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Petitioner: ARY COMMUNICATION (PVT.) LTD. VS Respondent: FEDERATION OF PAKISTAN through Secretary, Information and Broadcasting, IslamabadHonorable Justice Mushir Alam and Syed Muhammad Farooq ShahAsim Mansoor Khan,Kashif Hanif
P L D 2013 Sindh 168
Before Mushir Alam, C.J. and Syed Muhammad Farooq Shah, J
ARY COMMUNICATION (PVT.) LTD. through Authorized Officer---Petitioner
Versus
FEDERATION OF PAKISTAN through Secretary, Information and Broadcasting, Islamabad and another---Respondents
Constitution Petition No.D-2534 of 2010, decided on 25th October, 2012.
Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---
----Ss. 19, 22, 30-A & 33---Pakistan Electronic Media Regulatory Authority (Appeal and Review) Regulation, 2008, Regln. 14---Constitution of Pakistan, Art.199---Constitutional petition---Broadcasting licence, issuance of---Discrimination---Exercise of discretion by licence granting Authority---Principle---Petitioner applied to Pakistan Electronic Media Regulatory Authority (PEMRA) for licence of landing rights of satellite television channel for transmiting religious and educational knowledge---Grievance of petitioner was that despite deposit of processing fee, the Authority had not issued required licence for the past many years---Validity---Authority in its absolute unfettered discretion, acted arbitrarily and discriminately by issuing licence to entertainment, sports, English and other television channels by ignoring channel of petitioner without any sufficient reasons and cause---Authority in pursuance of powers conferred upon it, had delayed licence to such an extent that petitioner was kept waiting for years without any fault on its part, thus Authority did not act fairly, transparently, judiciously and above any suspicion---Vested right of individual was protected by the Constitution and by fundamental rights guaranteed to citizens---Functionaries like Authority in question, which exercised statutory power were legally and constitutionally bound to discharge their functions strictly in accordance with law, otherwise an action contrary to law would not be sustainable and such Authority would expose itself for discriminatory treatment, which amounted to denial of valuable fundamental rights of people, for whose benefit such Authority had been created---Action of Authority was ultra vires, contrary to the Constitution and law, having no legal sanctity--- High Court directed the Authority to strictly follow principles of 'equity' and 'fairness' for taking decision on application submitted by petitioner for issuance of licence---Constitutional petition was allowed accordingly.
Abid Hussain Shirazi v. Secretary M/O Industries and others 2005 SCMR 1742; Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956; Messrs Arshad and Company v. Capital Development Authority, Islamabad through Chairman 2000 SCMR 1557; Sheraz Ata Ullah Khan (Minor) through his Real Maternal Uncle v. Nazir Ahmad Khan and others 1993 CLC 945; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Abdul Razak Rathore v. The State PLD 1992 Kar. 39; Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Messrs Shadman Cotton Mills Limited, Rawalpindi v. Federation of Pakistan through Secretary, Ministry of Finance, Federal Secretariat, Islamabad and another 2001 CLC 385; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Abdul Baqi and others v. Muhammad Akram and others PLD 2003 SC 163; Syed Kamal Shah v. Government of N.-W.F.P. 2010 SCMR 1377; Dr. Shahid Masood and others v. Federation of Pakistan and others 2010 SCMR 1849; G Sambasiva Rao v. APSRTC (1997) 1 An LT 219 at 230 and Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 ref.
Asim Mansoor Khan for Petitioner.
Kashif Hanif for Respondent No.2.
Date of hearing: 29th August, 2012.
ORDER
SYED MUHAMMAD FAROOQ SHAH, J.---Extraordinary jurisdiction of this Court under Article 199 of the Constitution with regard to breach of fundamental rights has been invoked by the petitioner against the respondents through non-issuance of licence and suspension of broadcasting and transmission of the TV Channel (QTV).
2. Relevant facts as transpired from the captioned petition are that the petitioner applied to PEMRA (respondent No.2) for licence of landing rights of satellite TV channel QTV, which is not a commercial channel and is running to transmit religious and educational knowledge. It is averred that PEMRA sent a letter to the petitioner regarding the application dated 16-9-2005 filed by the petitioner for depositing Rs.105,000 for processing and licence fee, which was deposited in favour of PEMRA but the landing right's licence was not issued in favour of the petitioner. The petitioner again sent a letter to PEMRA along with required documents for issuance of licence of satellite broadcasting station along with cheque dated 21-6-2006 in the sum of Rs.43,50,000 in favour of PEMRA and provided required documents for processing of licence and sent a letter on 17-4-2007 to PEMRA stating that they had applied for uplinking licence for QTV through application dated 31-8-2006 and reference was made to section 22 of the PEMRA Ordinance 2002, wherein an application was to be processed within one hundred days of its receipt. In response the petitioner was informed by PEMRA vide letter dated 10-5-2010 that the case for issuance of satellite TV licence for QTV is under process and the petitioner was requested to apply for short term of uplinking permission for QTV channel as the same was being broadcast without any licence.
3. On 8-6-2010, PEMRA (respondent No.2) sent a show cause notice to the petitioner that QTV was being broadcast illegally without obtaining prior licence from the Authority and the petitioner was directed to immediately stop the illegal operation within 7 days. Petitioner, duly replied to the show cause notice and asked the PEMRA to immediately resume the transmission of QTV channel. It is submitted that the action of respondent No.2 is illegal and contrary to the freedom of trade and expression guaranteed by the Constitution and inordinate delay of almost five years from the date of application is being clearly in violation of section 22 of the PEMRA Ordinance 2002, the respondent interrupted the broadcast of the channel in the holy month of Ramzan without appreciating the fact that QTV is a Television Channel provides for Islamic and Quranic learning and has immense viewership due to the religious significance of the holy month of Ramzan. The following prayer has been made by the petitioner:--
"(i) declare that the interruption of broadcast of QTV at Iftar time on 25-8-2010 is illegal and without due process of law;
(ii) direct the respondent No.2 to restore the broadcast of QTV interrupted at Iftar time on 25-8-2010 at the same frequency upon which it was interrupted;
(iii) grant permanent injunction against the respondent No.2 from interrupting the broadcast of QTV in future without due process of law;
(iv) direct the respondent authority to issue license to the petitioner in accordance with law;
(v) grant interim relief by directing the respondent No.2 to restore the broadcast of QTV interrupted at Iftar time on 25-8-2010 at the same frequency upon which it was interrupted during the pendency of the petition;
(vi) grant costs of the petition;
(vii) any other relief which this Hon'ble Court may deem fit and proper in consideration of the facts and circumstances of the case.
4. Respondent No.2 (PEMRA) filed para-wise comments by raising preliminary objections regarding non-maintainability of the Petition within the meaning of Article 199 of the Constitution of Pakistan, however, admitted that petitioner was running QTV channel without a licence from the Authority in violation of section 19(2) of PEMRA Ordinance 2002, that constitutes an offence under section 33 of the Ordinance. Moreover, the petitioner did not exhaust the remedy of filing an appeal as provided under PEMRA (Appeal and Review Regulation 2008). In reply to other submissions narrated in the petition, it is stated that under rule 14 of S.R.O. 1120(I)/2009 dated Islamabad, the 12th December, 2009, no foreign channel shall be distributed unless landing rights permission of such channel has been obtained from the authority. However, PEMRA Ordinance 2002 Constitute it a cognizable offence and Cable TV Operators are obliged to relay only those TV channels to whom licence are issued by the Authority. Rule 14 of aforementioned Notification has been reproduced which reads as under:--
"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."
5. It is further stated by the respondent No.2 that illegal activity by the petitioner in violation of section 19(2) of PEMRA Ordinance 2002 constitutes a cognizable offence under section 33 of PEMRA Ordinance 2002 and that the Authority reserves its right to take legal action against the petitioner in this regard. The petitioner was duly served with a show cause notice whereby he has been directed to stop illegal activity. It is submitted that if the petitioner feels aggrieved by any order of the Authority, he has an alternate, efficacious remedy by way of filing of appeal under section 30A of PEMRA Ordinance 2002. In reply to legal grounds raised by the petitioner, it is stated by the respondent No.2 (PEMRA) that broadcasting of QTV is an illegal act, therefore, no question of interrupting the broadcast arises, as answering respondent is only performing its duty under the law, directed the cable TV operators to air only licensed TV channels as provided under the PEMRA laws. It is reiterated that under section 19(2) of PEMRA Ordinance 2002 no person shall engage in any broadcast media or distribution service except after obtaining the licence issued under this Ordinance. PEMRA clarified that they have transmitted a number of proposals to the Ministry of Information and broadcasting and have also been in close liaison with Ministry of Religious Affairs to sort out this impending issue and Ministry of Religious Affairs has forwarded some recommendations with regard to the licensing of religious channels to be made part of the code of conduct and status of application of religious channels pending with the Authority as under:--
(i) QTV (Messrs ARY Communication (Pvt) Limited, Karachi). The channel is being up-linked from Dubai. Some of its program are also being up-linked from Pakistan illegally. Messrs ARY Communication (Pvt.) Limited had applied for reasons of QTV in September 2006 by depositing Rs.3.0 Million Plus Rs.200,000 as requisite processing fee. But, PEMRA has been unable to issue license due to non-availability of the Government policy regarding religious channels.
6. Learned counsel for the petitioner argued that the respondent Authority under the garb of the order dated 20-10-2011 of this Court raised demands from the petitioner to seek temporary up-linking permission on monthly basis despite the fact that the petitioner have already paid Rs.2.9 million which were deposited with the respondent Authority since 2006 but the respondent Authority has failed to decide the application for issuance of licence to the petitioner for broadcasting religious channel namely QTV. It is contended that petitioner's case is pending for the last five years and the respondent Authority applied delay tactics after they allowed the petitioner's demand for obtaining temporary up-linking permission on monthly basis, thereby causing harassment and undue pressure upon the petitioner. It is next contended that notice dated 4-1-2012, served upon the petitioner smacks after-thought and is no more than a belated attempt to harass the petitioner by the respondent Authority as they have acted in violation of law and did not comply with the requirements of section 22 of the PEMRA Ordinance, whereby they were required to decide the application of the petitioner for issuance of license within 100 days, and non-availability of Government Policy for religious Channels, does not relieve the respondent No.2 from compliance of section 22 of the PEMRA Ordinance 2002, the claim through the notice dated 4-1-2012 is thus, colourful exercise of power and authority, not sustainable in law. Learned counsel for the petitioner, during arguments, laid considerable stress on the point that it was mandatory for the respondent No.2 to decide fate of the application, filed by the petitioner for issuance of license for the establishment and operation of QTV within one hundred days from the receipt of the application which has not been decided by the Authority within a period of more than five years.
7. Show cause notice dated 17-2-2012 issued by PEMRA required the petitioner to deposit US $ 570,750 on account of temporary up linking permission fee, however, the said fee has not been deposited within time, therefore, the petitioner was directed to pay the same within 7 days of the issuance of notice, else necessary action which includes suspension of QTV Channel will be taken. It appears that the petitioner has not deposited the aforementioned license fee with reasons that the said notice is belated attempt to harass the petitioner by the respondent, who acted in violation of law and have not complied with the requirement of section 22 of the PEMRA Ordinance, whereby they were required to decide the application of petitioner for issuance of license within 100 days. Learned Counsel for the petitioner Mr. Asim Mansoor Khan contended that on one side the PEMRA is reluctant to issue license to a religious channel/petitioner and on the other side PEMRA is illegally allowing other channels to broadcast, causing huge loss to the national exchequer. PEMRA is also illegally allowing the broadcast of 56 Indian Entertainment Channels, which facts have not been denied by the Chairman PEMRA and such gross irregularity and illegality has not been checked by the Regulatory Authority.
8. We have considered the arguments advanced by both sides and perused the material available on the record including PEMRA Laws in it's perspective.
9. Learned counsel for the respondent No.2 argued that according to section 19 of the PEMRA Ordinance, no person can engage in any broadcast media or distribution service except after obtaining the licence issued under the said Ordinance and the PEMRA was given the exclusive right to issue licence for establishment and operation of all broadcast media and distribution service, as per section 27 thereof, it is only the PEMRA and they also draw order in writing, giving reasons to prohibit any broadcast or transmission of any program or new item. In PEMRA U.O. No.1(01)EM/PEMRA/2010 dated, August 26th 2010, the Chairman has also given a reason of non-issuing of license to the aforementioned channel that security agencies have also raised serious concern on licensing of religious channels. From contention raised by the learned Counsel for the respondent, it appears that Constitution Petitions bearing Nos.46 and 47 of 2010 were filed earlier before the Hon'ble Supreme Court of Pakistan in its original jurisdiction (commonly known as Geo and ARY cases) and during the proceedings the Hon'ble Supreme Court was pleased to pass an order dated 13-8-2010, wherein the Hon'ble Supreme Court reiterated and enshrined that under section 19(2) of the PEMRA Ordinance, 2002 no person can engage in any broadcast media or distribution services except after obtaining a license issued under said ordinance and in this respect the PEMRA is given the exclusive right to issue license for the establishment and operation of all broadcast media and distribution services. A perusal of the record transpires that the petitioner has filed an application for issuance of license for establishment, operation and distribution services of the said channel to the Authority (PEMRA) and in response the Authority served him with a show case notice on 8-6-2010, wherein it is stated that broadcasting of "QTV", TV channel from Pakistan is illegal, in violation of PEMRA laws and without obtaining prior permission from the Authority was found in operation service, the petitioner was directed to stop the illegal operations and show cause within 7 days as to why appropriate legal action should not be taken against them which may include criminal prosecution and confiscation of equipment. For the sake of convenience show cause notice is reproduced as under:--
"PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY ISLAMABAD
F.No.7(258)/Legal 2009 Dated: 8-6-2010
Chief Executive Officer QTV ARY Communication Pvt. Ltd. 6th Floor, Madina City Mall, Abdullah Haroon Raod, Saddar, Karachi Ph: 021-2564724, 1259, 5496 Fax: 021-2578060, 7899.
Subject: Show Cause Notice
It has been noticed that you are broadcasting "QTV" TV channel from Pakistan illegally in violation of PEMRA laws, pertinently, under section 19(2) of the PEMRA Ordinance 2002 a person cannot engage in broadcast media or distribution service without obtaining prior license from the Authority. An operation without obtaining prior permission from the Authority is defined as illegal operation under section 2(ka) of the PEMRA Ordinance 2002. The said provisions are reproduced below for ready reference.
19. Licence to broadcast or operate:-
(2) No person shall engage in any broadcast media or distribution service except after obtaining a licence issued under this Ordinance.
(3)(ka) "illegal operation" means the broadcast or transmission or distribution of or provision of access to, programmes or advertisements in the form of channels without having a valid licence from the Authority.
Therefore, you are hereby directed to immediately stop your illegal operations and show cause immediately but not later than seven days as to why appropriate legal action should not be taken against you that may include criminal prosecution and confiscation of your equipment. In the event no response is received from you within given time, the matter shall be decided in your absence.
This issues with the approval of the competent authority".
10. From the overall picture, which emerges out from the material brought on the record, it has been proved that on receipt of the application along with applicable licence fee and security deposited by the petitioner, the respondent No.2 neither issued licence with certain terms and conditions nor refused to grant a licence for reasons to be recorded in writing within prescribed period of one hundred days, in transparent manner as the Authority shall have to exercise its exclusive right in conformity with the principles of fairness and equity applied to all potential applicants for licence whose eligibility shall have vested on principle criteria notified in advance and that this shall be done through an open bidding process. Section 19(1) of PEMRA Ordinance 2002 and Rule 11 of PEMRA Rules 2002, and Regulations made thereunder prescribed the condition and the criteria for issuance of licence under terms and conditions. It would be advantageous to reproduce the mentioned provisions of PEMRA Ordinance and rules and regulations made thereunder as follows:--
Pakistan Electronics Media Regulatory Authority Order 2002 as amended by the PEMRA (AMENDMENT) Act, 2007 (Act No.II of 2007)
"19. License to broadcast or operate:---(1) The Authority shall have exclusive right to issue licences for the establishment and operation of all broadcast media and distribution services, provided that this exclusive right shall be used by the Authority in conformity with the principles of fairness and equity applied to all potential applicants for licences whose eligibility shall be based on prescribed criteria notified in advance and that this shall be done through an open, transparent bidding process:
Provided that the bidding shall be held if the number of applications exceeds the number of licences to be issued by the Authority"
(PEMRA) Rules 2002.
"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 license to the applicant(s) concerned.
(2) In addition to General Terms and Conditions contained in the Schedule, the Authority may impose on the licencee 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."
11. From a careful perusal of the aforementioned provisions it appears that the required eligibility criteria for issuance of licence as provided under Ordinance 2002, its rules and regulations have not been followed by respondent No.2 in letter and spirit. The Authority did not decide the application filed by the petitioner for issuance of licence for about (5) years, contrary to section 22 of PEMRA Ordinance, read with rules and regulations made thereunder, which provides decision on application within one hundred days. Section 19(1) as mentioned supra stipulates the exclusive right of the Authority to issue licence in conformity with the principles of fairness and equity applied to all potential applicants for licence whose eligibility shall be based on criteria notified in advance. Perusal of the record reveals that the discretion has been exercised by the Authority discriminately by issuing licence to as many as 87 channels including entertainment and other channels as pointed out by the learned Counsel for the petitioner, which is gross violation of golden principles enshrined by the Constitution of Pakistan 1973, which provides that all citizen are equal before law and are entitled to equal protection of law, be treated alike. In ABID HUSSAIN SHIRAZI v. SECRETARY M/O INDUSTRIES AND OTHERS (2005 SCMR 1742) the apex Court held that there should be no denial of any special privilege by reason of birth, creed, or the like also equal subjection to all individuals and classes to the ordinary law of the land. Doctrine of equality as contained in Article 25 of the Constitution of Pakistan 1973 has enshrined golden rules of Islam, which mandate that every citizen, no matter howhighersoever he was, must be accorded equal treatment with similar situated person, which meant that similar situated people should be treated equally. In the case reported as DR. TARIQ NAWAZ AND ANOTHER v. GOVERNMENT OF PAKISTAN THROUGH THE SECRETARY, MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN, ISLAMABAD AND ANOTHER (2000 SCMR 1956) their lordships have been pleased to hold that equity is to be between the person who are placed in the same set of circumstances. In MESSRS ARSHAD AND COMPANY v. CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD THROUGH CHAIRMAN (2000 SCMR 1557), it was held that discretion becomes an act of discrimination only when it is improbable or capricious exercise in abuse of discretionary authority.
12. It is settled principle of law that equality should be administered in its true perspective in light of the Constitution of Pakistan. In plethora of superior Courts' judgments, it is held that persons equally placed must be treated alike in the matter of privileges, in the rule of equal protection of law, public functionaries are expected to exercise jurisdiction honestly, fairly, reasonably and within the sphere of authority. Reliance in the regard made conveniently be placed on the cases reported as SHERAZ ATA ULLAH KHAN (MINOR) THROUGH HIS REAL MATERNAL UNCLE v. NAZIR AHMAD KHAN AND OTHERS (1993 CLC 945), CHAUDHRY SHUJAT HUSSAIN v. THE STATE (1995 SCMR 1249), ABDUL RAZAK RATHORE THE STATE (PLD 1992 Karachi 39), MESSRS ARMY WELFARE SUGAR MILLS LTD. AND OTHERS v. FEDERATION OF PAKISTAN AND OTHERS (1992 SCMR 1652), MESSRS GADOON…
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