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Official Citation: 2024 PLD 2027
Court / Jurisdiction: Islamabad High Court
Parties: China Mobile Pakistan Ltd. vs FOP Etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 PLD 2027. In this matter between China Mobile Pakistan Ltd. and FOP Etc, 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.
COURT: Islamabad High Court (Honourable Mr. Justice Miangul Hassan Aurangzeb) AUTHOR JUDGE: Honourable Mr. Justice Miangul Hassan Aurangzeb DECISION DATE: 21-AUG-2024 CASE NO: Writ Petition-3626-2019 CITATION: 130 PLD 2025 PARTIES: China Mobile Pakistan Ltd. VS FOP Etc LAW / SECTION: under Art. 199 of the Constitution | under Section 7 of the Pakistan Telecommunication (Re-organization) Act, 1996 ("the 1996 Act"), SUBJECT: Miscelleneous, Other REMARKS: AGAINST DECISION DT.17.10.2019 PASSED BY PTA WHEREBY ORDERS FOR TERMINATION OF PETITIONER LICENSE IN CASE OF NON RENEWAL HAS BEEN PASSED ============================================================ JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT
W.P.No.3626 of 2019 China Mobile Pakistan Limited Versus Federation of Pakistan and others
Date of Hearing: 08.08.2024. Petitioner/Appellant by: M/s Shahzada Naeem Bukhari , Kashif Nawaz Siddiqi and Muhammad Imad Khan, Advocates for the petitioner in writ petition No.3626/2019. M/s Salman Akram Raja, Asad Ladha and Malik Ghulam Sabi r, Advocates for the petitioner/ appellant in writ petition No.3458/2020 and first appeal against order No.133/2020. Respondents by: Barrister Qasim Wadood, learned Additional Attorney-General. Mr. Arshid Mehmood Kiani, learned Deputy Attorney-General. Barrister Munawar Iqbal Duggal along with M/s Sajjad Latif Awan, Director General (Law), Muhammad Khurram Siddiqui, Director (R&L), Naeem Ashraf, Consultant (Law), Shameer Shahid, MTO (Law) and Ch. Adil Javed, Assistant Director (L&R) for PTA in writ petitions No.3626/2019, 3458/2020 and first appeal against order No.133/2020. M/s Ashtar Ausaf Ali, Barrister Muhammad Usama Rauf, Barrister Asad Rahim Khan and Ahmed Rehan - ur-Rashid, Advocates along with Mr. Ihsanullah Khan, Director (SP&M) for FAB in writ petition No.3458/2020 and first appeal against order No.133/2020. M/s Abdul Rahim Bhatti, Yasser Rahim Bhatti and Qaiser Rahim Bhatti, Advocates along with M/s Ihsanullah Khan, Director (SP&M) and Adnan, Assistant Director (Law), FAB in writ petition No.3626/2019. Assisted by: Mr. Umar Farooq, Deputy Registrar. ________________________________________________________________________ 2 W.P.s No.3626/2019 & 3458/2020 and F.A.O.No.133/2020
MIANGUL HASSAN AURANGZEB, J :- Through this judgment , I propose to decide writ petitions No.3626/2019, 3458/2020 and the first appeal against order No.133/2020 since they entail certain common features. 2. Through writ petition No.3626/2019 filed on 19.10.2019, China Mobile Pakistan Limited (“ZONG”) impugns letter dated 17.10.2019 from the Pakistan Telecommunication Authori ty ( “PTA”) whereby it was informed that in case its licence No.CM T-03/LL&M/PTA/2004 dated 23.10.2004, is not renewed by 22.10.2019, the same shall stand terminated. Furthermore, ZONG sought a direction to PTA to renew the said licence for another term of 1 5 years on the same terms and conditions by charging a licence renewal fee of not more than US Dollars 291 million. ZONG had also sought an injunction to restrain PTA from disturbing the additional compensatory frequency spectrum of 6.6 MHz in 1800 MHz Ban d ( “Additional Spectrum” ) allocated to it in the year 2007 due to the cross-border interference in its 900 MHz Band. 3. Through writ petition No.3458/2020 filed on 18.11.2020, ZONG and its Director, Kamran Ali, impugn the decisions taken by the Frequency Allocation Board ( “FAB”) in its 42 nd meeting held on 19.02.2016 and its 44th meeting held on 21.10.2019. Furthermore, the said petitioners seek a direction to PTA to renew ZONG‟s two licences without being bound by FAB‟s decisions taken in the said meetin gs. The said petitioners also seek the setting -aside of notices dated 11.03.2020, 29.10.2020 and demand note dated 03.11.2020 issued by PTA. 4. Through Appeal No.133/2020 filed on 19.12.2020 under Section 7 of the Pakistan Telecommunication (Re -organization) Act, 1996 ( “the 1996 Act” ), ZONG impugns the order dated 14.12.2020 passed by PTA holding that the utilization of the Additional Spectrum by ZONG since 23.10.2019 onwards is unauthorized and illegal. Furthermore, through the said order, ZONG was direc ted to vacate the Additional Spectrum within a period of 7 days. ZONG was also made liable to make payments for the unauthorized use of the Additional Spectrum at the rate of US Dollars 29.5 million per MHz for 15 years in accordance with the Policy Directive. 3 W.P.s No.3626/2019 & 3458/2020 and F.A.O.No.133/2020
FACTUAL BACKGROUND:- 5. The record shows that on 19.04.1990, ZONG‟s predecessor -in- interest, M/s Paktel (Pvt.) Limited ( “Paktel”), had been granted a non - exclusive licence by the Government of Pakistan for the provision of cellular mobile services in Pakistan. This licence was revalidated by PTA on 12.08.1997. Paktel was operating Advance Mobile Phones System (AMPS) in 850 MHz Band . On 23.09.2003 on Paktel‟s request, FAB allocated to it Extended Global System for Mobile Communication (E-GSM) Band. On 23.10.2004 , Paktel‟s licence No.CMT - 03/LL&M/PTA/2004 was renewed for a period of fifteen years under the Mobile Cellular Policy, 2004 against the payment of renewal fee of US Dollars 291 million. The licence was for frequency spectrum 7.6 MHz in 900 MHz Band and frequency spectrum 6 MHz in 1800 MHz Band. 6. In the year 2005, Paktel had reported interference in its 900 MHz Band at differ ent locations in the Provinces of Punjab and Sindh. After the matter was referred to FAB, it was found that the interference was due to the Indian Code Division Multiplexing Access ( “Indian CDMA” ) network services in 850 MHz Band operational across the eas tern border of Pakistan. 7. FAB had conducted detailed monitoring and joint survey with Paktel between 04.01.2006 and 08.01.2006 in the areas of Sialkot, Pasrur, Narowal, Lahore , and Qasur. In FAB‟s report dated 16.01.2006, it was recommended that in orde r to address the problem of severe interference in Paktel‟s uplift band from across the border, Additional Spectrum in 1800 MHz Band be allocated to it. It was also recommended that the case be taken up with the Telecom Regulatory Authority of India for th e removal of cross -border spectrum interference. 8. PTA had also taken up the matter regarding cross -border interference in Paktel‟s 900 MHz Band with the International Telecommunication Union ( “ITU”). Letter dated 28.02.2006 shows that ITU had requested the administration in India in accordance with the applicable Radio Regulations to take necessary action to eliminate the interference. 4 W.P.s No.3626/2019 & 3458/2020 and F.A.O.No.133/2020
9. On 20.03.2007, PTA approved the change in Paktel‟s name to China Mobile Pak Limited , which is being referred to in this judgment as “ZONG.” The matter regarding cross -border interference came up for consideration in the 30th meeting of FAB held on 08.09.2007. The minutes of the said meeting show that ZONG had requested the grant of additional bandwidth in 1800 MHz range for Karachi and Hyderabad due to the cross -border interference in its 900 MHz Band. In the said meeting, FAB approv ed the allocation of additional frequencies in 1800 MHz Band (1760.1 – 1766.7/ 1855.1 – 1861.7 for affected areas in Sindh and 1769.3 – 1775.9/ 1864.3 – 1870.9 for affected areas in Punjab) for one year. The remarks of the Director, Ministry of Information Technology, were that the interference phenomenon had been reduced significantly; the said allocations were for one year; and that once the problem regarding interference is solved, the additional bandwidth would be retained by FAB. 10. Vide letter dated 15.04.2008, FAB informed ZONG as to the approval for the extension in the temporary allocation of frequencies in the 1800 MHz Band for the next three years, i.e. up to 18.04.2011 within the interference affected areas only. Apparently, a decision to the s aid effect had been taken by FAB in its 33rd meeting held on 29.02.2008. 11. Vide letter dated 25.04.2011, ZONG requested PTA for an extension in the allocation of the Additional Spectrum of 6.6 MHz in 1800 MHz Band to compensate for the interference face d in its 900 MHz Band from operators in India. In the said letter, it was asserted that the issue of interference had not been resolved and that the problem was still persisting. 12. There is nothing on the record to show that after the expiry of the said three-year period ZONG had either been required by FAB to vacate the Additional Spectrum or expressly permitted to utilize the same. PTA, however, through letter dated 04.09.2012 , required FAB to process ZONG‟s case for extension in the allocation of the A dditional Spectrum “till such time permanent solution is explored / finalized.” Be that as it may, it is an admitted position that ZONG continued to utilize the 5 W.P.s No.3626/2019 & 3458/2020 and F.A.O.No.133/2020
Additional Spectrum without any break beyond the said three -year period. 13. FAB, in its 39th meeting held on 07.03.2014 , decided to allow ZONG to utilize the Additional Spectrum until 30.07.2014. The matter regarding cross -border interference in ZONG‟s 900 MHz Band also came up for discussion in the 40th meeting of FAB held on 03.02.2015. One of th e proposals made by the Executive Director, FAB was that ZONG may be allowed to utilize the Additional Spectrum in the affected areas of Punjab and Sindh as compensation for the cross -border interference in its 900 MHz Band. It was also proposed that the Additional Spectrum would be for the remainder term of ZONG‟s existing 2G licence, and that no further extension would be granted to ZONG for the use of the Additional Spectrum after the expiry of the licence in 2019. In the said meeting, it was decided tha t the matter should be discussed with ZONG for an amicable solution, and to initiate a process for the resolution of the cross-border interference. 14. FAB, in its 41st meeting held on 14.10.2015, decided to constitute a four-member committee to give recommendations for the resolution of the issues faced by ZONG, including the issue of cross -border interference in its 900 MHz Band. The minutes of the said meeting show that ZONG was alleged to have been utilizing the Additional Spectrum in areas with no cross-border interference. 15. One of the recommendations of the said committee was that the “current temporary assignment of [ZONG] in 1800 MHz (in lieu of interfered spectrum in 900 MHz Band) be changed with an assignment of 6.6 MHz that is contiguous to their allocated 1800 MHz assignment, for Sindh and Punjab only, till expiry of [ZONG‟s] (2G) license or removal of the interference whichever is earlier.” It was also recommended that ZONG be informed that at the time of the renewal of its licence, a comprehensive survey will be conducted and if interference due to cross-border signals still persists then the licence will be renewed without the current frequency assignment in 900 M Hz Band. These recommendations were submitted by the said committee vide letter dated 19.02.2016 to the Ministry of Information Technology and FAB. 6 W.P.s No.3626/2019 & 3458/2020 and F.A.O.No.133/2020
16. ZONG‟s licence dated 23.10.2004 was valid for a term of 15 years. Clause 1.2.2 of the said licence provi ded that if the licencee wishes to renew the term of the licence at the expiration of the term (i.e. 22.10.2019), it shall submit to PTA a written request for renewal at least 45 months prior to the expiration of the said term. Under clause 1.2.3, PTA had a period of three months to decide whether or not to renew the licence. 17. On 20.01.2016, ZONG had applied to PTA for the renewal of its licence. The Telecommunication s Policy of 2015 was in force when ZONG applied for the renewal of its licence. Paragra ph 8.18.1 of the said policy reads thus:- “Complaints and Enforcement: License holders expect the swift resolution of interference issues, which is essential for well managed spectrum. FAB is responsible for investigating interference complaints and the PT A and PEMRA are responsible for undertaking enforcement actions. PTA and PEMRA will attempt to resolve interference issues notified to them within 30 days of notification.”
18. The recommendations made by the four -member committee constituted pursuant to the decision taken in FAB‟s 41 st Board meeting dated 14.10.2015 came to be considered by FAB in its 42nd meeting held on 19.02.2016. It was decided to withdraw ZONG‟s previous additional assignment of 6.6 MHz (i.e. 1760.1 – 1766.7 / 1855.1 – 1861.7 MHz for interference affected areas in Karachi and Hyderabad, and 1769.3 – 1775.9 / 186 4.3 – 1870.9 MHz for interference affected border areas of Punjab) in 1800 MHz Band, and to approve additional assignment of 6.6 MHz (i.e., 1755.7 – 1762.3 / 1850.7 – 1857.3 MH z) due to cross -border interference from India in ZONG‟s 900 MHz Band. ZONG was also informed as to the conditions on which the said additional assignments had been approved. For the purposes of comparison and clarity, the previous and the new assignment a s mentioned in the minutes of the said meeting are reproduced herein below:- Previous Temporary Assignments New Temporary Assignments 1760.1 – 1760.1 – 1766.7/ 1855.1 – 1861.7 (6.6 + 6.6 MHz) in Karachi & Hyderabad 1755.7 – 1762.3 / 1850.7 – 1857.3 MHz (6.6 + 6.6 MHz)
19. The said decision was taken subject to the following conditions:- 7 W.P.s No.3626/2019 & 3458/2020 and F.A.O.No.133/2020
“a. The temporary additional assignments will be utilized by Zong in areas affected by cross border interference due to Indian CDMA signals in Punjab and Sindh till the expiry of GSM license i.e. Oct 20[19] or elimination of cross border interference whichever is earlier. b. Zong will use the said frequencies for cellul ar services within the provisions of license issued by the PTA. c. Zong will not deploy any non -tuneable equipment in the DCS (1800 MHz) Band and should re -tune their temporary additional assignments in future if so required. d. PTA will issue a notice to Zong that renewal of 2G license (October 20[19]) to be offered without interfered portion of 900 MHz band. If Zong opt to keep its original 2G assignment s of 900 and 1800 MHz (2 x 13.6 MHz) at the time of renewal then Zong will not claim compensation in terms of additional assignments.”
20. Vide letter dated 11.03.2016, FAB informed ZONG as to the decisions taken by FAB in its 42 nd meeting dated 19.02.2016. Furthermore PTA, vide letter dated 03.05.2016, informed ZONG that the renewal of its 2G licence on 22.10.2019 will only be offered for the un - interfered portion of the 900 MHz Band, if available. 21. Vide letter dated 11.12.2018, ZONG expressed its desire to PTA for the renewal of its existing allocation along with the A dditional Spectrum of 6.6 MHz in 1800 MHz Band. ZONG also expressed its desire to purchase the said spectrum for use not just in the interference affected areas of Punjab and Sindh but also in the remaining areas of Pakistan. 22. Regarding ZONG‟s desire t o continue using the Additional Spectrum post -licence renewal PTA, vide letter dated 14.02.2019, reminded ZONG that through FAB‟s letter dated 11.03.2016 and PTA‟s letter dated 03.05.2016, it had been made clear that the Additional Spectrum will be utilized till the expiry of the licence in October, 2019 or the elimination of the cross-border interference, and that the renewal of the licence on 22.10.2019 will be offered with un -interfered portion of 900 MHz Band, if available. 23. Vide letter dated 14.02. 2019, ZONG again requested FAB to consider its request of renewing its licence along with the Additional Spectrum of 6.6 MHz in the 1800 MHz Band. ZONG again expressed its desire to purchase the said Additional Spectrum for use in the remaining areas of Pakistan. 8 W.P.s No.3626/2019 & 3458/2020 and F.A.O.No.133/2020
24. In their meeting dated 14.02.2019, one of the options given by FAB to ZONG as a solution for the cross -border interference in the latter‟s 900 MHz Band was for ZONG to abandon the E -GSM Band altogether and adopt Band 5 configuration. This opti on was given in view of the non-existent procedures for coordination with India. FAB had also expressed that the continuation of the Additional Spectrum of 6.6 MHz in 1800 MHz Band to ZONG in lieu of the interfered 900 MHz Band will result in a loss of mil lions of dollars to the national exchequer. It was also admitted that there existed a perennial phenomenon of cross - border interference from India in ZONG‟s 900 MHz Band. 25. Vide letter dated 11.03.2019, FAB was informed by ZONG that the latter would not be able to avail the Band 5 option but expressed its openness to consider any other option which may help it to keep its long term business strategy to the satisfaction of its customers. Through the said letter, ZONG pointed out that neither PTA nor the Mi nistry of Information Technology had issued any new policy framework for the renewal of licences, and that Ufone‟s 2G licence was last renewed in 2014 at a price of US Dollars 291 million. ZONG expressed its understanding that the same policy framework wil l be applied at the time of the renewal of its 2G licence. 26. In exercise of the powers conferred by Sections 8(2) and 22(3) of the 1996 Act, the Federal Government, on 09.05.2019, issued a Policy Directive ( “Policy Directive” ) setting out a specific pol icy on cellular mobile licences, including ZONG‟s licence which was due for renewal on 22.10.2019. This Policy Directive was issued for compliance by PTA and FAB. The salient features of this Directive were that the renewal price for the right to use frequ ency spectrum included in the licences being renewed was to be in accordance with the per MHz price benchmarks from frequency spectrum auctions of 2016 and 2017 , i.e. per MHz price for frequency spectrum in 900 MHz and 1800 MHz was to be US Dollars 39.5 mi llion and US Dollars 29.5 million, respectively; the tenure of the renewed licences was to be continued for 15 years; the payment terms were 100% upfront or 50% upfront with remaining 50% in five equal annual installments on LIBOR + 3%. More particularly f or 9 W.P.s No.3626/2019 & 3458/2020 and F.A.O.No.133/2020
ZONG, the Policy Directive provided that FAB will provide options in lieu of ZONG‟s cross -border interfered spectrum in 900 MHz Band. Furthermore, it was provided that in case of non -acceptance of proposed options, the renewal of ZONG‟s licence and its associated spectrum shall be dealt in accordance with paragraph No.4(v) of the decisions taken in FAB‟s 42 nd Board meeting (i.e. without any compensation in terms of additional frequency assignments). 27. After the Policy Directive was issued by the Federa l Government, ZONG, vide letter dated 21.06.2019, requested PTA to confirm the availability of the un -interfered portion of 900 MHz Band or otherwise. It was also stated that in case of non -availability, alternate options be provided to ZONG. In the said l etter, it was mentioned that ever since ZONG started facing interference in its 900 MHz Band, it had suffered a loss of approximately US Dollars 200 million. ZONG took the position that the Additional Spectrum of 6.6 MHz in the 1800 MHz Band had become an integral part of its network and that the same should not be forcibly withdrawn. It was asserted that ZONG had invested a huge amount to utilize the said Additional Spectrum with its other allocated/licenced spectrum. ZONG expressed a hope that during the process of renewal, PTA and FAB would provide continuous interference-free spectrum to support ZONG‟s business development in the next fifteen years of the licence term. 28. A reminder was sent to PTA by ZONG on 06.08.2019. Vide letter dated 29.08.2019, PTA informed ZONG in categoric terms that no compensation in the form of Additional Spectrum could be granted to ZONG. 29. On 03.09.2019, the Executive Director, FAB addressed a letter to ZONG on the subject of “Renewal of Cellular Mobile License of M/s CM Pak-2019 to 2034.” The said letter makes reference to the Policy Directive and the minutes of the 42 nd meeting of FAB held on 19.02.2016 as well as correspondence between ZON G and PTA on the subject. It also makes reference to the mandate given to FAB in the Policy Directive to provide options in lieu of cross -border interfered spectrum 10 W.P.s No.3626/2019 & 3458/2020 and F.A.O.No.133/2020
in ZONG‟s 900 MHz Band. The options given by FAB, which are essential for the purposes of the instant case, are as follows:- “a. 1739.7 – 1745.7/ 1834.7 – 1840.7 (6 + 6 MHz) to be offered to M/s CMPak in 1800 MHz Band at the price of renewal as per the Policy Directive i.e. 29.5 million/ MHz for a 15 -year license. This portion is the original 1800 MHz band licensed to M/s CMPak. b. The temporary additional assignments in 1800 MHz Band i.e. 1755.7 – 1762.3/ 1850.7 – 1857.3 MHz (6.6 + 6.6 MHz) to be offered to M/s CMPak as a licensed spectrum upon renewal at the price of renewal as per the Policy Directive i.e. 29.5 million/ MHz for a 15-year license. c. An additional 2 x 2.4 MHz (1781.1 – 1783.5/ 1876.1 – 1878.5 MHz) will be offered to M/s CMPak at the price of renewal as per the Policy Directive i.e. 29.5 million/ MHz for a 15 -year license for making their spectrum holdings 2 x 25 MHz in 1800 MHz Band. The said spectrum will be re -farmed in future for ma king the spectrum assignments of M/s CMPak contiguous subject to agreement between concerned operators. d. Un-interfered portion of 900 MHz Band i.e. 888.1 – 890.1/ 933.1 – 935.1 (2 + 2 MHz) to be offered to M/s CMPak at the price of renewal as per the Policy Directive for either the entire duration of renewed license or for a fixed period of time. The portion of frequency spectrum affected by cross border Indian Signal i.e. 882.5 – 888.1/ 927.5 – 933.1 (5.6 + 5.6 MHz) will not be offered for renewal consid ering M/s CMPak latest findings of more than 60% affected cells in Punjab and Sindh. The said assignment, subject to payment as per the Federal Government defined price, will help enable M/s CMPak to migrate to 1800 MHz for the said license.”
30. ZONG did not accept any of the options given in FAB‟s letter dated 03.09.2019. In its letter dated 05.09.2019, ZONG took the position that since cross -border interference in its 900 MHz Band was a continuing phenomenon, its licence ought to be renewed by continuin g the status quo of 7.6 MHz in 900 MHz Band; 6 MHz in 1800 MHz Band; and the additional compensatory / free of charge spectrum of 6.6 MHz in 1800 MHz Band. ZONG also wanted the payment terms for the renewal of its licence to be same as the ones agreed with PTA for the grant of its 2G licence in 2004, ZONG‟s existing 2G licence payment installment plan , as well as the total price of US Dollars 291 million. 31. PTA, in its letter dated 12.09.2019 to the Secretary, Cabinet Division (which has administrative co ntrol over FAB), referred to paragraph (viii) of the Policy Directive which required FAB to provide options in lieu of ZONG‟s cross -border interfered spectrum in 900 MHz Band. The Policy Directive also provided that in case the options given by FAB are not acceptable to ZONG, the renewal of its licence shall be 11 W.P.s No.3626/2019 & 3458/2020 and F.A.O.No.133/2020
dealt with in accordance with the decision taken in FAB‟s 42 nd meeting to renew ZONG‟s licence without any compensation in terms of additional frequency assignments. PTA also reminded the Secretary, Cabinet Division that FAB, in its 42 nd meeting, had decided that PTA will issue a notice to ZONG that the renewal of its 2G licence will be offered without the interfered portion of 900 MHz Band, and that if ZONG opts to keep its original 2G assignments of 900 MHz Band and 1800 MHz Band at the time of the renewal, ZONG will not claim compensation in terms of additional assignments. Regarding FAB‟s letter dated 03.09.2019, PTA expressed the following reservations:- “2. The contents of the FAB HQs letter clea rly indicates that the office misunderstood its mandate and perhaps by misinterpreting the task assigned to the Board by Federal Government has processed the subject case. The said action on part of FAB HQs may raise serious legal issues with regard to fate and legal status of decision as conveyed to the licensee. Without doubt section 43 of the Act exclusively empowers the Board to allocate and assign radio…
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