesare concerned,the same shallbe paid by the petitioner. He would also state, for the last so many years,the respondenthas assured the petitioner during the hearings that the issue would be resolved or in the alternativelythe matterwould be referredto arbitration,but atthis pointof time to say that the issue with regard to tower rentals is not arbitrable is unjustified.He says as per Section7(4)(b)& (c), read with the statements made and avemientsnot denied by the respondentNo.l, in its reply, the existence of an arbitrationclause is admitted and in that regard he has drawn.myattentionto para Nos.48 & 49 of the reply. Accordingto him, without prejudice, the petitioner is ready to deposit the amount in the Court. He would rely on the judgmentof the SupremeCourt in BSNL & Ors. Vs. M/s. SiibhasChandra,KanchanandAnr.,AIR 2006SC3335

¶34Mi-.RajeevSharma,learnedcounselfor the respondentNo. 1would submit that the petitionerclaim to have invoked clause 17.1 of the PMA executedwith BECIL. Accordingto him, tower rental interestthereinand OMP 280/2012&connectedpetiHons Page32 of50 monitoring charges do not fall within the ambit of the PMA and therefore, disputes are not covered under PMA. He would also state that, the reliance placed on Section 7(4)(b) and (c) of the Act is not tenable. For applicability of Section 7(4)(c), there has to be a specific averment which has not been denied. A bare reading of paragraph 48 shows that there is no specific averment regarding tower rental and monitoring charges . He relied upon the judgment of the Supreme Court in S.KPrasad Vs.Monnet Finance Ltd, and Ors., AIR 2011 SC 442, On Section 7(4)(b) of the Act, he would state, the letters must record the existence of an agreement. According to him, no such letters have been pointed out. He would also state that the tower/tower rentals are not part of PMA as is clear from Annexure I and III, which lists out the CTI. According to him, any jurisdictional issue needs to be pleaded by the petitioner and the Court also needs to consider such an issue while exercising jurisdiction. On the statement of the ASG, regarding willingness of the Govt. of India to appoint an Ai'bitrator as a proof of existence of an Arbitration clause, it is the submission, such submission needs to be rejected for the following reasons;

(i) MIB only nominates the Arbitrator;

(ii) The Secretaiy does not even have to see whether Arbitration Agreement exists and whether the disputes are within the ambit of OMR 280/2012&connectedpetitions Page 33 ofSO arbitration agreement;

(iii)The statementofASG isnotindicativeof any consentby BECIL. He would, on the judgment of the Division Bench, states that, the DB did not go into the question as to what disputes are arbitrable and contains no adjudicationon the said issue. In the last, he states, once policy has been upheld, it is not a case of an interim measure.

¶35Mr. R.Gogna, learned CGSC for MIB states that even after the order dated 28.05.2012 was passed, when statement of learned Additional SolicitorGeneralwas recorded,the MIB has filed its reply in some of the petitionswherein,it has been aveiTedthat since MIB is not a party to the PMA, and since there is no arbitrationagreementbetween the petitioner and the answering respondent, the petition against MIB is not maintainable.

¶36Mr.K.Datta in OMP No. 295/2012, apart from relying on the submissionsmade in other petitionswould state that the petitionerwould depositin Court the amountclaimedby therespondentNo. 1.

¶37Mr.Rajeev Sharma has referred to para No.4 & 5 of the affidavit which is alreadyreproducedabove to state , the petitioneris liableto pay the dues, and till such time, NOC cannot be issued.

¶38The learned counsel for the petitionerin OMP No.291/2012,which OMP 280/2012&connectedpetitions p^gg 3^ is filedpiimarilyagainstPrasarBhartiwouldsubmitthat an invoicefor the year 2014-15 has been raised by the Prasar Bharti for the usage of infrastructurei.e. tower, open space, common facilities.The petitioneris readyto pay 50% of the amountto the PrasarBharti.

¶39Mr.Shaimaon the other hand would submitthat the petitioneris in arrears of Rs.1,02,82,583/-and hardship is not a ground to not pay the dues. Mr.Sharma also justifies, claim of Rs.1,13,38,168/- towards monitoringcharges and CTI charges against the petitionerin OMP No. 294/2012.

¶40Having consideredthe submissionmade by the learnedcounsel for the parties,the foremostquestionwhich arises for considerationat least in OMP Nos. 280, 273-and 287 of 2012, is whether the petitions under Section9ofthe Act per se are maintainablein view ofthe objectiontaken by the learned counsel for respondentNo.l that the disputes regarding tower rental and interest thereon, is not covered by the PMA, the agreementwhichthey invokedfor the purposeoffilingthe petitions.From the pleadings,it is clearthatthe petitionersin the aforesaidOMPs did rely on the arbitrationclausein PMA. It is to be seenwhetherPMA encompass mitselfthe issue related to tower rental to attract the arbitrationclause. The clause 3.1 of the PMA stipulates, BECIL providing project management sei^ices to build, install, commission and complete the OMP 280/2012&connectedpetitions Page J5 of50 Common Transmission Infrastructure and clause 5.1 stipulates in considerationthe operatorshall pay to BECIL its share of actual net costs and fee @10% of its share of actual net costs. Sufficeto state, as stated above,the CTI does not includetowerconstructionor the rentalto be paid for its usage.RatherIfind, the petitionerin OMP No. 273/2012in para 13 of the petition has admitted that the parties i.e. the operators and the BECILwere also requiredto enterinto agreementfor use oftoweraperture and paymentofrent. It has also come on recordin OMP No. 273/2012,in the reply ofthe respondentNo.l, as per AnnexureR3, which is acopy of the minutesofmeetingheld betweenthe officialsofBECIL,AIR, Private FM Broadcasting Companies under the Chairmanship of JS(B) MIB wherein, in para 2.5, of the minutes, the following is recorded on operational date for tower rent fixation

2.J. Operationaldatefor towerrentfixation FM operators stated that they had signed agreementsfor tower rentalat certainprice in 2006. As per agreements,the tower rentalis to escalateat certainrateper annum. The FM operatorsstartedusing the tower in 2008 even though they signedthe agreementsin 2006. BECIL is chargingthem the tower rental from 2006 However, the FM operators requestedthat the tower rentalshouldbe chargedfrom 2008, from the dateofactualuse insteadof2006, the dateofsigning the agreement". OMP 280/2012&connectedpelitions

¶41From the above, it is clear that without any doubt that the parties were required to execute a separate tower agreement, which would have governed the tower rentals. Mr.Rajeev Sharma may be right in his submission that despite being called upon to execute the agreements,the petitioners have not come forward. In any case, it is suffice to state that the issue/dispute of tower rentals is not governed by PMA and the invocation of PMA seeking relief under Section 9 is not tenable. To seek relief under Section 9, an existence of an arbitration agreement is necessary and in that regard Section 7 of the Act defines Arbitration Agreement to mean as under:-

¶7Arbitration agreement. —

(1) In this Part, "arbiti^ation agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect ofa defined legal relationship, whether contractual or not.

(2) An arbitration agreement may be in theform of an arbitration clause in a contract or in the form of a separate agreement.

(3) An arbitration agreementshall be in writing.

(4) An arbitration agreement is in writing if it is contained, in—

(a) a documentsigned bytheparties; OMP 280/2012&connectedpetilions Page 37 of50

(b) an exchange of letters, telex, telegrams or other means oftelecommunicationwhichprovidea recordof the agreement; or

(c) an exchangeofstatementsofclaim and defence in which the existenceofthe agreementis allegedby one party and not denied by the other.

(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitrationagreementif the contractis in writingand the reference is such as to make that arbitration clause part of the contract.

¶42Section 7 of the Act had come up.for interpretationbefore the SupremeCourt in TravancoreDevaswomBoard Vs, PanchamyPack (P) Ltd,, (2004)13 see 510 wliereinthe SupremeCourthas in.paras 6,7 and 8 held as under:- "6. We are unable to accede to any of the three submissions made by the respondent. The ArbitrationConciliationAct, 1996, clearlyprovides thatthe arbitrationagreementmustbe an agreement whichshouldbe in writing(seeSection 7(4)). In this case, therewas no agreementatall, quiteapartfrom thefact that there was no writingto this e.ffect. The High Courthas not in the impugnedorderrecorded any consent as has been contended by the OMP 280/2012&connectedpetitions ' respondent. We are not prepared to act on any basis other than that expressed by the High Court itself.

¶7The impugned order, therefore, cannot be sustained. In the absence of any agreement the Arbitrator could not have any jurisdiction. The participation of the appellant in the preliminary sittings before the Arbitrator would not make any difference. It is to be noted that under Section 7 Sub section (2), the ground challenging jurisdiction of the Arbitrator is required to be taken at the earliest and not later than the filing of the defence but a party shall not be precluded from raising such a plea merelybecauseit has appointedorparticipated in the appointmentofan Arbitrator.The languageof the Section, therefore,leaves no roomfor doubtthat mere participation in the proceedings woidd not tantamount to an acceptance of the jurisdiction of the Arbitrator to arbitrate disputes between the parties.

¶8The decision reportedin Tamil Nadu Electricity Boardcase (supra) is dn allfours with thefacts of the present case. This Court has clearly said in paragraph 2 ofthe decision: "12. Since disputedquestions offacts arose in the present appeals the High Court should not have entertained Writ Petitions under Article 226 of OMP 280/2012&connectedpetitions jp A7 Constitution and then referred the matter to arbitrationin violationoftheprovisionsof the new Act. There was no arbitrationagreementwithin the meaning ofSection 7 of the new Act. Under the new Act, awardcan be enforcedas ifit is a decreeofa Court and yet the High Courtpassed a decree in terms of the award which is not warranted by the provisions of the new Act. The appellant had also raisedtheplea ofbar oflimitationas in many cases if suits had been filed, those would have been dismissedas havingbeenfiled beyondtheperiodof limitation.In our opinionexerciseofjurisdictionby the High Courtin entertainingthepetitionswas not proper and the High Court in any case could not haveproceededto have the matteradjudicatedby an arbitratorin violationof the provisionsof the new Act."

¶43Similarly,in SMPrasad(supra),the SupremeCourtheld that there can Ije aieferenceto arbitrationonly when there is an agreementbetween the parties.Ifthereis adisputebetweenaparty,to an arbitrationagreement with other parties as also non parties, the reference can be only with respectto the partiesto the Ai'bitrationagreementand not the nonparties.

¶44On the maintainabilityof Section 9 petition in the absence of an arbitration agreement, this Court in Ashok Kumar and Am. Vs. SBI OfficersAssociationandAm, 2013XAD (Delhi)512 has held as under:- OMP 280/2012&conneciedpetitions

¶15It IS well settledprincipleof law that the court seizedofan application under Section9ofthe Act can form aprimafacie opinion on the preliminary aspects relatingto arbitrabilityofthe disputepriorto grantingor refusingthe interimmeasuresunderthe saidsection. This is due to the reason that the court wouldproceed to considerthe grantor non g,-antofthe interim measures only upon the satisfaction that there exists a valid arbitration clausecoveringthe disputeraisedb^ore the court. The said preliminary enquiry relating to arbitrabilityofthe disputeis thejurisdictionalfact which enablesthe courtto assumejurisdictionon the application andproceedto considerthesameon merit.Ifon the other hand, the disputeitselfdoes not fall within realm ofthe arbitration,then the court may straightawayproceed to . , theapplicationas the courtmay notbe ableexercise Itspowers underSection9oftheAct.

¶16The positionin law has been aptly describedby the Supreme Court in the case of SBP &Co. v Patel EngineeringLtd &Anr [(2005)8SCC 618]whereinthe Apex Court has consideredthe powers of the court or judicial authority at great length when faced with a questionas to whetherthepowerto appointthe arbitrator IS ajudicialpower or administrative function. While answering the .,aid question, the Supreme Court also proceeded to observe that the court seized of the applicationunderSection9 has thepowerto examinethe OMP280/2012 connectedpeHlions Page 41 of50 /o>- validityofthe arbitrationagreementandalso to arriveat the finding whether the dispute is covered by the arbitration clause or not. Upon satisfaction of the preliminaryjurisdictionalfacts, the courtcanproceedto assumejurisdictionover the subjectmatter. In the words of the Supreme Court speaking through Hon'ble Balasubramaniyamfor Majority (as his lordship then was), it was observed thus: "Similarly Section 9 enables a Court, obviously, as definedin the Act, when approachedby apartybefore the commencementofan arbitralproceedingto grant interim, reliefas contemplatedby the Section. When a partyseeks an interimreliefassertingthattherewas a dispute liable to be arbitratedupon in terms of the Act, andthe oppositepart)!disputesthe existenceofan arbitrationagreementas definedin theAct or raisesa plea that the disputeinvolved was not coveredby the arbitration clause, or that the Court which was approachedhad no jurisdictionto pass any order in term, of Section 9 of the Act, that Court has necessarily to decide whether it has jurisdiction, whether there is an arbitrationagreementwhich is valid mlaw and whether the dispute sought to be raised is covered by that agreement. There is no indicationin the Act that thepowersofthe Courtare curtailedon theseaspects. On the otherhand. Section 9 insists that once approachedin that behalf "the , OMP280/2012&connectedpetitions Page 42 of50 ) Court shall have the samepowerfor making orders as it has for the purpose of and in relation to any proceeding before it". Surdy, when a matter is entrusted,to a Civil Court in the ordinary hierarchy of Courts without anything more, the procedure of that Court would govern the adjudication. " (Emphasis Supplied)

¶45Now it is to be seen,whatis the effectof the pleadingsof the parties, more specifically, in para 48 and 49 of OMP 273/2012 and also the statement made by the learned ASG regarding appointment of an Arbitrator, on the dispute regarding tower rental. Whether the dispute regarding tower rental can at all be referred to arbitration.

¶46I note, the petitioner in OMP 273/2012 in para 48 has stated "that due to the inactionand/orfailureand/orrefusalby the respondentto act in accordancewith the agreementsin releasingthepaymentsto thepetitioner illegally withheld by it, releasing outstandingdues payable under the PMAs; delayingany issuanceofany clarificationson rentalsandsecurity charges for sightsat Delhiand Chennai XQX", to which, the reply ofthe respondentBECIL is "it is deniedthat there is any inactionand/or failure and/or refusal by respondent to act in accordance with the agreements. It is deniedthatthe respondentis liabletopayany amount to the petitioner or there is any outstandingdues payable by it under the OMP 280/2012 connectedpetitions /oS project management agreement to thepetitioner. It is denied that there is any delay in issuanceofclarificationson rentalsand the securitycharges for sites at Delhi and Chennai

¶47To construean avermentmade is an acceptanceof a particularfact, it is necessaiy,that such avermentmust be specificand unambiguousand not by drawing an inference. To construe that the averments made above relatesto towerrentals,the petitionersshouldhave pleaded;the agreement in question (PMA) is in writing and deals with tower rentals and the said agreementcontainsarbitrationclausefor settlementof disputeswith regard to towerrentals. In the absenceof a specificand unambiguousstandin the petition, it cannot be construed that the respondent has accepted the existence of an arbitration agreement with regard to tower rentals. Moreover, any claim by the petitioner with regard to existence of an arbitration agreement qua tower rentals carmot be read in isolation overlookinga specific stand of the petitionerin para 13 of the petition, \vheiein,the petitionerhas concededthatthe partieswere requiredto enter into agreementstowards the use of CTI tower aperture at the cities of Chennaiand Delhi and paymentofrent. Itcannotnow, pleadand contend that the avermentsin para 48-49 must be read to mean that it had taken a standthatthe towerrentalsare coveredby PMA.

¶48With regard to the statementmade by the learnedASG during the OMP 280/20J2t?: connectedpelitions hearing on May 28, 2012, it is noted, the same has to be read in the context that Union of India is willing to appoint an Arbitrator in terms of the Arbitrationclause (emphasis supplied). Suffice to state, with regard to tower rentals, neither there was an agreement nor any arbitration clause. The statement, can be read with regard to the disputes related to the agreementsexecutedbetweenthe parties i.e. PMA. It is also the case of MIB duringthe submissionsthat after the hearing,dated May 28, 2012, it has pleaded in its reply that in the absence of MIB being a party to the arbitration agreement, the same is not binding on it.

¶49Insofar as the judgment on which reliance was placed by Mr.Rajiv Nayar, in the case of BSNL and Ors. (supra) is concerned,the Supreme Court was considering a case wherein, existence of an arbitration agreementis not disputed. Rather, clause 25 was an arbitrationclause,in terms of which, the Arbitrator was to be appointed by the Managing Director of the appellant company. While hearing an applicationunder Section 11(6) of the Act, no objectionwas given by the counselfor the appointment of Mr.B.C.Bhattarcharyaas an Arbitrator. The said statementwas sought to be resiled from by the learned counselfor the appellant,which was not agreed to ,by the High Court and in the said background,the SupremeCourtheld, such a statement,cannotberesiled OMP 230/2012& connectedpetitions Page 45 of50 from in view of the provisionsof Order III Rule 1 of the Code of Civil Procedure. The facts of the present case are different inasmuch as there is no arbitrationagreementin this case on tower rentals, the judgment would not help the petitioner's case. Further, the order of the Division Bench in W.P.(C) 1257/2012dated March 2, 2012 would also not help the case of the petitioners.

¶50From the above, I note the disputes/differencesbetween the parties primarily are as below: Petition No. Nature of dues Payable under OMP 280/2012

(1) Tower rental; Cliennai

(2) Interest on tov\'er rental for the city ofDelhi, Hyderabad And Chennai

(3) Intereston STLoutstandings No agreement for (1) and (2)

(3) GOPA OMP 273/2012

(1) Tower rental for the towers at Chennai and Delhi with interest

(2) Monitoring charges for 7 cities

(1)No agreement

(2) GOPA OMP 287/2012

(1).Tower rental at Chennai with Interest

(2) Monitoring charges for 7 Cities

(1) No agreement

(2) GOPA OMP 295/2012

(1) Monitoring charges in Respect of 8 cities

(2) CTI outstandings

(1) GOPA

(2) PMA OMP 291/2012 Tower, open space, common Facilities Agreement with Prasar Bharti OMP 294/2012

(1) Monitoring charges

(2) CTI charges

(1) GOPA

(2) PMA

¶51The petitionersin the present petitions have primarily invoked PMA. The disputes under PMA are primarilyCTI charges. In OMP 280/2012,OMP 273/2012and OMP 287/2012,tower rentalshave also been claimed, for which, there is no agi'eement.In the absence of an agreementfor referringthe disputesrelatingto tower rentals,a petition OMP280/2012&connectedpetitions p^gg gj-^g underSection9ofthe Actwouldnot be mamtainablenor adirectionas soughtfor by the petitionersfor issuanceofNOC can be granted. These petitionsare accordinglydismissed.

¶52Insofar as OMP Nos. 295/2012, 291/2012 and 294/2012, are concerned,they primai-ilyrelate to monitoringcharges, CTI cirarges, charges for common facilitiesetc. under GOPA/PMA/agreementwith PrasarBharti. In OMP 295/2012,the petitionerhas only invokedclause

17.1 ofthe PMA and not tlie correspondingclausein GOPA. Insofaras OMP Nos. 291/2012and 294/2012are concerned,the petitionerhas not invokedthe relevant arbitrationclausetill date even thoughthreeyears haveelapsedsincethe filingofthe petitions.This itselfcan be aground to dismissthesepetitionsunderSection9in view ofthe pronouncement ofthe judgmentoftlie SupremeCourt in SundanmFinanceLtd. Vs. mPC IndiaLtd., (1999) 2SC 479 wherein, the SupremeCourt has stated, that, when an applicationunder Section9of the Act is filed beforethe commencementofthe aibitralproceedings,therehas to be a manifestintentionon the pai't of the applicantto take recourseto the arbitral proceedings. Absence of Invocation does not reveal the manifestintentionon the part of the petitionerto take recourseto the arbitralproceedings. Apossible argumentof the petitionerson this OMP 280/2012 & connected petitions • couldbe, it was underthe bonafide beliefofthe mattersgettingsettled.

¶53It is true, as seen from the order sheets, the petitions also got adjournedon the groundofsettlement. It is also noted,thatthe last date ofmigrationto PhaseIII also got extended. Possibilityofthe petitioners being under the bona fide beliefthat matters would be settled, and as such, no steps were taken to invokearbitrationclauses,cannotbe ruled out, but, the larger question would be whether they have made out a prima facie case, for grant of interim measure. The answer is in the negative,for more than one reason; the amount soughtto be recoveied by BECIL/Prasar Bharti has a contracttial basis, in GOPA/PMA/Agreementin the case of Prasar Bharti; the agreements have been executed as per the policy enunciated by the MIB; the demandmade is not speculative. I note from the respectivestand ofthe parties,they are justifying/contestingthe demand. The differencesneed to be decided,throughthe processofarbitrationcontemplatedunderthe agreements,that cannotbe areason,not to pay the dues as demandedfor the purposeofNOC, in terms ofthe policy dated July 25, 2011, which provision has been upheld by the Division Bench of this Court in W.P.(C) 1257/2012.Even though, the petitionershave offered to give bank guaranteesas security/paysome ofthe amount,this Court is ofthe OMP 280/2012&connectedpelUioiis 48 of50 N- •^9 view, the only orderthat can be passed,keepingin view the facts is that, insofar as OMP No. 295/2012 is concerned, the petitioner shall deposit the entire amount as claimed from it with BECIL within 10 days from today. On depositof the said amount, the BECIL, shall issue NOC to the petitionerwithintwo days. Simultaneously,the petitionershall also invoke the arbitration clause under GOPA. The BECIL shall keep the amount so depositedby the petitionerin an interestbearingFDR(s) till the culmination of the arbitration proceedings by the Arbitrator, to be appointed by this Court in the petition filed by the petitioner under Section 11(6) of the Act and pursuantto invocationof GOPA in terms of this order, so that the interest amount is enured to the successful party. Sufficeto state, the depositof the amountis subjectto the orders to be passed in Arbitral proceedings.

¶54Similarly, insofar as OMP Nos. 291/2012 and 294/2012 are concerned,the petitionershall depositthe entire amountclaimedfrom it with BECIL/Prasar Bharti within 10 days. On deposit of the said amount, the BECIL/Prasar Bharti shall issue NOC to the petitioner within two days. Simultaneously, the petitioner shall also invoke the arbitration clause for appointment of an Arbitrator within 10 days from today. The BECIL/PrasarBharti shall keep the amount so deposited by OMP280/2012 & connectedpelilions Page 49 of50 /V the petitionerin an interestbearing FDR(s) till the cuhnmationof the arbitrationproceedingsby the Arbitrator(s),so thatthe interestis enured to the successfulparty. Suffice to state, the deposit of the amount is subjectto the ordersto be passedin arbitralproceedings.

¶55The conclusionis, OMP Nos. 273/2012,280/2012and 287/2012 are dismissed.

¶56OMP Nos. 291/2012,294/2012 and 295/2012are disposedof in terms of the directionsin para 53 & 54 ofthisjudgment. MARCH 10, 2015 akb I 'f-O'- ! . • JUDGE •,.»N OhdP 280/2012 connectedpetitions ^0of50

n * IN THE HIGH COURT OF DELHI AT NEW DELHI + O.M.P. 273/2012 RADIO ONE LIMITED Petitioner Through: Mr.Rajiv Nayar, Sr. Advocate with Mr.Kirat Singh Nagra and Mr.Kartik Yadav, Advocates Versus BROADCAST ENGINEERING CONSULTANTS INDIA LTD ... Respondent Through: Mr.Rajeev Sharma, Adv. with Ms.Radha Lakhmi R., Adv. for R-1 Mr.R.Gogna, CGSC along with Mr.VipuI, Ms.L.Gangmei, Ms.Tanisha, Advs. for Ministry of Broadcasting (UOI) + O.M.P. 287/2012 MALAR PUBLICATIONS LTD Petitioner Through: Mr.Abhishek Malhotra, Mr.Debashis Mukherjee, Adv. Versus BROADCAST ENGINEERING AND CONSULTANTS INDIA LIMITED & ANR Respondent Through: Mr.RajeevSharma, Adv. & Mr.Vivek Goyal, CGSC with Mr.M.Tapan Sharma, Adv. for U0I/R2 + O.M.P. 295/2012 PURAN MULTIMEDIA LTD Petitioner Through: Mr.K. Datta, Advocate with Mr.Ashish Verma and Mr.Rahul Malhotra, Advocates Versus BROADCAST ENGINEERING AND CONSULTANTS & ANR Respondent Through: Mr.RajeevSharma,Adv. with Ms.RadhaLakshmi R., Adv. for respondent No. 1 Mr.R.Gogna, CGSC along with Mr.VipuI, Ms.L.Gangmei, Ms.Tanisha, Advs. for Ministry of Information & Broadcasting (UOI) + O.M.P. 291/2012 DHAMAAL 24 RADIO NETWORK LTD. Petitioner Through: Mr.AbhishekMalhotra,Adv. withMr.NitinBhatia, Adv. Versus PRASAR BHARTI Respondent Through: Mr.Rajeev Sharma, Adv. + O.M.P. 294/2012 DHAMAAL 24 RADIO NETWORK LTD. Petitioner Through: Mr.AbhishekMalhotra,Adv. withMr.NitinBhatia, Adv. Versus r BROADCAST ENGINEERING AND CONSULTANTS INDIA LTD. AND ANR. Respondent Through: Mr.Rajeev Sharaia, Adv. CORAM: HON'BLE MR. JUSTICE V. KAMESWAR RAO