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Official Citation: 2024 YLR 929
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Pakistan Telecommunication Authority through Chairman vs Pakistan JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-12-31, officially reported as 2024 YLR 929. In this matter between Pakistan Telecommunication Authority through Chairman and Pakistan 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 2024 YLR 929
Court Name: Islamabad High Court Judge(s): Aamer Farooq (C.J) Title:Pakistan Telecommunication Authority through Chairman vs Pakistan
JUDGMENT
Reported As: 2024 YLR 929 Result: Petition dismissed Judgment JUDGMENT AAMER FAROOQ, C.J. Messrs Nayatel (Pvt.) Limited (Respondent No.2) made a request to Pakistan Telecommunication Authority (the Petitioner) for providing information regarding minutes of meeting with respect to grant of Telecommunication Infrastructure Providers License No.TIP-006- 2014, dated 11.02.2014 to Special Communication Organization (SCO) and also minutes of the meeting of the Petitioner wherein final decision was taken to grant commencement of above referred Telecommunication Infrastructure License to SCO on 28.03.2019. The request was not acceded to, hence appeal was preferred by Respondent No.2 before Respondent No.1 wherein the Petitioner entered appear appearance and contested the appeal on legal and factual aspects. The appeal was accepted vide order dated 16.08.2022 and Petitioner was directed to provide information as sought by Respondent No.2.The instant petition calls in question the referred appellate decision of Respondent No.1 which, for convenience, shall henceforth be referred to as the impugned order. 2. Learned counsel for the Petitioner submitted inter alia that Petitioner is a statutory body and acts as a regulator for telecommunication companies and allied industry. It was submitted that an application was filed under section 11 of the Right of Access to Information Act, 2017 (the Act), which only allows a citizen to file application and seek the requisite information. It was submitted that since Respondent No.2 is a corporate entity, it cannot and does not fall within the definition of a citizen. It was submitted that likewise under Article 19A of the Constitution of the Islamic Republic of Pakistan, 1973, (the Constitution), the right to have access to information can only be exercised by a citizen. In this behalf, it was submitted that under Article 260 of the Constitution, citizen means a
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citizen of Pakistan as defined by law; relevant law being the Pakistan Citizenship Act, 1951, which defines 'citizen', under sections 3 to 6, as citizen at the date of commencement of the Pakistan Citizenship Act, 1951; citizen by birth; citizen by descent and citizen by migration. It was argued that only a natural person can be a citizen and a company incorporated under the laws of Pakistan being a legal person cannot be a citizen. It was further submitted that although a company is a juristic person undoubtedly, it does not qualify to be a citizen as per the definition in the Pakistan Citizenship Act, 1951. It was argued that even in the Constitution, where fundamental rights are defined and explained, a distinction has been drawn between a citizen and a person. It was submitted that there are certain fundamental rights which only concern citizens, including freedom of movement, freedom of assembly, freedom of association, freedom of trade, freedom of speech and right to information (Articles 15 to 19A of the Constitution). Similarly, it was submitted that freedom to profess religion; provision as to property; equality of citizens; right to education; non- discrimination in respect of access to public places and safeguard against discrimination in services are provided under Articles 20, 23, 25A, 26 and 27 of the Constitution. Learned counsel drew attention of the Court towards the fundamental rights granted to a person and that being provided as security of a person, safeguards as to arrest and detention, right to fair trial, protection against retrospective punishment, protection against double punishment and self incrimination, safeguards as to educational institutions in respect of religion and protection of property rights, as contained in Articles 9, 10, 10A, 12, 13, 22 and 24 of the Constitution. It was added that this distinction is deliberate and cannot be ignored and a citizen being a citizen as defined under the law and a person is someone who naturally may or may not be a citizen but can be a citizen or legal person. Learned counsel submitted that the proposition whether a company is a citizen or not came up for consideration before the Supreme Court of Pakistan in Federation of Pakistan v. Muhammad Sadiq (PLD 2007 SC 133) wherein the Supreme Court held that a company incorporated under the laws is not a citizen. Learned counsel took the Court through various aspects of the judgment to highlight his arguments. He also placed reliance on Messrs Al-Raham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious Affairs, Hajj; Zakat and Ushr (2011 SCMR 1621). Learned counsel then further argued his point of view on the basis of precedents taken from Indian jurisdiction, placing reliance on State Trading Corporation of India Limited v. The Commercial Tax Officer, Vishakapatnam (AIR 1963 SC 1811), Tata Engineering and Locomotive Co. v. State of Bihar and others (AIR 1965 SC 40) and Jaipur Udhyog Limited v. Union of India (AIR 1969 Raj. 281). Learned counsel then took the Court through precedents from the European jurisdiction to strengthen his submission that a company is a separate entity and is not a citizen. He also referred to precedents from American jurisdiction to make similar submission. Learned counsel summarized his submissions by stating that the Company is not a citizen and is a separate legal entity from its shareholders and veil of incorporation is not to be lifted unless exceptional circumstances necessitate such piercing of the corporate veil. The second limb of the petitioner's contention is that the Petitioner does not fall within the definition of a public body from which information can be sought. He referred to section 2(ix) of the Act whereunder 'public body' has been defined which is reproduced in the proceedings paras. He further submitted that information sought is exempted under section 7 of the Act as minutes of meeting cannot be requested and granted. 3. Learned counsel for Respondent No.2 contended, inter alia, that the definition of the word 'applicant' provides that even a person can seek requisite information. It was submitted that since 'applicant' includes a person and Petitioner is a legal person/juristic body, hence is competent to seek the information. Learned counsel conceded that citizen is a person who is a citizen under the Pakistan Citizenship Act, 1951, but submitted that since 'applicant' is a broader term, harmonious interpretation of the two provisions would include a person and therefore, a person can also seek information, thus the Petitioner is competent to do so. Learned counsel drew the same distinction
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as was made by learned counsel for the Petitioner regarding fundamental rights available to a person. She placed reliance on case of Pakcom Limited and others v. Federation of Pakistan (PLD 2011 SC 44). She also made reference to D. G Khan Cement Company and others v. Federation of Pakistan (PLD 2013 Lahore 693) Messrs Riaz Bottlers (Pvt.) Ltd. v. LESCO (2010 PTD 1295), Pakistan Petroleum Limited v. Director General Mines and Minerals and Manpower Building (PLD 2011 Quetta 1), and Messrs Murree Brewery Company Limited v. Director General, Excise and Taxation (1991 MLD 267). Learned counsel then referred to precedents established in other jurisdictions. In this behalf, reference was made to Rustam Cavasjee Cooper v. Union of India (1970) 1 SCC 248), Chiranjilal Chaudhari v. Union of India [1951] 21 Comp. Cas. 33) and D.G. and G.M. v. Union of India (AIR 1983 SC 937). Reference was also made to American precedents viz. First National Bank of Boston v. Francis X Bellotti, Attorney General of Massachusetts (435 U.S. 765) and Citizens United v. Federal Election Commission (558 U.S. 310). Learned counsel highlighted that over time, Courts from foreign jurisdictions have blurred the distinction between 'citizen' and 'person' and have granted fundamental rights, originally extended to citizens, to corporations as well by lifting the veil of incorporation. It was submitted that the record of the Petitioner is not protected in any way and the exceptions provided in section 7(b)(e) of the Act are also not attracted. 4. Submissions of the parties have been heard and the documents placed on record examined with their able assistance. The issues for determination before this Court are twofold: (i) Whether Respondent No.2, being a corporation, qualifies as a 'citizen' for the purpose of making a request under section 11 of the Act? (ii) Whether the information sought is exempted by virtue of section 7 of the Act? 5. Before dilating upon the submissions of the parties and rendering opinion on the aforestated issue, it would be apt to reproduce the relevant statutory provisions. In this regard, application was made by Respondent No.2 tinder section 11 of the Act, which is reproduced below:-- "11. Requests.- (1) Subject to the provisions of this Act and the rules made thereunder, a citizen of the Islamic Republic of Pakistan may make a request to a public body through the designated official. (2) A request under subsection (1) shall be in writing and made in any manner in. which the public body has the facilities to receive it, including in person, by mail, fax, online or e-mail. (3) Any written request which identifies the information or record sought in sufficient detail, to enable the public body to locate it and which includes a complete address and contract details for delivery of the information or record, shall be treated as a request. (4) Subject to subsection (3), a public body may provide a prescribed form for making requests. (5) In no case shall an applicant be required to provide reasons for his request." Bare reading of the above provision shows that a request can be made by a citizen of the Islamic Republic of Pakistan and the same is to be made to a public body; in subsection (5) of the same, instead of the word citizen, the word applicant has been used i.e. the person making the request who does not have to provide reasons for his request. Section 2 (ii) of the Act defines 'applicant; as follows:-- "Applicant means a citizen of Pakistan, as defined in law, who lodges a request or any person who is acting for or on behalf of such a person." Such a request is to be made to a public body, as defined in section 2(ix), which reads as follows:-- "Public Body means--- (a) any Ministry, Division, attached department or subordinate office, including autonomous bodies of the Federal Government; (b) any Federal and any municipal or local authority set up or established by or under any Federal Law;
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(c) the National Assembly and the Senate including their secretariats, committees and members; (d) any statutory corporation or other body corporate or institution set up or established or owned or controlled or funded by the Federal Government; (e) any court, tribunal, commission or board under the Federal law; (f) any incorporated or unincorporated body of the Federal Government functioning under the control or authority of another public body or wherein one or more public bodies own or have controlling interest or provide substantial funding; (g) any other organization which undertakes a public function, to the extent of that function; and (h) a non-governmental organization which directly or indirectly receives or has received public funds, subsidy, tax exemption, piece of land or any other benefit involving public funds and any other non-governmental organization or body registered under any law for the time in force." The Petitioner seeks protection or immunity by exclusion of certain record as provided in section 7 of the Act, which is reproduced as follows:-- "7. Exclusion of certain record:- Nothing contained in section 6 shall apply to the following record of all public bodies, namely:-- (a) noting on the files, subject to a final decision by the public body; (b) minutes of meetings, subject to a final decision by the public body; (c) any intermediary opinion or recommendation subject to a final decision by the public body; (d) record of the banking companies and financial institutions relating to the accounts of their customers; (e) record relating to defence forces, defence installations or connected therewith and ancillary to defence and national security excluding all commercial and welfare activities; Q.9 record declared as classified by the Minister-in-charge of the Federal Government; Provided that the Minister-in-charge of the Federal Government will have to record reasons as- to why the harm from disclosure of information outweighs public interest, and further that information pertaining to allegation of corruption and violation of human rights shall not be excluded; (g) record relating to the personal privacy of any individual; and (h) record of private documents furnished to a public body either on an express or implied condition that information contained in any such documents shall not be disclosed to a third party." The controversies as raised in the instant petition, arising out of the impugned order passed in appeal by Respondent No.1, are that firstly Respondent No.2 is not qualified to make the subject application as it is not a citizen of Pakistan but a company registered under the laws of Pakistan; secondly, that Petitioner is not a public body as defined in section 2(ix) ibid and thirdly, that information sought which is a decision taken in the meeting with respect to contracts awarded to Special Communication Organization. Since bulk of the arguments was addressed on the question of competence of Respondent No.2 to initiate the request, the said question is taken up for consideration first. Subsection (1) of section 11 specifically provides that request can be made by a citizen of Islamic Republic of Pakistan. The concept of citizen as defined in Article 260 of the Constitution includes any person who is a citizen of Pakistan under the relevant law; the relevant law being the Pakistan Citizenship Act, 1951. Under the referred Act, there are three categories of citizens viz, citizen at the time of pronouncement of the Pakistan Citizenship Act, 1951; citizen by birth; citizen by descent and citizen by migration (sections 3 to 6 of the Pakistan Citizenship Act, 1951). However, in the same section, i.e. section 11 ibid, in subsection (5), the word applicant has been used which is defined in subsection (ii) of section 2, as reproduced hereinabove, means citizen of Pakistan as defined in law, who lodges a request or any person who is acting for or on behalf of such a person. This means that the concept of applicant not only includes a citizen but a
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person as well. Before analyzing the said anomaly, I deem it appropriate to consider whether the company can be regarded as a citizen. In this regard, the Supreme Court of Pakistan in Federation of Pakistan v. Muhammad Sadiq (PLD 2007 SC 133) held that a company incorporated under the Companies Act, 1913 or Companies Ordinance, 1984 does not fall within the definition of a citizen. It was observed that the constitutionality of a legislation, which has impaired the rights of a company, can be challenged through a shareholder. In another case, i.e. Messrs Al-Raham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious Affairs, Hajj, Zakat and Ushr (2011 SCMR 1621), while interpreting the provisions of the Constitution, namely Articles 18 and 25, the Supreme Court of Pakistan observed that the Constitution is a living document and observed that corporations can file petitions for enforcement of fundamental rights under Articles 18 and 25 of the Constitution. In reaching such conclusion, the Supreme Court opined that fundamental rights are to be construed broadly keeping in view the ground economic realities so as to extend such protection to corporations. The reasoning of the Supreme Court of Pakistan can be found in paragraphs 25 to 35 of its judgment, which are reproduced below:-- "25. As regards the contention of learned counsel for the petitioners, regarding Articles 18 and 25 of the Constitution that the respondents-corporate bodies are not entitled for the protection, what appears from the policy framed by the Executive is that all the Tour Operators have been asked whether they performed their function as sole proprietorship or not to constitute a limited company to enroll them as HGOs and thereafter the Government would be allocating quota to them. The shareholders of respondents-companies were forced/compelled to establish limited companies to meet the criteria laid down under the policy. It was not disputed by the Ministry or any one of the petitioners before us that all the shareholders of the respondents, private limited companies, were the citizens of Pakistan and in some cases they were members of the same family. 26. The authority cannot deprive the fundamental rights of the citizens by making a policy thereby compelling them to form firstly a limited company and then to non-suit on the ground that as the company is not a citizen, thus cannot seek protection. 27. We would like to reproduce herein below the relevant paragraph from the "Constitutional Law of India" authored by H.M. Seervai:-- "If the corporate veil can be torn so that the employees of corporate bodies might not be deprived of their fundamental rights, there is no rational ground for not tearing the corporate veil so that the shareholders or members of a corporation who have ultimate control of the corporation may not be denied their fundamental rights. But before a question can arise whether a corporation is a citizen, two conditions must be satisfied. First, all or a majority of its shareholders must be Indian citizens; and secondly, its management and control must be in the hands of Indian citizens. If both these conditions are satisfied, then the correct ground for holding that such a corporation is a citizen is that a Court will look behind the corporate veil to the persons, who in substance, though not in legal theory, control the management and run the company. This would also get rid of the absurd anomaly that although a partnership firm carrying on a small business can enforce its fundamental rights under Art. 19, companies, State Corporations, Government companies and corporations created by statute carrying on business on the most extensive scale cannot be created by statute carrying on business on the most extensive scale cannot claim those rights". 28. The question whether the fundamental rights of the shareholders, who were compelled to form company to become eligible to be enrolled as HGOs, can be denied of equal treatment merely because on the directions of the Government they decided to form private limited companies to some extent is at par with a partnership firm. 29. The question that if the law is void for citizen, then why the law should not be void or "still born" against those, who have no fundamental rights, who by operation of law not come strictly within
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the definition of citizen. 30. When a petition is maintainable by shareholders as held in the cases of Barium Chemicals Ltd. v. Company Law Board (AIR 1967 Supreme Court 295); A. I. Works v. Chief Controller, Imports. (AIR 1974 Supreme Court 1539) and B. C. & Co. v. Union of India (AIR 1973 Supreme Court 106), the petitions filed before the High Court through the directors and the present petitions should not be treated as petitions filed through their shareholders instead of denying justice to the respondents on this technical ground. 31. Human rights cannot be confined only to, the basic civil rights and liberties, including political liberty because a man cannot think for individual and collective development when he cannot meet the basic necessities of life such as minimum food, clothing, and housing. The rights to those basic necessities of life are basically and fundamentally economic rights. It means that both the basic civil rights and liberties and those economic rights must go hand in hand. They are inseparable and indivisible. 32. Even if it is accepted that a company is not a citizen for the purpose, of Article 25 of the Constitution, it has the ordinary right of every person to hold property and do business and that if the right taken away or even affected by an act without authority of law would be called in question to give justifiable cause to be agitated before the Court. 33. The Constitution is a living organism and has to be interpreted to keep alive the traditions of the past blended in the happening of the present and keeping an eye on the future as well. The Constitution must be interpreted keeping in view the entire canvas of national fabric, be it political, social, economic or religious. 34. It is a well settled principle that Constitution is to be interpreted liberally and saved from cosmetic circumscribed and construction. It is not a document of past or present but so it is to be interpreted in a manner to meet the changing conditions of socio-religion and economic dynamics of the Stare. 35. In the case of Federation of Pakistan v. Muhammad Sadiq (PLD 2007 Supreme Court 133), this Court has held that "a company incorporated under the Companies Act, 1913 or the Companies Ordinance, 1984, does not fall within the definition of a citizen. However, the constitutionality of a legislation, which has impaired the rights of a company, can be challenged through a shareholder." The petitioners have appeared before the High Court and have not objected to the maintainability of the petitions by a company which would give an opportunity to the petitioners- company either to amend the petition or filed through his Director/shareholder or joined some of the shareholders as the petitioners. For these reasons, we are of the view that the contentions raised by the learned counsel about the maintainability of the petitions have no force." In another case titled Pakcom Limited and others v. Federation of Pakistan (PLD 2011 SC 44), a telecom company approached the Supreme Court of Pakistan, challenging a judgment of the Islamabad High Court regarding non-issuance of license. The challenge made was primarily that the action of the Regulator was in violation of Articles 18, 23 and 25 of the Constitution and the Petitioner was entitled, as of right, to have a license to compete with other telecom operators. The referred Articles grant fundamental rights to citizens. The main question before the Supreme Court was whether such fundamental rights, which are applicable to citizens, can be invoked and relied upon by a corporate entity. The reasoning of the Supreme Court of Pakistan on this issue, on the touchstone of different judgments from Indian jurisdiction, is found in paragraphs 54, 57 and 58 which are reproduced below:-- "54. There should, however, be no doubt in it that "the imposition of a licence fee and requirement of a licence from person desiring to carry on any occupation, trade or business is a restriction on the right to carry on -the occupation, trade or business and its validity is liable to be questioned and tested. 'The requiring of licence and imposition of a licence fee would be valid only if it is
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reasonable and in the interest of the general public" (Muhammad Yasin v. Town Area Committee, Jalalabad AIR 1952 SC 115, Ramjilal v. I. T. Officer AIR 1951 SC 97, T. K. Abraham v. State of TRA. Co. AIR 1958 KER 129, In Re Parameswaran Pillai AIR 1955 Tray-Co. 268, Ratan Chandra v. Adhar Biswas AIR 1952 Cal. 72). Let we make it clear that "this Article does not guarantee a monopoly to a particular individual or association to carry on any occupation and if other persons are also allowed the right to carry on the same occupation and an element of competition is introduced in the business that does not, in the absence of any bad faith on the part of the authorities, amounts to a violation of the Article." (Emphasis provided). (Harnam Singh and others v. Regional Transport Authority Calcutta Region and others AIR 1954 SC 190). 57. It must, however, be kept in view that though the persons similarly situated or in similar circumstances are to be treated in the same manner but the "equality clause particularly the provision about the equal protection of the laws does not mean that all citizens shall be treated - alike under all set of circumstances and conditions; both in respect of privileges conferred and liabilities imposed. Whatever else the expression 'equal protection of law' may mean it certainly does not mean equality of operation of legislation upon all citizens of the State," (Mohd Mukhtar v. Special Tribuhal PLD 1977 Lah. 524). 'Equality of citizens does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the…
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