A Division in the Bench created this reference. Ironically, answering the reference would create a decision of the Division Bench.

2. If patience is considered as a virtue, it could be stated to have well served, upon hearing the submissions of eloquence of the learned counsels representing competing interest.

3. Heard the learned Senior Counsels and learned counsel appearing for the petitioners, respondents and intervenors and perused the documents, pleadings and written arguments.

4. SCOPE OF REFERENCE:-

4.1. Before venturing into the case in detail, it would be appropriate to define the role of this Court as the boundary lines are to be defined, drawn and marked. Clause 36 of the Letters Patent of the Madras High Court defines and delineates the contours of the power to be exercised by the learned single Judge, when a reference is made as to the decision given on any point of difference.

Apropos Clause 36:-

“36. Single Judges and Division Courts:-

And We do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Madras, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose, (in pursuance of Section 108 of the Government of India Act, 1915), and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided (they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case included who those first heard it.)”

4.2. The role required to be played by a single Judge is accordingly distinctly marked. This specific role assigned is to confirm either of the decisions on a point of difference. Even in a case where the exact point of difference is not indicated, the Reference Court can formulate and proceed to answer it on a reading of the respective views. Such a role would encompass both fact and law. For concurring with a view of one as against another, the Reference Court can give its own reasons by supplementing it. On the same score, if the ultimate decision is one and the same, but reasons being different, the Reference Court cannot go beyond it. The power available cannot be equated with that of a review nor an exercise resulting in sitting in judgment over the other.

4.3. After completion of the main round of arguments, the learned Senior Counsels appearing for the petitioners took an unexpected stand against the grain on the restrictive scope of reference inter alia contending that both the learned Judges concurred with each other on the jurisdiction of the Telecom Regulatory Authority of India Act, 1997,(hereinafter referred to as the TRAI Act, 1997) over content. Resultantly, the one and only issue to be considered is to the existence of content as a fact in the impugned Regulations and Tariff Order. The said contention so made cannot be countenanced for more than one reason. It is an half hearted attempt to read the judgment as a statute. In the lead judgment, the scope of the TRAI Act, 1997, The Copyright Act, 1957 and the Tamil Nadu Cable Television Networks (Regulation) Act, 1995, and rules were indeed considered, though to a limited extent. While it is a case of the petitioners that the regulatory authority, hereinafter referred to as TRAI, through the impugned Regulations and Tariff Order, regulates the content, no such power is available under the TRAI Act, which jurisdiction is occupied by the Copyright Act, 1957. In the differing judgment, the Hon'ble Chief Justice has clearly stated in paragraph 3 of the order that the question raised in the