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Official Citation: 2024 SHC 1184
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-10-21
Parties: Shamal Media Service (Pvt.) Ltd vs Federation of Pakistan & another
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-10-21, officially reported as 2024 SHC 1184. In this matter between Shamal Media Service (Pvt.) Ltd and Federation of Pakistan & another, 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 2024SHC1184
Court Name: Sindh High Court Judge(s): Jawad Akbar Sarwana, Muhammad Shafi Siddiqui, CJ Title: Shamal Media Service (Pvt.) Ltd vs Federation of Pakistan & another Case No.: C.P.No.D-1151/2020 Date of Judgment:2024-10-21 Reported As: 2024 SHC 1184 Result: Petition Dismissed
JUDGMENT
JUDGMENT Muhammad Shafi Siddiqui, CJ.- The petitioners are companies incorporated under the laws of Pakistan and for the purposes of current issues could be divided into two sets. Set `1' includes the companies which own and operate as Radio Broadcaster whereas set `2' own and operate as Television Broadcasters. To make them operate for different region and on different FM Bandwidth various licenses were issued/granted to the petitioners. For Radio Broadcast Stations the period of the licenses was 10 years whereas for that of Satellite Television Channels the same was for 15 years. The particulars of these licenses are as under:- Set - 1 Radio Licenses
S.No. C.P. No. Area/Region Date of issuance Date of expiry 1. D-1151/2020 Karachi Lahore Sukkur Islamabad Peshawar18.10.2002 18.10.2002 18.10.2002 21.02.2003 16.07.200718.10.2012 18.10.2012 18.10.2012 21.02.2013 16.07.2017 2. D-1152/2020 Hyderabad Nawabshah Karachi Quetta Larkana27.01.2004 27.01.2004 12.09.2005 12.09.2005 12.09.200527.01.2014 27.01.2014 12.09.2015 12.09.2015 12.09.2015
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3. D-1221/2020 Karachi 03.05.2003 03.05.2013 4. D-1903/2020 Faisalabad Islamabad Lahore Karachi22.02.2003 22.02.2003 22.02.2003 22.02.200322.02.2013 22.02.2013 22.02.2013 22.02.2013 5. D-1904/2020 Gawadar Islamabad Karachi Lahore18.10.2002 18.10.2002 22.05.2004 22.05.200418.10.2012 18.10.2012 22.05.2014 22.05.2014 6. D-5900/2020 Gujrat Shekhupura Gujranwala Khanpur Sadiqabad18.10.2002 27.01.2004 27.01.2004 15.03.2005 15.03.200518.10.2012 27.01.2014 27.01.2014 15.03.2015 15.03.2015
Set - 2 Television License
S.No.C.P. No. Name of TV Channel/Licensee Date of issuance Date of expiry 1. D-1905/2020 M/s JAAG Broadcasting Systems Private Limited (JAAG TV)09.08.2007 09.08.2022 2. D-1981/2020 M/s Recorder Television Network Pvt. Ltd. (AAJ TV)23.01.2008 23.01.2023 3. D-2040/2020 M/s Apna TV Channel Pvt. Ltd.: 1. Apna Channel, 2. Apna News 3. Tarka Et 4. KOOK TV
22.05.2008 29.08.2007 06.10.2010 22.05.2008
22.05.2023 29.08.2022 22.05.2025 22.05.2023 4. D-2061/2020 M/s Vision Network Television Ltd.30.10.2004 30.10.2019 5. D-2062/2020 M/s Aurora Broadcasting Services (Pvt.) Limited (Herald News)29.06.2009 29.06.2024 6. D-2063/2020 ARY Communication (Pvt.) Ltd. : 1. ARY Digital 2. ARY One World 3. Shopping Channel
13.04.2004 13.04.2004 01.07.2008
13.04.2019 13.04.2019 01.07.2023 7. D-2064/2020 M/s Independent Media Pvt. Ltd.: 1. GEO News 2. GEO Entertainment 3. GEO English 4. AAG 5. GEO Super
22.05.2008 22.05.2008 25.06.2008 22.05.2008 08.06.2011
22.05.2023 22.05.2023 25.06.2023 22.05.2023 08.06.2026 8. D-2065/2020 M/s Eye Television Network Pvt. Ltd.: 1. Food Channel 2. Channel station
24.04.2007 23.06.2007
24.04.2022 23.06.2022
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3. Only Youth Ent. 4. Style 36012.11.2009 12.11.200912.11.2024 12.11.2024 9. D-2066/2020 M/s Fun Infotainment Pvt. Ltd. (FUN TV)23.01.2009 23.01.2024 10. D-2067/2020 M/s Kashish Television Network Pvt. Ltd.: 1. KTN 2. KTN News 3. Kashish
23.01.2008 29.08.2007 23.01.2008
23.01.2023 29.08.2022 23.01.2023 11. D-2068/2020 M/s Dolphin Pvt. Ltd: 1. Sindh TV News 2. Sindh TV 29.08.2007 07.09.2010 29.08.2022 07.09.2025 12. D-2069/2020 M/s National Communication Service Pvt. Ltd23.06.2007 23.06.2022 13. D- 409/2022 In this petition 9 petitioners have been issued the respective licenses15.08.2007 29.08.2007 15.08.2007 17.11.2011 23.05.2013 18.10.2006 23.06.2007 28.05.2009 28.07.2011 07.09.2007 23.01.2008 30.06.2009 27.05.2010 08.05.200915.08.2022 29.08.2022 15.08.2022 17.11.2026 23.05.2028 18.10.2021 23.06.2022 28.05.2024 28.07.2026 07.09.2022 23.01.2023 30.06.2024 27.05.2025 08.05.2024 14. D-410/2022 In this petition 9 petitioners have been issued the respective licenses03.11.2004 23.01.2005 04.06.2013 23.02.2004 29.08.2007 12.06.2013 22.05.2008 14.01.2009 01.07.2008 23.01.200803.11.2019 23.01.2020 04.06.2028 23.02.2019 29.08.2022 12.06.2028 22.05.2023 14.01.2024 01.07.2023 23.01.2023
2. The commonness amongst the two sets of petitions is: (i) a challenge to Rule 17 of Pakistan Electronic Media Regulatory Authority Rules 2009 (2009 Rules) as being ultra vires to the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (Ordinance 2002) and thus notices impugned claimed to be without jurisdiction, illegal and of no legal effect; (ii) a challenge to the Regulation 11 of Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations) Regulations 2012 (2012 Regulations [Radio]) as being ultra vires to
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PEMRA Ordinance 2002 and notices impugned claimed to be without jurisdiction, illegal and of no legal effect; and (iii) a challenge to the Regulation 12 of Pakistan Electronic Media Regulatory Authority (Television Broadcast Station Operations) Regulations 2012 (2012 Regulations [Television]) as being ultra vires to PEMRA Ordinance 2002 and also claimed to be without jurisdiction, illegal and of no legal effect. 3. The challenge is also thrown to both 2012 Regulations i.e. Pakistan Electronic Media Regulatory Authority (Radio/Television Broadcast Station Operations) "Regulations 2012" and actions thereunder claimed to be without jurisdiction and illegal and does not germane to PEMRA Ordinance 2002. The petitioners have also challenged the impugned notices issued in pursuance of the aforesaid Rules & Regulations. The first set of petitions challenges the notices of 12.12.2019 wherein, while considering the applications of the petitioners for the renewal of commercial FM Radio Licenses, certain documents, enlisted therein along with process fee, were required/asked for by PEMRA. These impugned notices appear to have been issued on petitioners applications for renewal of the licenses. The other notices dated 23.10.2019/03.03.2020 in other set of the petitions received by those entities who owned the television channels whereby the audited financial statements in respect of the petitioners companies accounts for all the financial years from award of license till 30.06.2019 were required with details of annual gross revenue earned from advertisement by all the licensed channels of the company required in terms of Rule 17 of 2009 Rules and Regulation 12 of 2012 Regulations (Television). 5. Notices were also issued under Order 27-A CPC on 17.08.2020 as an abundant caution since the vires of Rules and Regulations were challenged. The spirit of Order 27-A CPC however is only to the extent when substantial question as to interpretation of constitutional law is involved, the Court may not proceed to determine that question unless notice under Order 27-A CPC has been given to the Attorney General in case if the question of law concerns the Federation and the Advocate General of the province if the question of law concerns with a province, which situation does not exist here. 6. We have heard Mr. Saad Fayyaz, learned counsel appearing for petitioners and Mr. Kashif Hanif, appearing for PEMRA and Mr. Khaleeq Ahmed, learned Deputy Attorney General who appeared on behalf of learned Attorney General, and perused material available on record. Since the issue in hand is common in all the petitions, for references to the documents we have taken the petitions bearing No.1151 and 1905 of 2020 as leading cases from both sets. 7. After hearing the petitioners counsel at length, the detailed arguments of learned counsel for the petitioners posed following propositions, which include the additional grounds taken in the application bearing CMA No.20430/2024 (under Order VI Rule 17 CPC). The arguments however do not lay emphasis on waiver/acquiescence based on past practices. The propositions are summarized as under:-
That Rule 17 of 2009 Rules, Regulation 11 of 2012 Regulations (Radio) and Regulation 12 of 2012 Regulations (Television) do not find any such requirements as none of the provisions of PEMRA laws could have empowered PEMRA to call for audited financial statements; Rules and Regulations are beyond the frame of preamble and the Ordinance 2002; 2009 Rules were enacted by PEMRA without approval of the Federal Government; Section 39(1) of Ordinance 2002 provides that the PEMRA may, with the approval of the Government, by notification in the official Gazette, make rules to carry out the purposes of the Ordinance. The 2009 Rules were not enacted with the approval of the Government and the Regulations for the same subject cannot takeover mandate of the Rules as it would then render the scheme as envisaged for the Rules, redundant;
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That from 13.05.2011 to 15.01.2023 PEMRA had no Chairman and since the PEMRA enacted the Regulations on 31.01.2012 the absence of the Chairman would render the two Regulations as invalid subordinate legislation like the PEMRA (Content) Regulations, 2012 which were invalidated by Supreme Court in Hamid Mir's case[1]. The ratification claimed in PEMRA's 117th meeting on 05.09.2016 is illegal and unconstitutional; besides it is not signed by the Chairman/members by providing independent reasoning, which is mandatory; The two Regulations under dispute cannot be saved in the light of Competition Commission Act, 2010 as the two Regulations claimed to have been taken over the role as envisaged in the Competition Commission Act, 2010; The impugned notices to the Television and Radio Broadcasters whereby retrospective effect was given are violative of Article 4(c) of Constitution of Islamic Republic of Pakistan, 1973; That an application seeking exemption in annual radio license renewal fee and reduction of renewal license fee under sections 32, of Ordinance 2002 ought to have been decided first before the impugned notices could have been issued and/or acted upon; 8. Two kinds of licenses were issued to the petitioners during the preceding year. For most of them when the licenses were issued, 2002 Rules were in vogue whereas the renewal was applied and responded when almost 2009 Rules took over the regime w.e.f. 12.12.2009 whereas the two Regulations that concern with Television and Radio Broadcast Stations operation took over the regime on 31.01.2012. However, the Rules and Regulations replacing earlier ones are not significantly different which could said to have snatched any valuable right of the petitioners. 9. The approval of the 2002 Rules was never challenged on the touchstone that the federal government's approval was not obtained. Likewise the same was not opposed as being one in exercise of power under section 39 of Ordinance 2002. Approval for framing of rules includes reframing of rules as well. Earlier approval (not challenged) enabled the Authority under section 39 to reframe its Rules on 12.12.2009. It is nothing but resurrection of the earlier 2002 Rules which carried the same mandate. 10. When the petitioners came into being to operate as PEMRA's Licensee, Ordinance 2002 was in vogue and Section 19 empowered the Authority to have exclusive right to issue licenses which right is to be exercised in conformity with the principles of fairness and equity to all potential applicants for licenses. 11. The eligibility was based on prescribed criteria notified. Subsection (3) of Section 19 provides that every license shall be subject to such terms and conditions as may be prescribed. Its subsection (4) provides that the Authority shall have the power to determine number of licenses to be issued in each category or sub-category and charge fees at such rates as the Authority may fix from time to time for the grant of a license and for its annual renewal. Section 23 provides that no person shall be entitled to the benefit of any monopoly or exclusivity in the matter of broadcasting or the establishment and operation of broadcast media or distribution service or in the supply to or purchase from, a national broadcaster of air time, programmes or advertising material and all such existing agreements and contracts to the extent of conferring a monopoly or containing an exclusivity clause are, to the extent of exclusivity, shall be declared to be inoperative and of no legal effect. Section 25 provides that license shall not be granted to a person who is not a citizen of Pakistan or resident in Pakistan, a foreign company organized under the laws of any foreign government, a company, the majority of whose shares are owned or controlled by foreign nationals or companies and whose management or control is vested in foreign nationals or companies and any person funded or sponsored by a foreign government or organization. Section 29 empowers the Authority to authorize inspections, essentially for such scrutiny but not limited to it.
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12. Neither Rules of 2002 nor that of 2009 and/or Regulations transgress any provision of PEMRA Ordinance 2002. A comparative statement of the two Rules i.e. 2002 and 2009 Rules with para materia analysis of the respective rules is reproduced for the sake of brevity:
PARI MATERIA/COMPARATIVE STATEMENT OF RULES 2002 AND RULES 2009
PAKISTAN ELECTRONIC MEDIA PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY RULES 2002REGULATORY AUTHORITY RULES 2009 RULES 2002) (RULES 2009) Issuance/grant of license 11. Issuance of licence.- (1) The Authority shall process each application and on being satisfied that the applicant(s) fulfills the conditions and the criteria and procedure as provided for in section 19 of the Ordinance, may, on receipt of the applicable licence fee, as determined through the bidding process, and the prescribed security deposit, issue licence to the applicant(s) concerned. (2) In addition to General Terms and Conditions contained in the Schedule, the Authority may impose on the licensee such other terms and conditions as appear to it necessary; (3) The Authority will consult the Government of the Province, with regard to proposed location of the broadcast station and the possible area of coverage, through the Chief Secretary of the Province or an officer so authorized by him. (4) The Authority, if satisfied that the issue of the licence to a particular person is not in the public interest, may, for reasons to be recorded in writing and after giving the applicant an opportunity of being heard, refuse to grant a licence. (5) The Authority shall take decision on the application for a licence within one hundred days from receipt of the application; (6) The Authority shall make regulations setting the procedures for an open and transparent bidding process in such cases where the number of the applicants is likely to exceed the number of licences which the Authority has fixed for that category of licence.9. Grant of licence.- (1) The Authority shall, if it is satisfied that the applicant fulfils the criteria as provided for in the Ordinance, these rules and regulations made thereunder and has paid the prescribed fee and other charges, if any, grant licence to the applicant. (2) Every licensee shall follow the general terms and conditions as set out in Schedule-C. (3) The Authority shall, except where the application for grant of licence relates to Islamabad Capital Territory, invite the comments of the Provincial Governments concerned, as provided for in section 21 of the Ordinance. (4) The Authority, if satisfied that the grant of the licence to a particular person is not in the public interest, may, for reasons to be recorded in writing and after giving the applicant an opportunity of being heard, refuse to grant a licence. (5) The Authority shall, within one hundred days from the date of its receipt, take decision on the application for grant of a licence subject to clearance from the Ministry of Interior and frequency allocation by FAB in relevant cases. (6) The Authority shall prescribe procedures for an open and transparent bidding in such cases where number of the applicants is likely to exceed the number of licences which the Authority has fixed for that category or sub- category. Extension/renewal/expiry of license 16. Extension of the licence term.- (1) The licensee may, at least six months before the12. Renewal of licence on expiry of the licence term.- (1) A licensee may, at least six months
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expiry of the original term, referred to in rule 7 sub-rule (1), apply to the Authority, for the extension of the licence for such term, and the Authority shall extend the licence subject to: i. satisfactory past performance of the licensee. The Authority may seek opinion in this regard from Council of Complaints; ii. payment of the extension fee as determined by the Authority at that time; iii. all other terms and conditions as prescribed in the rules and including any new terms and conditions which the Authority may deem fit to impose having regard to all relevant factors including without limitation, changes in technology and prevalent market conditions. (2) The Authority may decide not to extend a licence beyond the expiry date of the on-going term; provided that the Authority shall convey such decision to the licensee, not later than the one-fourth of the on-going term, before the expiry of the term.prior to the expiry of the licence, apply to the Authority for renewal of its licence and the Authority may renew the licence subject to- (a) satisfactory past performance of the licensee; (b) the opinion of the concerned Council if the Authority so requires; (c) payment of the prescribed fee prevalent at the time of renewal and payment of outstanding dues, if any; and (d) fulfillment of any other terms and conditions as prescribed, or varied in the public interest, by the Authority from time to time. (2) In case of refusal to renew a licence the Authority shall record reasons in writing. (3) The Authority may renew a licence for such term as the original term of the licence beginning from the date of expiry of the licence. Proscription of foreign broadcasting service 19. Proscription of a foreign broadcasting service.- (1) If the Authority, on having brought to its notice, considers that the content of any foreign broadcasting service is unacceptable, it shall order proscription of that service; (2) The Authority shall not consider a foreign broadcasting service to be unacceptable, for the purpose, unless it is satisfied that the content of that service included any matter which prejudices the security and sovereignty of Pakistan, the public interest or order or national harmony or is against good taste or decency or morality.14. Proscription of a foreign broadcasting service.- No foreign channel shall be distributed unless landing rights permission for such channel has been obtained from the Authority: Provided that a distribution service operator shall relay only TV channels licensed by the Authority Program contents 24. Programming content.- (1) The contents of the programmes and advertisements broadcast or distributed by the broadcast or cable TV network stations shall conform to the provisions of section 20 of the Ordinance and the Code of Conduct set out in the Schedule; (2) Programmes shall conform to the provisions of the Motion Pictures Ordinance, 1979 (XLIII of 1979), and the rules and Code of Conduct framed hereunder; (3) The advertisements shall conform to the TV15.Programms and advertisement content.- (1) The contents of the programmes and advertisements which are broadcast or distributed by the broadcast media or distribution service operator, shall conform to the provisions of section 20 of the Ordinance, these rules, the code set out in the Schedule-A and terms and conditions of the licence. (2) The programmes shall also conform to the provisions of the Motion Pictures Ordinance, 1979 (XLIII of 1979), the rules and code of conduct made thereunder, whereas the
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Code of Advertising Standards and Practices in Pakistan. (4) The duration of the advertising break shall not be more than three minutes continuously and there must be at least a fifteen-minute regular programme duration between successive advertisement breaks; (5) The licensee shall maintain a record and register of the programmes being broadcast by him and shall preserve the programmes aired or distributed, on audio or as the case may be on the video tapes at least for a period not less than thirty days. (6) The Authority may issue regulations regarding minimum Pakistani content in the programmes and channel mix, to be broadcast or distributed by a licensee. (7) The Authority may, by regulations, specify as eligible channels, which it considers suitable for broadcasting or distribution. (8) The cable TV operation licensee shall include the national TV broadcast channels, in his respective bouquet, amongst the first five of the serial order of the distributed channels.advertisements shall also conform to the TV Code of Advertising Standards and Practices in Pakistan and Advertisement Code issued by the Authority. (3) During a regular programme a continuous break for advertising shall not exceed three minutes and duration between two such successive breaks shall not be less than fifteen minutes. (4) The licensee shall maintain a record and register of the programmes being broadcast or distributed by him and shall, for a period of not less than forty-five days, preserve such programmes. Mergers and transfers 27. Mergers and transfers.- (1) A licensee shall not merge or amalgamate with any other person without the prior approval of the Authority. (2) A person who is the shareholder of, or owns an interest in, a company which is a licensee, shall not transfer or dispose of his shares or the interest, without the prior approval of the Authority, Provided that in the case of a listed company, the shares, representing not more than two percent of the issued and paid up share capital, may be transferred without such approval.16. Mergers and transfers.- (1) Without prior approval of the Authority, a licensee shall not transfer, merge or amalgamate with any other person any rights conferred under the licence. (2) Without prior approval of the Authority, any person shall not transfer or dispose of his shares or interest which he is holding or owning in a company which is a licensee: Provided that in the case of a listed company, the shares, representing not more than two per cent of the issued and paid up share capital, may be transferred without such approval. Maintenance of accounts 28. Maintenance of accounts.-The licensee shall maintain proper accounts, as required by the applicable laws, and shall cause to be carried out the audit of his accounts by one or more auditors who are chartered accountants within the meaning of Charted accountants Ordinance, 1961 (X of17. Maintenance of accounts.- The licensee shall maintain proper accounts, as required by the applicable laws, and shall cause to be carried out the audit of his accounts by one or more auditors who are chartered accountants within the meaning of the Chartered Accountants Ordinance, 1961 (X of 1961) and
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1961) and shall submit the audited financial statement to the Authority not later than three months after the closing date of its financial year.shall submit the audited financial statement to the Authority not later than three months of the closing date of its financial year.
13. The petitioners in the first set of petitions were issued licenses somewhere in between October 2002 to July 2007 which disclose its duration in the last column where expiry date is shown, and when the license period came to an end 2009 Rules were in vogue which Rules came into being on 12.12.2009. In the second set of petitions which is meant for Television Licenses, the licenses shown to have been issued both when 2002 and 2009 Rules were in vogue and also Regulations 2012, as some of the licenses were issued beyond 2012. 14. Apart from above legislative frame, the license term 15.6 provides that the licensee shall supply to the authority copy of its annual return as filed with the Securities Et Exchange Commission of Pakistan under Companies Ordinance and a copy of its annual report and accounts, as soon as possible after they are circulated to the shareholders of the relevant body corporate. The license term provides that where the licensee has not incorporated any returns, reports, accounts or other information which is, in the opinion of the Authority is analogous or equivalent to the above, the Authority may ask for such at such time and in such forms as the Authority may from time to time specify. It further calls for the statements of annual gross revenue in respect of each/entire accounting period in such form as the Authority may require. The licensee is further required to provide details of whatever form or within such period as the Authority may reasonably…
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