Present
Mr. Justice Aqeel Ahmed Abbasi
M/s. Recorder Television Network (Pvt) Ltd……………………Appellant
Versus
Pakistan Electronic Media Regulatory Authority…….. … … Respondents
Date of hearing : 22.03.2013 & 13.04.2013
Date of judgment : 23.05.2013
M/s Abid S. Zuberi and Muhammad Umer Lakhani, advocates for the appellant along with Asif A. Zuberi, Chief Executive of appellant.
Mr. Kashif Hanif, advocate for the respondent a/w Nasir Ayyaz, G.M (Legal) and Wakeel Khan, G.M (Technical)
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Aqeel Ahmed Abbasi, J: Being aggrieved and dissatisfied with the impugned order dated 20th February 2012 passed by the respondent i.e. PEMRA, whereby the Satellite TV Licence of the appellant i.e. M/s Recorder TV Networks (Pvt) Ltd. “AAJ Entertainment” was revoked under Section 30 of PEMRA Ordinance, 2002 appellant has filed instant appeal under Section 30-A of the PEMRA Ordinance, 2002 with a prayer to declare the impugned decision as illegal and without jurisdiction and to set-aside the same.
2. Brief facts as stated in the appeal are that the appellant is a private limited company engaged in dissemination of News through print and electronic media and also operates AAJ TV which is part of the Recorder Television Network. It is stated that the appellant, after having complied with all the codal formalities, applied for issuance of licence before the respondent authority and was issued a satellite TV broadcast station licence for “AAJ Entertainment” on 22nd May, 2008. In terms of the provisions of licence the appellant was required to seek renewal of the same every year on payment of annual fee, whereas the appellant was required to commence its operation within 12 months of the issuance of licence. Before expiry of the appellant sought removal of the licence after making payment and renewal fee before expiry of one year which was duly renewed by the respondents from time to time, whereas extension of one year upto 21st May 2010 to start the operation of the channel was also allowed by the respondents in its 57th meeting held on 15th October 2009. It has been further stated that the appellant pursuant to letter dated 1st March 2011 issued by the respondent asking for the deposit of the requisite annual renewal fee for 2010-2011 paid an amount of Rs.7,00,000/- towards renewal fee of AAJ Entertainment for the year 2011-2012 vide pay order dated 16th May 2011.
3. It has been further stated that the respondent issued a show cause notice dated 01.09.2010 under Section 30 of the PEMRA Ordinance, 2002 to the appellant wherein it was stated that since the appellant could not start its broadcast operation within the stipulated period i.e. 12 months as provided in terms of the provisions of the licence issued to the appellant, therefore, the appellant was called upon to show cause as to why the satellite TV broadcast station licence should not be revoked under Section 30 of the PEMRA Ordinance, 2002. The said show cause notice was responded by the appellant vide reply dated 6.9.2010, wherein it was stated by the appellant that since the licence fee for AAJ Entertainment had been paid upto 22.5.2011, which applied that the period to start the broadcasting of the channel has been extended by the respondent, therefore, the said licence could not be revoked before expiry of the renewal date. It was further stated that since the Cable TV operators have exceeded their maximum channel capacity hence they are not able to broadcast additional channel, including the channel of the appellant, which as per appellant was ready to go on air, an alternate proposal was also made by the appellant to the respondent whereby it was proposed that the appellant may be allowed to share single satellite fee to broadcast two of the networks channels of the appellant. It was proposed that the AAJ Entertainment Channel may be allowed to share the bandwidth with Play TV, another channel of the appellant, whereby Play TV broadcast from Monday to Thursday and AAJ Entertainment be broadcast from Friday to Sunday by sharing same bandwidth. However, since the respondents were not in agreement with such proposal the appellant filed a Constitutional Petition No.D-2661/2010 before a Division Bench of this Court challenging the aforesaid show cause notice alongwith CMA No.10714/2010 on which vide order dated 17.09.2010, Division Bench of this Court was pleased to suspend the show cause notice. However, vide order dated 11.10.2011 the aforesaid petition was dismissed on the ground of availability of alternate remedy and it was observed that the appellant has failed to seek redressal of the grievance by seeking remedy as provided under the law. Thereafter, the appellant was served with another notice dated 23.11.2011 for personal hearing on 1st December 2011, which hearing was adjourned at the request of the appellant for 8th December 2011. The appellant has given reply dated 8th December 2011 and reiterated its earlier position conveyed vide letter dated 6th September 2010 and 15th September 2010. However, the respondent did not agree with the explanation given by the appellant and vide impugned decision dated 21.02.2012 revoked the licence of the appellant, which has been assailed through instant appeal by the appellant.
4. Learned counsel for the appellant has argued that the show cause notice and the entire proceedings emanating therefrom, particularly in view of the reply furnished by the appellant, was illegal and based on malafides. It has been contended by the learned counsel for the appellant that the appellant did not violate any terms of the Ordinance or the licence issued by the respondent to the appellant, which was valid upto May 2011, whereas non-operation of the channel was on account of non-availability of space with cable operators as number of licences issued by the respondent to various channels had already exceeded the maximum capacity i.e. 106 channels available on analog system being used by the cable operators in Pakistan. It has been vehemently argued by the learned counsel that such fact was specifically stated by the appellant in its reply to the show cause notice issued by the respondent, whereas in order to show good faith and the willingness of the appellant to launch the channel and put the same operational within stipulated period, a proposal was also made for sharing the space (bandwidth) of Play Channel of the appellant with AAJ Entertainment Channel, which was not considered by the respondent. It has been further argued that the respondent was not justified in declining the proposal and to directly invoke Section 30 (1) (c) of the Ordinance, 2002, without first resorting to the provision of Section 29 (6) of the Ordinance, 2002, whereby penalty could have been imposed upon the appellant instead of revoking the licence itself. Learned counsel has further argued that, from perusal of para 3 of the impugned decision it can be verified that the respondent had already decided in its 70th meeting held on 25th July 2011 to cancel the satellite TV licence of the appellant AAj Entertainment under Section 30 of the PEMRA Ordinance, 2002, however, such action was withheld in view of the injunction orders passed by a division bench of this Court in the case of petitioner, i.e. C.P.No.2661/2010, hence according to learned counsel the opportunity provided to the appellant pursuant to issuance of show cause notice by the respondent, was merely a formality, therefore, the impugned decision, which otherwise does not contain any valid reasons for revoking the licence of the appellant, is liable to be set aside. Learned counsel has argued that the impugned decision is violative of the provisions and Section 24A of the General Clauses Act, and has been passed in violation of principles of natural justice, hence the same is liable to be dismissed on this account. It has been further argued that under similar facts and circumstances, similar act/decision of the respondents, to revoke the licences issued to different channels including Rose Private Limited (Roze TV) Zem TV Networks has, duly been set aside by the Hon’ble Supreme Court in Civil Appeal No.599/2012 vide order dated 03.10.2012, wherein it has been held that without resorting to provisions of Section 29 an action under Section 30 of the Ordinance, 2002, was not justified and the impugned decision of the respondents cancelling the licence of Rose and Zem TV was set aside and the licence issued to both TV Channels by PEMRA were restored. In support of his contention, learned counsel has also placed reliance on the following reported judgments (i) ARY Communication (Pvt) Ltd v. Federation of Pakistan 2013 CLD 180 (ii) Independent Music Group, SMC (Pvt) Ltd and another v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad PLD 2011 Karachi 494.
5. Conversely, learned counsel for the respondent has supported the impugned decision and submitted that since the appellant did not commence its operation within 12 months from the issuance of licence by the respondents, hence violated the conditions as contained in clauses 3.1, 3.6 of the licence agreement, read with Regulation 9(8) of the PEMRA (TV/Radio Broadcast Operation) Regulation 2002. It has been contended by the learned counsel for the respondent that though extension of time was granted by the respondent to the appellant to start the operation of the channel upto 21st May 2010, however, the appellant failed to start the operation whereas no reasonable explanation was furnished for such default, hence according to learned counsel, authority was left with no option but to invoke the provisions of Section 30 (c ) of the Ordinance, 2002, which provides that if licensee fails to comply with any condition of the licence the respondent has the authority to revoke the licence of a broadcast media. Learned counsel for respondent has further argued that reference to the provisions of Section 29 by the learned counsel for the appellant is misconceived as it relates to violation of the provisions of law, whereas in the instant case the licence has been revoked for violation of the terms of the licence itself for which an action for the provisions of Section 30 (c) is attracted. It has been further argued by the learned counsel for the respondent that the ground of non-availability of the space and the capacity of the cable operators functioning on analog system is also not acceptable for the reason that when the appellant was granted licence on 22nd May 2008 there were hardly 57 channels, which were operational and were being displayed by cable operators. It has been further contended by the learned counsel that mere inconvenience, business capacity some dispute of the broadcast operator with the cable operators regarding their capacity to carry the channel on cable network cannot justify the non-operation of the channel by the appellant within the stipulated period. Moreover, the appellant could have entered into an agreement with the cable operators by resolving their interse dispute if any. However, per learned counsel, since the appellant having no financial capacity did not consider it viable to make the channel operational during this period, whereas the lame excuse has been made if the appellant could not become operational on account of some fault on the part of the respondent. It has been argued by the learned counsel that in view of market competition and the large number of TV Channels, a licencee cannot be allowed to remain un-operational for indefinite period nor extension of time to become operational be allowed in violation of the terms of the licence agreement merely on the plea of some inconvenience or on the ground of some business expediency. It has been contended that the impugned decision, in view of hereinabove facts, does not suffer from any illegality, therefore, the appeal filed by the appellant is liable to be dismissed. In support of his contention, learned counsel for the respondent has placed reliance on the judgments reported as Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44 and Corporation of Calcutta v. Mulchand Agarwala PLD 1956 SC (India) 231.
6. I have heard both the learned counsel and perused the record. Before dilating upon merits of the instant appeal, it will be advantageous to examine the nature of the licence issued by the respondent in favour of the appellant under PEMRA Ordinance, 2002 for establishment and operation of broadcast media, and the relevant provisions of the Ordinance, 2002 which regulate issuance, renewal and revocation for the purposes of resolution of the controversy involved in the instant case.
(A) The term licence has been defined in Section 2(m) of PEMRA Ordinance, 2002, which reads as under:
“2(m) “Licence” means a licence issued by the Authority to establish and operate a broadcast media or distribution services.”
(B) Issuance of licence by the respondent authority for the establishment and operation of all broadcast media and distribution is regulated in terms of Section 19 of the PEMRA Ordinance, 2002, which reads as follows:
“19. Licence 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.
(2) No person shall engage in any broadcast media or distribution service except after obtaining a licence issued under this Ordinance.
(3) Every licence shall be subject to such terms and conditions as may be prescribed.
(4) The Authority shall have the power to determine number of licences 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 licence and for its annual renewal.
(5) The Authority shall devise a Code of Conduct for programmes and advertisements for compliance by the licensees.”
(C) The terms and conditions of such licence issued under the PEMRA Ordinance, 2002 have been defined in Section 20 of the PEMRA Ordinance, 2002, which reads as follows:
“20. Terms and conditions of licence.—A person who is issued a licence under this Ordinance shall:-
(a) ensure preservation of the sovereignty, security and integrity of the Islamic Republic of Pakistan;
(b) ensure preservation of the national, cultural, social and religious values and the principles of public policy as enshrined in the Constitution of the Islamic Republic of Pakistan;
(c) ensure that all programmes and advertisements do not contain or encourage violence, terrorism, racial, ethnic or religious discrimination, sectarianism, extremism, militancy, hatred, pornography, obscenity, vulgarity or other material offensive to commonly accepted standards of decency;
(d) comply with rules and regulations made under this Ordinance;
(e) broadcast if permissible under the terms of its licence, programmes in the public interest specified by the Federal Government or the Authority in the manner indicated by the Government or, as the case may be, the Authority, provided that the duration of such mandatory programmes do not exceed ten per cent of the total duration of broadcast or operation by a station in twenty-four hours except if, by its own volition, a station chooses to broadcast such contents for a longer duration;
(f) comply with the codes of programmes and advertisements approved by the Authority appoint an in-house monitoring Committee, under intimation to the Authority, to ensure compliance of the Code;
(g) not broadcast or distribute any programme or advertisement in violation of copyright or other property right;
(h) obtain NOC from Authority before import of any transmitting apparatus for broadcasting, distribution or teleporting operation.
(i) not sell, transfer or assign any of the rights conferred by the licence without prior written permission of the Authority.
(j) not broadcast video footage of suicide bombers, terrorists, bodies of victims of terrorism, statements and pronouncements of militants and extremist elements and any other act which may, in any way, promote, aid or abet terrorists activities or terrorism;
(k) ensure that no anchor person, moderator or host propagates any opinion or acts in any manner pre-judicial to the ideology of Pakistan or sovereignty, integrity or security of Pakistan.
(l) not broadcast any programme inciting violence or hatred or any action prejudicial to maintenance of law and order;
(m) not broadcast anything which defames, or brings into ridicule the Head of State, or members of the armed forces, or executive, legislative or judicial organs of the state;
(n) not broadcast any programme or discussion on a matter which is sub-judice; and
(o) not broadcast anything which is known to be false or baseless or is malafide or for which there exist sufficient reasons to believe that the same may be false, baseless malafide.”
(D) Similarly, filing of application for issuance of licence, its refusal and validity is regulated in terms of Section 24 of the PEMRA Ordinance, 2002, whereas Section 25 of the PEMRA Ordinance, 2002 defines certain persons, who cannot be granted licence under the PEMRA Ordinance, 2002. Sections 24 and 25 of the said Ordinance are reproduced hereunder:
“24. Licence, application, issuance, refusal and validity.—(1)Any person desirous of obtaining a licence for establishment and operation of broadcast media or a distribution service shall apply to the Authority in such manner and form as may be prescribed.
(2) The Authority shall process each application in accordance with prescribed criteria and shall hold public hearings in the respective provincial capitals of each Province, or as the case may be, Islamabad, before granting or refusing of the licence.
(3) Each application shall be accompanied by such fee as the Authority may prescribe.
(4) A Licence shall be valid for a period of five, ten or fifteen years subject to payment of the annual fee prescribed from time to time.
(5) The Authority may renew a licence on such terms and conditions as may be prescribed, and in case of refusal to renew a licence reasons shall be recorded in writing.
25. Certain persons not be granted licence.—A licence shall not be granted to:-
(a) a person who is not a citizen of Pakistan or resident in Pakistan;
(b) a foreign company organized under the laws of any foreign Government;
(c) a company the majority of whose shares are owned or controlled by foreign nationals or companies whose management or control is vested in foreign nationals or companies (; or)
(d) any person funded or sponsored by a foreign Government or organization including any foreign non-governmental organization.
(E) Section 29 of the PEMRA Ordinance, 2002 authorizes the authority to enter the premises of a broadcast media or distribution service operator, through its officer or its nominee for the purposes of inspection and investigation, and if the facts so warrant, to seize its broadcast or distribution service equipment, seal the premises after issuing a show cause notice and also to impose fine upto ten million rupees on a licensee who contravenes any of the provisions of the PEMRA Ordinance, 2002 or the rules or regulations made thereunder. Section 29 of the said Ordinance, reads as follows:
“29. Power to authorize inspection.—(1) The Authority may authorize any of its officers or its nominees to enter the premises of a broadcast media or distribution service operator for purposes of inspection.
(2) A broadcast media station or distribution service premises shall, at all reasonable times, be open to inspection by an authorized officer under sub-section (1) and the licensee shall provide such officer with every assistance and facility in performing his duties.
(3) The authorized officer shall, within forty-eight hours of the inspection, submit his inspection report to the Authority.
(4) The Authority may authorize any of its officers to undertake investigation, in the manner it may prescribe, in any matter with regard to its functions and to seek any specific information, from any person, which the Authority may deem useful in order to enable it to determine and dispose of such matter.
(5) The Authority or as the case may be the Chairman after issuing a show-cause notice to a broadcast media or distribution service may seize its broadcast or distribution service equipment, or seal the premises, which is being used in contravention of the provisions of this Ordinance or the rules made thereunder or any other law.
Provided that the equipment shall be returned to the holder of a valid licence after imposing on him such penalty as the Authority may determine by Pakistan Electronic Media Regulatory Authority (Amendment) Ordinance, XXVII of 2007, (4.6.2007).
12[Provided further that the Authority or the Chairman may seize a broadcast or distribution service equipment or seal the premises which is operating illegally or in contravention of orders passed under section 30.]
(6) The Authority may, after the licensee has been, given reasonable opportunity to show cause, impose fine up to ten million rupees on a licensee who contravenes any of the provisions of this Ordinance or the rules or regulations made thereunder.
(F) Section 30 of the PEMRA Ordinance, 2002 authorizes the authority to revoke or suspend the licence of a broadcast media or distribution service by an order in writing on one or more of the grounds as mentioned in the aforesaid section. Provisions of Section 30 are reproduced hereunder for the sake of relevance.
“30.Power to vary conditions, suspend or revoke the licence.—(1) The Authority may revoke or suspend the licence of a broadcast media or distribution service by an order in writing on one or more of the following grounds, namely:-
(a) the licensee has failed to pay the licence fee, annual renewal fee or any other charges including fine, if any;
(b) the licensee has contravened any provision of this Ordinance or rules or regulations made thereunder or an order passed under section 27;
(c) the licensee has failed to comply with any condition of the licence; and
(d) where the licensee is a company, and its shareholders have transferred a majority of the shares in the issued or paid up capital of the company or if control of the company is otherwise transferred to persons not being the original shareholders of the company at the time of grant of licence without written permission of the Authority.
(2) The Authority may vary any of the terms and conditions of the licence where it deems that such variation is in the public interest.
(3) Except for reason of necessity in the public interest a licence shall not be varied, or revoked under sub-section (1) or sub-section (2) unless the licensee has been given reasonable notice to show cause and a personal hearing.
(4) Notwithstanding anything contained in sub-section (5) of section 29 or any other provision of this Ordinance, where the Authority takes action under sub-section (3) without notice by reason of necessity in the public interest, the Authority or the Chairman, as the case may be, may seize broadcast or distribution service equipment or seal the premises of the licensee.
Provided that in a situation of emergency the Authority or the Chairman may direct closure of any broadcast or distribution network for such period as it may determine.”
7. After having examined the aforesaid statutory provisions of the PEMRA Ordinance, 2002, and the material placed on record by the parties facts of the instant case may be examined to resolve the controversy involved. In the instant matter it has come on record that the appellant M/s Recorder TV Networks (Pvt) Ltd. “AAJ Entertainment” was issued a Satellite T.V. Broadcast Station Licence on 22nd May 2008 by the respondents for 15 years. In view of Condition No.3.1 of the “Licence Terms and Conditions”, appellant was required to commence its licence service within 12 months of issuance of licence and to inform the authority one month in advance of the start of the service. The appellant could not start its operation within the stipulated period, hence applied for renewal of the licence and requested for extension of time to start its operation, which request was acceded by the respondents and extension upto 21st May 2010 to start the operation was granted. The appellant for certain reasons could not start its operation, however, in response to letter dated 1st April 2010 issued by respondent in respect of Annual Renewal Licence Fee for the year 2010-2011, paid an amount of Rs.7,00,000/- through pay order, whereas in response to another letter dated 1st March 2011 issued by the respondent Authority on the same subject, paid another amount of Rs.7,00,000/- through pay order for the year 2011-2012 by validating the licence upto 22nd May 2011. Inspite of having received the Licence Renewal Fee from the appellant for the period 2010-2011 and 2011-2012 as referred to hereinabove, respondent issued a Notice dated 1st September 2010 calling upon the appellant to show cause as to why the licence granted to the appellant may not be revoked under Section 30 of the PEMRA Ordinance, 2002 and the date of hearing was fixed on 20.9.2010. Show cause notice was duly responded by the appellant through reply dated 15.9.2010, however, the hearing was ante-dated to 17.9.2010, which prompted the appellant to file a Constitution Petition i.e. C.P. No.D-2661 of 2010 before a Division Bench of this Court. Such petition was disposed of vide order dated 11.10.2011 with the direction to the appellant to exhaust the remedy as provided under the law before the relevant forum. After disposal of the petition in the aforesaid terms the respondent called upon the appellant for personal hearing on 8th December 2011 to explain their position as to why company is still unable to start its operation and the appellant reiterated the contents of their earlier written reply and submitted that since there are more channels which are being shown by cable operators than the capacity of the cable networks based on analog system, therefore, the channel of the appellant could not be put to operation. However, the respondents by referring to earlier proceedings and to the minutes of their 70th Meeting held on 25th July, 2011, declined to entertain the reply of the appellant and revoked the licence of the appellant through impugned order in the following terms:
“6. The Authority after considering the matter in detail, unanimously resolved the revocation of the licence of M/s Recorder TV Networks (Pvt) Ltd.”AAJ Entertainment” under section 30 of PEMRA Ordinance 2002 (Amendment Act 2007).
7. Therefore, M/s Recorder Television Network (Pvt) Ltd. is requested to surrender the licence of the channel “AAJ Entertainment” in original within ten (10) days of the issuance of this letter.”
8. It is pertinent to note that in the impugned show cause notice issued by the respondents there is no charge or allegation against the appellant for having violated any of the statutory provision of the PEMRA Ordinance, 2002 or the terms and conditions of the licence agreement dated 22nd May, 2008, except alleged violation of condition No.3.1, which required a licensee to commence its licensed service within 12 months of the issuance of the licence. Reference to Condition No.3.6 has been made by the respondents while revoking the licence of the appellant, which provides that if licensee fails to put into operation the broadcast station within a period of one year from the date of its issuance, the licence shall be deemed to have been withdrawn and cancelled. However, it may be observed that in the instant matter the respondents themselves did not opt for invoking the condition No.3.6 on the expiry of 12 months period from issuance of licence in favour of the appellant on 22nd May, 2008 and instead, granted extension and renewed the licence for the 2010-2011 and 2011-2012 by accepting Annual Renewal Fee of Rs.7,00,000/- for each year. From conduct of the respondent Authority in the instant matter, it is seen that the respondent did not choose to resort to Condition No.3.1 or to invoke Condition No.3.6 of “licence terms and conditions” within the stipulated period which in the instant matter expired on 21st May 2009. It is equally pertinent to note that the appellant on the written request of the respondent for payment of Renewal Fee of the aforesaid licence for the year 2010-2011 and 2011-2012 has paid substantial amount towards Renewal Licence Fee i.e. Rs.7,00,000/- for each year. It will not be out of place to observe that in response to show cause notice issued by the respondent Authority the appellant expressed its willingness to make its channel operational, however, subject to availability of place available with cable operators, who according to appellant had already exceeded their respective maximum channel capacity, hence unable to broadcast additional channels. A proposal was also made by the appellant to the effect that instead of launching “Aaj Entertainment” on a separate beam, the beam may be splited between two channels i.e. “Aaj Entertainment” and another channel of appellant i.e. “Play TV”, which according to appellant was already operational and uplinked on Paksat. Several other technical factors were also pointed out by the appellant in their written reply to the show cause notice issued by the respondent, which according to appellant were infact great hurdles on the part of respondent and instrumental in causing delay in making the channel operational by the appellant. However, from impugned order dated 25.2.2012 passed by the respondent, it is seen that no response to such objections whatsoever, has been made, whereas by referring to some decision taken by the authority of its 70th Meeting held on 25th July, 2011, wherein it was decided to revoke the licence of the appellant, licence of the appellant has been cancelled under Section 30 of PEMRA, Ordinance, 2002. It reflects that reasonable opportunity of being heard, particularly after disposal of the C.P. No. D-2661 of 2010 vide order dated 11.10.2011, was not awarded by the respondent to the appellant in the instant case, whereas the impugned order does not contain valid and sufficient reasons to justify an extreme act of cancellation of licence of the appellant. Admittedly, appellant has invested huge amount to establish a Satellite TV Broadcast Station (Channel) and has also regularly making payment of a substantial amount of Rs.7,00,000/- per year, towards yearly renewal of licence fee upto the year 2011-2012.
9. Under similar circumstances, in the case of Independent News Papers Corporation (Pvt.) Limited v. Pakistan Electronic Media Regulatory Authority (F.A.O. No.47 of 2011), the learned Judge of Islamabad High Court granted relief to the aforesaid TV Channel by setting aside the order passed by PEMRA whereby the licenceissued to the channel was cancelled by resorting the provisions of Section 30 of PEMRA Ordinance, in the following manner:-
“16. It might not be out of context to mention that the preamble of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 demonstrates that the major objective of the Ordinance was to regulate electronic media in Pakistan. IN addition to above the following goals were also mentioned therein:
i. improve the standards of Information, Education and entertainment;
ii. enlarge the choice available to the people of Pakistan in the media for news, current affairs, religious knowledge, art, culture, science, technology, economic development, social sector concerns, music, sports, drama and other subjects of public and national interest;
iii. facilitate the devolution of responsibility and power to the grass-roots by improving the access of the people to mass media at the local and community level; and
iv. ensure accountability, transparency and good governance by optimizing the free flow of information.
It is to be remembered that the above preamble covers all the organs of the society. The situation which crystallizes is that it is the fundamental responsibility of the Respondent/PEMRA to achieve the goal of preamble. It is disquieting to notice that for issuance of licencethe Respondent is receiving the huge amounts as well as annual renewal fee, therefore, it was duty bound to facilitate all its licensees and it should be create undue obstacles.
17. In the light of scenario as portrayed hereinabove, both these appeals are accepted and both the impugned orders/Notifications are set aside to the extent of Appellant only. Consequently, Respondent is directed to do the needful within one month positively for change of medium of language from English to Urdu and change of name of the Appellant’s licensed channel from Geo English to Geo Tez. However, the Appellant would be bound to pay any fee required under the law for said purpose.”
10. Similarly, in Civil Appeal No.599 of 2012 and Civil Petition No.1189 of 2012, in the case of Mohammad Akbar Khan, CO Roze (Pvt.) Limited (Roze T.V) and another, and Jamiluddin, EO, Zam TV Network and others v. Pakistan Electronic Media Regulatory Authority (PEMRA) & another, vide order dated 3.10.2012, under similar facts and circumstances the Honourable Supreme Court of Pakistan has granted the relief to the aforesaid T.V. channels by setting aside the order of cancellation of licenceissued by PEMRA in the following terms:-
“….. In the case of Independent News Papers Corporation (Pvt.) Ltd (ibid) the licence of the Channel was cancelled for the reason that the licencee had failed to launched transmission within stipulated period of one year as per clause 3.1 of the Licencedespite issuance of show cause notice and personal hearing. Islamabad High Court, while dealing with above case set aside the order for cancellation of the licence on the ground that the licence was cancelled after more than one year after the alleged personal hearing and it was the duty of the Respondent to revoke the licence forthwith or to issue fresh show cause notice. It was further observed that the provision of section 29(6) of the Ordinance clearly provided that in case of breach of any provision of Ordinance, the Authority may inflict fine, which is applicable for the entire Ordinance. In the instant case the show cause notice was issued on 1.9.2010 and the alleged personal hearing was done on 17.9.2010 whereas the licence was cancelled vide order dated 29.7.2011 after a considerably long period, therefore, the High Court was not justified in declining to grant relief to the Appellant on this ground as well. Especially, after granting relief to the some other Appellants, the High Court should have not declined the same relief to the present Appellants.”
11. Perusal of the Statutory provision as reproduced hereinabove and the ratio of the Judgment (supra) shows that the issuance of Satellite T.V. Licence, its terms and conditions, renewal, suspension and revocation is governed under the aforesaid provisions of the PEMRA Ordinance 2002. Accordingly the contention of the learned counsel for the Respondent whereby it has been stated that the licence of the Appellant has been cancelled on violation of the terms of the licence under section 30 of the PEMRA Ordinance and not for the violation of the provisions of the Ordinance 2002, appears to be misconceived. It may be observed that licence issued by PEMRA, either to Satellite T.V. Channels or to Cable T.V. Operators, is governed under the provisions of the PEMRA Ordinance 2002, whereas the terms of such licence are required to be determined and shall be governed in consonance to the provisions of the PEMRA Ordinance, 2002, keeping in view the purpose for which such enactment has been made. Similarly, in case of any violation of the terms of the licence agreement, a reciprocate action, keeping in view the gravity of the violation and its impact upon the scheme of law, rules and regulations, has to be taken into consideration, by referring to the provisions of PEMRA Ordinance 2002, whereas direct resort to the provisions of Section 30(1)(c) of the PEMRA Ordinance in all cases, without resorting to provisions of Section 29 of the PEMRA Ordinance, 2002, is to be avoided.
12. In the instant case the only reason shown in the show cause notice as well as in the impugned order passed by the respondent Authority is that since the Appellant has not started its broadcast operation within the stipulated period hence violated the terms of the licence agreement as contained in clause 3.1 and 3.6. No resort to Section 29 of the PEMRA Ordinance, 2002 has been made by the Respondent before invoking the provisions of Section 30(1)(c), whereby most harsh action as provided under the PEMRA Ordinance, 2002 has been taken against the Appellant. On a query of this Court, the learned counsel for the Respondent has frankly stated that except in the case of the present Appellant, the licence of Satellite TV Channels which were cancelled by the Respondent under Section 30(1) (c) have duly been restored by the orders of Islamabad High Court and the Honourable Supreme Court, including the case of Independent News Paper Corporation, Roze TV and Zam T.V Network. It will not be out of place to observe that the Respondents have not been able to establish as to whether the Appellant was in fact not in a position to start its operation or did not have the necessary paraphernalia and financial status to make the channel operational. On the contrary, it has come on record that the Appellant continued to express willingness to make the channel operational provided proper frequency and the space is allocated by the Cable Operators for such purpose. During the course of the arguments, learned counsel for the Appellant under instructions of his client has stated that if the licence of the Appellant is restored the Appellant will instantly start operation of its Channel “AAj Entertainment” even under existing conditions.
13. In view of herein above, I am of the opinion that under the facts and circumstances of the instant case, the Respondent Authority was not justified to invoke the provisions of Section 30(1)(c) of the PEMRA Ordinance, 2002 against the Appellant, particularly without resorting to the provisions of Section 29 of the PEMRA Ordinance, 2002. Moreover, the impugned order does not satisfy the parameters as contained in clause 24-A of the General Clauses Act, as it does not contain any valid reasons. Accordingly, the impugned order passed by the Authority is hereby set-aside, the Respondent is directed to restore the licence of the Appellant subject to payment of Renewal Fee for the year 2012-2013 and after fulfillment of all the codal formalities in this regard. The Appellant shall start its operation within thirty days from the date of restoration of its licence by the respondents, failing which the Respondents shall be at liberty to proceed against the Appellant in accordance with law.
Instant Miscellaneous Appeal stands disposed of in the above terms along with listed application.
JUDGE