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Official Citation: 2025 PLD 69
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Southern Network Limited through Chief Executive vs Government of JUDGMENT
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-12-31, officially reported as 2025 PLD 69. In this matter between Southern Network Limited through Chief Executive and Government of JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLD 2025 Sindh 69
Court Name: Sindh High Court Judge(s): Abdul Mobeen Lakho, Aqeel Ahmed Abbasi (C.J) Title:Southern Network Limited through Chief Executive vs Government of
JUDGMENT
Reported As: PLD 2025 Sindh 69 Result: Petition dismissed Judgment
JUDGMENT ABDUL MOBEEN LAKHO, J. Through instant petition, the petitioner firm, who is engaged in the business of managing, operating, distributing Cable Television Network under MMDS System and claims to have been granted an exclusive license on 20.03.1995 in perpetuity by the Respondent No.1, has impugned the letter dated 12.07.2006, whereby, the petitioner has been asked to approach for frequency allocation to Frequency Allocation Board (FAB) within 15 days, failing which the Authority will take legal action. Being aggrieved by the letter dated 12th July, 2006 issued by PEMRA, the petitioner has prayed as follows:- (i) declared that MMDS license being peculiar to this frequency and there being no MMDS frequency available for multiple grants, enjoyed by the petitioners under their license of 1995 is inviolable and shall continue to be enjoyed by the Petitioners. (ii) direct the said respondent to refrain from interfering with the aforesaid rights and license of the Petitioners. (iii) declare that Section 23 of PEMRA Ordinance is ultra vires the Fundamental Rights of the Petitioner, is a mala fide piece of legislation, being petitioners-specific and discriminatory and therefore is of no legal effect or consequences to the right of petitioners under the license granted to them in 1995. (iv) It be declared that the license granted to the Petitioners cannot be made inoperative under the PEMRA Ordinance 2002.
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(v) It be declared that the Respondent has acted illegally, and all actions of each of the Respondents be set aside. (vi) Direct the Respondents and each of them to act on the existing licenses granted by the Respondent No. 1, namely the MMDS License No. CT. 001 dated 20.03.1995 and the Frequency Allocation by the Pakistan Wireless Board dated 28.01.1995. 2. Brief facts of the case as narrated in the memo of petition are that in the year 1994 the Petitioner along with some other parties submitted to the Respondent No. 1, through the defunct Pakistan Wireless Board (PWB), their proposal for setting up Cable Television Network under MMDS System at various locations in Pakistan, thereafter, the Respondent No. 1 granted to the Petitioner (then Pay TV Ltd) an exclusive Television Transmission License No. C.T. 001 dated 20th March 1995, to establish a Cable Television Network under MMDS all over the Country, which is reproduced as under:- "GOVERNMENT OF PAKISTAN MINISTRY OF INFORMATION AND BROADCASTING No.2(5)/95-TV Islamabad March 20, 1995 LICENSE FOR CABLE TELEVISION NETWORK (NO. C.T.001) 1. Messrs Pay TV Limited, No. 4, Mohammadi Plaza, F-6, Blue Area, Islamabad, with its registered offices at No.15/1-7th Gizrl Lanett PHASE IV, Defence Housing Authority, Karachi with Company Registration No. K-05920 of 1994-95 is hereby granted LICENSE to establish a Cable Television Network under MMDS (in the Private Sector) for transmission of Programmes all over the country. 2. This is an exclusive Licence in the private sector for establishing and operating Cable TV Network (MMDS) in Pakistan. 3. This license is subject to compliance of terms and conditions between the licensee (Pay TV Ltd) and Licensor (Ministry of Information and Broadcasting.) Sd/- (SALIM GUL SHEIKH) Director General (IP) Tele: 823744" In order to transmit programmes, Petitioner applied to the Pakistan Wireless Board in July 1995, for assignment/allocation of frequency band and on 28.01.1996 the Board assigned frequency for MMDS Cable TV Wireless Broadcasting system, which reads as under:- "GOVERNMENT OF PAKISTAN MINISTRY OF COMMUNICATIONS PAKISTAN WIRELESS BOARD SECRETARIAT 85-WEST RIZWAN CENTRE, BLUE AREA ISLAMABAD No W.6-86/95 Dated: 28-1-1996 To, Messrs Pay TV Private Ltd. 1st Floor, umer Plaza, 76-West, Blue Area, Islamabad Sub:- ASSIGNMENT OF FREQUENCY FOR MMDS CABLE TV WIRELESS BROADCAST SYSTEM Reference your letter No. PAY TV/95/001 dated 16-7-95 on the above cited subject. Please be informed that the frequency Band 2556-2619 MHz and 2668-2689 MHz (Total 12 TV channels of 7 MHz each) have been assigned for the applied PAY TV Broadcast System for the cities of Lahore. Islamabad and Rawalpindi and the Band 2550 - 2690 MHz (20 TV Channel of 7 MHz each) for Karachi City. The balanced TV Channel applied for the cities of Lahore and Islamabad/Rawalpindi are under consideration and shall be assigned on vacation from the existing users.
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You are requested to pay a sum of Re: 28740/- (Twenty Eight Thousand Seven Hundred and Forty) In respect of registration, wireless licence fee and royalty to Senior Accounts Officer Telephone Revenue, Karachi and paid voucher be sent to this office. These charges are provisional and subject to the condition that M/s Pay TV will have to pay the revised charges with arrears as and when the new tariff schedule is approved by the competent authority. Sd/- (Khushmir Khan ) Director Pakistan Wireless Board" Both acts are supplementary to each other and the Petitioner kept paying the fee regularly, but allegedly on the behest of some influential persons the petitioner was threatened with cancellation of their license for reasons devoid of any bona fide. The petitioner in order to protect its valuable Constitutional rights filed Constitutional Petition bearing No.D-971/1995 on 21st May 1995 and was successful in obtaining a status quo order on 22.05.1995, however, as the law had completely been altered, it was necessary to file another petition with some additional grounds. After grant of license to the Petitioner in 1995, the Government brought amendments in the relevant laws and/or has promulgated new laws but the central issue of validity of the broadcasting license, its protection from any unlawful or unilateral cancellation and for safeguard of the frequency remained the same. 3. That in 1996 under Pakistan Telecommunication (Reorganization) Act, Frequency Allocation Board (Respondent No.3) was created to take over the functions performed by the Pakistan Wireless Board, thus Respondent No.3 took various steps to curtail the lawful use of the license in question. That under Rule 26 of PEMRA Rules, all Private broadcasters having license in MMDS System are required to apply for a license under the Rules. That after the license was granted, the Petitioners took up the challenge and stated to set up the MMDS System Station at its relevant location. The said MMDS System Stations are functioning and has been very successful. That suddenly the Respondent No.4 (FAB) insisted that the Petitioner is liable to surrender the MMDS frequencies and apply afresh for allocation to the FAB, whereafter, the Respondent No.4 would allocate "fresh frequencies" as are in its discretion and on such terms and conditions as are prescribed by it. The Respondent No. 4 called upon the petitioner to suspend their test transmission and launching of their upgraded network, whereas, the Respondent No.4 is only concerned with the fresh allocation of frequencies and the frequencies already allocated by the Pakistan Wireless Board to the petitioner are binding on Respondent No.4 (FAB), because it is not in Respondent No.4's domain to raise such an issue and secondly there is no transfer of license and the license No.001 continues to be held by and vested in Petitioner and the Respondent No. 4 cannot impose restrictions on the issue of the license. That on 07.12.2005 the Respondent No.3 served a notice on the Petitioner with the threat to cancel the frequency already allocated to the Petitioner under a subsisting license in clear violation of the rights of the Petitioner, which is reproduced as under:- "Government of Pakistan PAKISTAN TELECOMMUNICATION AUTHORITY Zonal Office, Wireless Compound, Opp. J.P.M.C. Karachi-75530 Phone #92-21-5211285, 5655437 Fax # 92-21-5680640 www.pta.gov.pk No. PTA-KR/602/05/05 Dated 7 December 2005 Subject: Unauthorized use of the RF spectrum Frequency Allocation Board has reported that your organization is using the 2556.262 Mhz frequency slot without authorization. Unauthorized use of the RF spectrum is a violation of the Pakistan (Telecommunication) Re-Organization Act 1996, you are therefore advised to stop the
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unlicensed activity forthwith under intimation to this office by 19th December 2005 positively. Non-compliance will constrain this office to initiate legal action as per Pakistan Telecommunication (Re-Organization) Act 1996. Sd/- Rizwan Ahmed Hydri Zonal Director Station Manager Messrs Southern Networks Ltd. Saima Towers, Tower-A, II. Chundrigar Road, Karachi." subsequently, the Respondent No.3 on 12.07.2006 served another notice upon the Petitioner with the threat to proceed legal action if the Petitioner failed to apply for frequency allocation to FAB, which is in clear violation of the rights of the Petitioner to deprive the Petitioner from exercising its right over the licence and against the Article 18 of the Constitution and action of the said respondent is liable to be declared illegal and without lawful authority and of no legal and consequences. The notice is reproduced as under:- "PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY ISLAMABAD No.F.10-3(1)PhaseI-2005 12th July, 2006 Subject: ILLEGAL USE OF FREQUENCIES Reference: MMDS licence Nos.5, 6 and 7, dated 20th May, 2004 issued for Karachi, Lahore and Islamabad stations respectively. Pakistan Electronic Media Regulatory Authority has issued MMDS licences to establish and operate MMDS TV channel distribution stations at Karachi, Lahore and Islamabad on the frequency to be allocated by Frequency Allocation Board (FAB). 2. However Messrs Southern Networks has not applied for frequency allocation to FAB till date therefore the operation of MMDS services in the licenced region is illegal. 3. Messrs Southern Networks is therefore requested to apply for frequency allocation to Frequency Allocation Board (FAB) within 15 days from the date of issuance of this letter, failing which the Authority would be constrained to take legal action. Sd/- (Dr. Abdul Jabbar) Director General (Tech). Mr.Salman Rasheed, Regional Manager, Messrs Southern Network, H#190-A, St.36, F-10/1, Islamabad." 4. Learned counsel for the petitioner argued that since the petitioner had been granted exclusive license commencing from 20.03.1995, therefore, respondents are estopped by act and deed under the doctrine of promissory estoppel from cancelling the license. Learned counsel further argued that the petitioner has invested enormous amount and has contributed in terms of skill, time, labour and other resources pursuant to above license, therefore, cannot be subject to any act of cancellation/suspension of the license arbitrarily, capriciously at the whims of respondents. According to learned counsel, the petitioner was neither informed even though there is a specific arbitration clause nor given any opportunity of being heard before initiating adverse proceedings seeking cancellation/suspension of a valid exclusive license. Per learned counsel, the grant of the license is within the discretion of the Government, however, once such discretion is exercised, the same cannot be withdrawn or revoked as it is violative of the vested right of the Petitioner. Learned counsel argued that the decision of the Cabinet suffer from bias and mala fides and the respondent neither has power or authority to cancel the license directly or indirectly nor to alter it in any manner and/or dilate or encroach upon it by granting parallel license or thereby destroying
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and/or dilating exclusivity of the license or altering any conditions therein cause the change of board/frequency. Learned counsel for the petitioner argued that the petitioner was granted license with exclusivity clause and it was necessary to make project viable because the license for MMDS broadcasting can be granted only to one person for overwhelming technical reasons and commercial propriety and to make a law which is applicable only to one person is ultra vires the Constitution. Learned counsel argued that the license was granted to the petitioner in the year 1995, whereas, PEMRA was created in 2002 vested with the same functions as were enjoyed by Respondent No. 1, therefore, the powers would be exercised in respect of the same license of which the revocation and grant afresh is not called for and is without any lawful justification. Learned counsel for the petitioner argued that under Section 32 the PEMRA has authority to grant exemption from any provisions of the Ordinance where it serves public interest and there are reasons for such exemptions and without prejudice to the above, there are overwhelming reasons for grant of exemption to the petitioner from such of the provisions of the Ordinance as have the effect of revoking and existing license and necessitating filing of application for similar license under the Ordinance. Learned counsel further argued that Rule 23 of PEMRA Rules is in violation of the vested rights of the petitioner in which it is provided that the new license granted to an existing licensee by way of validation shall be on such terms and conditions as the authority may from time to time prescribe, whereas, there can be no change of conditions attached to the existing license of the petitioner. Learned counsel also argued that the action of the Pakistan Telecommunication Authority and the Frequency Allocation Board to have incorrectly presumed that the Petitioner is using the frequency band 2556-2619 MHz, 2668-2689 MHz and 2550-2690 MHz for wireless system when, according to them no wireless license has been granted to the Petitioner. He further argued that the Respondents Nos. 2 and 4 without hearing the petitioner have arrived at a wrong conclusion that the petitioner has committed an offence under Section 31 of the Pakistan Telecommunication (Re-organization) Act 1996. In support of his contention. learned counsel for the petitioner has cited the following case law:- (1) PLD 2014 SC 478 (Pak Telecom Mobile Limited v. Pakistan Telecommunication Authority, Islamabad). (2) PLD 2002 SC 208 (Pakistan and another v. FECTO Belarus Tractors Limited). (3) 1992 SCMR 1652 (Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others). 5. Conversely, learned counsel for the respondent No.2 (PTA) argued that the license was issued to Messrs PAY T.V. to setup analogue MMDS system, however, the PAY T.V. changed its name as Shaheen PAY T.V. Limited due to inherent joint venture of PAY T.V. Limited and Shaheen Foundation, thereafter, in 2003 Shaheen PAY T.V. changed its name as Southern Network (Pvt.) Limited, therefore, the petitioner is illegally and unlawfully installed digital MMDS without having permission or valid license. Per learned counsel, the Respondent No, 2, wrote letter to the petitioner for allocation of frequencies for their use, but the petitioner intentionally and deliberately is avoiding to get the frequency allocated, whereas, illegally and unlawfully is using frequency which was allocated under the expired license, and is causing loss to government exchequer billions of rupees per month, He further argued that the Petitioner itself failed to renew its Pay TV license as under clause 15 of the License issued to Pay T.V it is clearly stated that "the licensed will terminate on the last day of December, 1996 when it becomes invalid unless renewed further". Learned counsel for the respondent No.2 further argued that the license was granted by the then Pakistan Wireless Board to Pay TV, while now the Petitioner does not possess license of Wireless System, because the same expired in 1996 due to non-renewal, therefore, the use of the frequency by the Petitioner is illegal and unlawful and due to the illegal use national exchequer suffers financial loss on account
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of frequency charges. According to learned counsel for the Respondent No.2 that the illegal use of frequency without valid license is a violation of Section 31 of the PTA Act, which reads as under:-- "31. Offences and penalties. (1) Whoever establishes, maintains or operates a telecommunication system or telecommunication service or possesses any wireless telegraphy apparatus or carries on any other activity in contravention of this Act or the rules or regulations made there under the Wireless Telegraphy Act, 1933 (XV of 1933) or the conditions of a license;" Learned counsel for the Respondent No.2 further argued that the Petitioner is not the licensee of the Respondent No.2 and is using frequency without having any legal justifications despite of the fact that the Respondents No. 2 repeatedly wrote letters regarding illegal use of frequency. Learned counsel for the Respondent No.2 further argued that the Respondent No.2 acted according to the Act, Rules and Regulations and have not violated the constitutional rights of the Petitioner He further argued that the Petitioner has no cause of action to file instant petition, therefore, it is not entitled to any relief before this Court. Learned counsel for the Respondent No.2 argued that since the License was issued to Pay T.V., and the same stood cancelled for its non-renewal by the Petitioner itself in 1996, therefore, the petitioner without approval in writing installed digital equipment, without site approval carried out installation of digital MMDS equipment without any clearance from the respondentNo.2 and is using illegally and unlawfully the frequency allocated under the expired license causing loss to the National Exchequer. He further argued that the Petitioner obtained Non-Exclusive license from Respondent No. 3 (PEMRA) for the use of the new digital equipment, but the allocation of frequency for new, license has not been obtained from Respondent No.2 and the frequency allocated to Pay T.V is being used by the petitioner illegally and unlawfully, therefore, Petitioner is not entitled any discretionary relief and prayed that instant petition may graciously be dismissed with exemplary costs in favor of the Respondent No.2. In support of his contention, he placed reliance on the following case law:- (1) 2012 CLC 389 [Sindh] (Danish Kaneria v. Pakistan and others). (2) 2003 CLD 1447 [Karachi] (M.A. Kareem Iqbal v. Presiding Officer, Banking Court No. III and others). 6. Learned counsel for the Respondent No.3 (PEMRA) argued that petitioner was granted an exclusive license for Cable T.V. Network under MMDS on 20.03.1995 by Respondent No.1, but since this MMDS License requires a frequency to be operated, therefore, frequency was assigned to the Petitioner vide letter dated 28.01.1996 by defunct Pakistan Wireless Board, which has been taken over by FAB after promulgation of Pakistan Telecommunication (Reorganization) Act, 1996. According to learned counsel for the Respondent No.3, during currency of the license a petition bearing No.D-971/1995 was filed before this Court on the ground of interference by the Government in exclusive license of the petitioner, in which through interim order dated 22.05.1995 parties were directed to maintain status quo and in the meanwhile, Pakistan Telecommunication Act, 1996 (PTA Act) was promulgated in order to regulate telecommunication services Frequency Allocation Board (FAB) was created. Learned counsel for the Respondent No.3 further argued that in March, 2002 Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (PEMRA Ordinance) was promulgated through which the PEMRA has the exclusive and sole authority to regulate and grant the license to any who wishes to be engaged in the business of broadcasting and distribution services in Pakistan and under the provisions of PEMRA Ordinance PEMRA Rules, 2002, therefore, under Rule 26(2) of PEMRA Rules the broadcasters having MMDS license were required to apply within sixty days for the broadcast license, but the petitioner applied for the same after a delay of about two years, thereafter the authority decided to grant three (3) non-exclusive MMDS License on 20.05.2004. Per learned counsel for the Respondent No.3, both the parties have acknowledged that this license would be operated on frequency allocated by FAB, but inspite of this fact the petitioner did not approach FAB for allocation of frequency for the license issued by PEMRA and continued to
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illegally use the frequency assigned by defunct Wireless Board in respect of previous license and the petitioner never applied to FAB for allocation of frequency. Learned counsel further argued that the primary functions of controlling authority is to discourage monopoly, therefore, the legislature has incorporated Section 23 in the PEMRA Ordinance. Learned counsel for the Respondent No.3 further argued that even if the stance of the petitioner is accepted for the sake of arguments, the license of the petitioner stood expired in May, 2014, therefore, the petitioner is operating its network without a license, which is in violation of Section 19(2) of the PEMRA Ordinance. Learned counsel for the Respondent No.3 also argued that the principles of vested right and promissory Estoppel are wrongly relied on by the petitioner on the ground that the basic ingredients of the above mentioned principles are that the person claiming protection of these principles has to show the unambiguous lawful representation was made and the person has relied upon them has taken steps in accordance with law. Learned counsel further argued that the petitioner is required to abide the terms of the license and in view of the above facts, instant petition may be dismissed in the interest justice. In support of his arguments, he placed reliance on the following case law:- (1) PLD 1962 SC 42 (Abdul Rasheed v. Pakistan). (2) PLD 1969 SC 599 (Nabi Ahmed and another v. Home Secretary and others (3) PLD 1971 SC 252 (Mian Rafiuddin v. Chief Settlement Commissioner and others). (4) 1992 SCMR 2430 (Federation of Pakistan v. Mirza M. Irfan Baig and others). (5) 2013 MLD 601 (Landirenzo Pakisan (Pvt.) Ltd. v. Federation of Pakistan and others). (6) 1998 SCMR 1404 (MY Electronics v. Government of Pakistan and others). (7) (200) 3 ALL. ER 850. 877 (Coated by Lord Woolf MR in R.V. North and East Devon). 7. Learned counsel for the Respondent No.4 (Frequency Allocation Board) argued that Frequency Allocation Board (FAB), has come into existence under Section 42 of the Pakistan Telecommunication (Re-organization) Act, 1996 to take over the functions of the then Wireless Board, who has the exclusive authority to allocate and assign the radio frequency to the providers of telecommunication services and telecommunication systems, radio and television broadcasting operations, public and private wireless operators and others. According to learned counsel for respondent No.4, license for Radio Spectrum was issued to M/s.Pay T.V. not to the petitioner and the same expired in the year 1996 due to non-renewal. He also argued that prayer clauses (i) and (ii) have become infructuous in the year 2010 as license was otherwise stood expired. Learned counsel further argued that licenses issued by both, PTA or PEMRA are similar but allocation of frequency from the FAB is required. Per learned counsel, after the passage of PTA Act, 1996 the petitioner was required to apply for frequency and under Section 21(6), which provides that "Every person deemed to be a licensee under sub-section (5) shall, within three months from the commencement of this Act, supply to the Authority full details of his authorization, licence or permit, as the case may be, and apply for continuance of the licence under this Act.", Whereas, subsection (7) of Section 21 provides that "Where the Authority, on reviewing the authorization, licence or permit referred to in subsection (6), is satisfied that such authorization, licence or permit, as the case may be, had been validly issued under the laws, rules or regulations in force at the commencement of this Act, the Authority shall, within nine months of the date of application made to it, issue an order that the person authorized thereunder, licence or the permit-holder shall be a licensee under this Act till the expiry of the term of the authorization, licence or permit with such modifications thereto as the Authority may consider appropriate". Learned counsel for FAB argued that if it is assumed that the petitioner held a valid 'authorization' for the assignment of frequency under the old regime, it would be assumed to hold a valid assignment of frequency until 12 months after the commencement of date 13.10.1997 but the petitioner did not do so. He further argued that in order to have the license continue, the petitioner was required to apply for 'continuance'…
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