TELECARD LIMITED Versus FEDERATION OF PAKISTAN through Secretary Ministry of Information and Technology
SHAHNAWAZ TARIQ, J.--- Through the captioned Constitutional petition, the petitioner Telecard Limited has impugned the order dated 29.05.2012, issued by the respondent No.2. The petitioner has sought following reliefs:- a) Set aside/quash the impugned notice/ order dated 29.05.2012, issued by the respondent No.2. b) Restrain the respondent No.2 from taking any coercive action against the petitioner pursuant to the impugned notice/order. c) Grant any further relief to which the petitioner is found entitled to in the circumstances, in the interest of justice, equity and fairness.
3. The relevant facts spelt out from the instant petition are that the petitioner was granted a Wireless Local Loop Licence (WLL Licence) by the respondent No.2 to provide WLL services utilizing the 450 MHz and 1900 MHz frequency spectrum in different regions within Pakistan. The WLL License of the petitioner was issued for the period of 20 years through an auction in 2004 which was in turn assigned to its WLL License. The said spectrum was granted to the petitioner against the payment of an Initial Spectrum Fee (ISF) for the amount of Rs.3,171,000,000/-, where 50% of such ISF amounting to Rs.1,585,500,000/-, was paid at the time of the grant of the spectrum and 50% of the balance of ISF was to be paid in 12 months.
4. It is further averred that petitioner preferred representations to the respondent No.1 for time and again seeking concession in payment of 50% of the balance of ISF because the petitioner was facing hardships in developing WLL industry into a profitable and viable model and one of the causes was the grant of numerous cellular mobile licences by the respondents. It is stated that the respondent No.1 considering the obstacles being faced by the petitioner and WLL industry as a whole, formulated a policy where the petitioner would be required to pay 50% of the balance of ISF in 10 equal annual installments, including a moratorium of 4 years for the start of such payments. The said policy framed by the respondent No.1 was duly approved by the Economic Co-ordination Committee (ECC) of the Cabinet vide its decision dated 05.05.2006, which was communicated to the petitioner, but such communicated decision only stated that a 4 year' moratorium had been granted and did not mention about the installments of 50% of the balance of ISF.
5. It is further asserted that petitioner since the year 2008 kept the respondents fully informed through several letters and meetings about the grave situation being faced by the petitioner and sought out a workable solution and proposed installment plan for the balance of ISF. The respondent No.1 vide letter dated 24.02.2010, requested the respondent No.2, to furnish comments and recommendations on priority for a judicious settlement of the issue. The respondent No.2 furnished its comments on 15.04.2010, and simultaneously raised demands on 10.03.2010 and 30.03.2010, and then initiated proceedings against the petitioner through the issuance of a show-cause notice dated 02.06.2010, seeking recovery of the entire 50% of the balance of ISF. The respondent No.2 took the stance that the moratorium was granted by a decision of ECC, as such the respondent No.2 was not competent to consider the same as extended or revised unless the same was approved by ECC or Cabinet of the Government of Pakistan. The petitioner continued raising objections that while the matter was being considered by the respondent No.1, the recovery proceedings should be held in abeyance, but the respondent No.2 continued with the recovery proceedings and issued a final enforcement order dated 03.06.2011, which was impugned vide FAO No.37 of 2011, before the Islamabad High Court, and the said appeal was declined vide judgment dated 22.05.2012.
6. It is also averred that a meeting was convened on 10.08.2011, where the Chairman of respondent No.2 was also present, whereby the representations of the entire WLL industry vide letter dated 01.02.2010, were taken into consideration, and the industry through one of the WLL operators had extended two concessions; a) staggering 50% of the balance payments of ISF into ten installments, and b) a moratorium in payments till 2014 allowing for the installments to be paid in the last ten years of the Spectrum and License term. The respondent No.1 considering the issues of APC and ISF payments took decisions in the said meeting which is reflected in the minutes of the meeting issued on 22.08.2011. The termination of the petitioner's WLL License vide the impugned notice/order is a patent violation of the section 8 of the Pakistan Telecommunication (Re-organization) Act, 1996.
7. Learned counsel for the petitioner submitted that the petitioner is a WLL licensee and 50% of the ISF was paid at the time of grant of WLL licence by the petitioner and remaining 50% was to be paid in 12 months. He contended that due to obstacles being faced by the petitioner, several representations were made to the respondents for concession of the ISF and being convinced, the respondent No.1 formulated a policy whereby the petitioner would be required to pay 50% of the balance of ISF in equal installments over a period of 10 years, and a moratorium of four years before the commencement of such payment would have started. He further contended that upon expiry of the moratorium period, the petitioner continued the requests to respondents for a workable solution with regard to the payment of ISF, but the respondent No.2 on 02.06.2010, issued show-cause notice to the petitioner seeking recovery of the entire 50% of the balance of ISF. The petitioner challenged the said show-cause notice by filing FAO No.37 of 2011, but the final enforcement order was upheld by the Islamabad High Court vide judgment dated 22.05.2012. The petitioner also filed writ petition No.1258/2012 before the august Supreme Court which was disposed of vide order dated 10.08.2012.
8. Learned counsel for the petitioner submitted that the Islamabad High Court, vide its judgment dated 27.11.2013, had finally decided the dispute, whereby the 50% of the balance ISF was payable in accordance with the installment plan for staggering of outstanding ISF dues, and it was also held that until the Ministry issues a direction to the respondent No.2, it cannot take any coercive measures against the petitioner. He submitted that pursuant to the judgment of the Islamabad High Court dated 27.11.2013, the respondents held meetings with the petitioner to finalize the installment plan with regard to the 50% of the balance of ISF and thus the notice of the respondent No.2 has become invalid and liable to be set aside.
9. Learned counsel for the petitioner also submitted that the respondent No.2 has not followed the procedure laid down under section 9 of The Pakistan Telecommunication Rules, 2000, while issuing the impugned notice/order under section 23 of the Pakistan Telecommunication (Re-organization) Act, 1996, for termination of the petitioner's WLL Licence which can only be invoked in an event of grave and persistent contravention of the said license.
10. Learned counsel for the petitioner submitted that it is not mandatory for the petitioner to make payments of the various fee under the licence, but it is obligatory to provide un-interrupted telecommunication services and set up the specific infrastructure and if WLL licence is terminated, thousands of its users would be deprived of the service being provided by the petitioner. The Ministry and the ECC have condoned the non-payment of the 50% balance of the ISF in lump sum, and allowed the same to be paid in installments. Therefore, the non-payment of the said ISF cannot be deemed to be a grave and persistent default.
11. Learned counsel for the petitioner also submitted that the impugned notice/order prejudiced the petitioner's fundamental rights enshrined in Article 18 of the Constitution as well as is contrary to the scheme of the Pakistan Telecommunication (Re-organization) Act, 1996, which envisages the promotion and encouragement of telecommunication services, whereas the actions of respondent No.2 rather discourage the scheme and policies of the telecommunication sector. The respondent No.2 being the subordinate forum of the respondent No.1 is bound to reconsider the issue of ISF in the purview of letter dated 30.08.2011, issued by the Ministry which carried specific directives that staggering will be allowed. Therefore, the impugned notice/order issued by the respondent No.2, is liable to be set aside.
12. While controverting the contention raised by the petitioner, learned counsel for respondent No.2 vehemently contended that petitioner has committed a willful default in payments of its admitted liability, whereupon respondent No.2 issued a show-cause notice dated 02.06.2010, which was impugned by the petitioner in a writ petition No.4429/2010, but the same was dismissed vide order dated 07.12.2010, by the Lahore High Court, Rawalpindi Bench, as not pressed with the permission to the petitioner to raise all its objections in the proceedings pending before the respondent No.2. Thereafter, the respondent No.2 after affording full opportunity of hearing to the learned counsel for the petitioner vide its decision dated 03.06.2011, upheld the show-cause notice dated 02.06.2010, and directed the petitioner to pay its outstanding dues within seven days. Against the said decision, the petitioner filed a statuary appeal vide FAO No. 37/2011, which was dismissed by the Islamabad High Court vide judgment dated 22.05.2012, and maintained the show-cause notice dated 02.06.2010, and the decision dated 03.06.2011, by the respondent No.2, which attained finality as such the respondent No.2 terminated petitioner's WLL Licence vide impugned order dated 29.05.2012. The instant C.P has been filed by the petitioner to nullify the decision dated 22.05.2012, passed by the Islamabad High Court as such instant petition is not maintainable.
13. Learned counsel for the respondent No.2 also contended that the respondent No.1 allegedly formulated a policy under which petitioner was required to pay 50% balance of ISF in 10 equal annual installments. The ECC had granted only four years' moratorium and thereafter petitioner was liable to pay 50% of the balance of ISF without further installments. The four years' moratorium granted by the ECC expired on 17.03.2010, and the petitioner was liable to pay the balance amount in lump sum and not in 10 equal annual installments.
14. Learned counsel for the respondent No.2 submitted that allegedly the initial payment of 50% of the balance of ISF at the time of grant of WLL licence in the year 2004 was to be treated as payment for initial 10 years' period till the year 2014. The petitioner is a willful defaulter, having committed default in payment of 50% of the balance of ISF which was to be paid in 12 months after the initial payment of 50% in the year 2004.
15. Learned counsel for the respondent No.2 also contended that the petitioner has raised a number of factual controversies in the instant C.P which requires recording of evidence, as such same is not possible in the Constitutional jurisdiction of this Court. He further contended that the petitioner has failed to avail the alternate remedy of preferring the appeal to the authority or revision to the Federal Government as provided under section 7(2) and (3) of Act, 1996, within 30 days from the date of receipt of impugned notice dated 29.05.2012, as such instant C.P. is not maintainable. He relied upon 2003 CLD 1447.
16. Learned DAG fully supported the contentions raised by the learned counsel for the respondent No.2, and contended that the petitioner with ulterior motive has filed instant petition only to delay and defeat the outstanding 50% of the balance of ISF by filing petitions before the different Courts since the year 2004 and despite the directions issued by the Islamabad High Court, the petitioner has failed to pay remaining amount of the licence. He submitted that the representations moved by the petitioner had already been declined by the Ministry and the petitioner wants to re-open the past and closed transaction, hence, instant petition is liable to be dismissed.
17. Perusal of the available record and consideration of the arguments reflect that the petitioner was granted WLL Licence in the year 2004 by the respondent No.2 against the payment of ISF for the amount of Rs.3,171,000,000/-, and 50% of such ISF worth Rs.1,585,500,000/-, were paid at the time of the grant of the spectrum and 50% of the balance of ISF was to be paid in 12 months. The petitioner due to the alleged crises in WLL industry preferred representations to the respondents for concession. The respondent No.2 issued a statuary show-cause notice dated 02.06.2010, under section 23 of The Pakistan Telecommunication (Re-organization) Act, 1996, to the petitioner with regard to the non-payment of 50% of the balance of ISF. The petitioner challenged the said notice by filing writ petition No.4429/2010, which was disposed of vide order dated 07.12.2010, with permission to the petitioner to participate in the legal proceedings pending before the respondent No.2.
18. It is also essential to mention that the respondent No.2 afforded an opportunity of hearing to the petitioner through its counsel and issued final enforcement order dated 03.06.2011. The petitioner impugned the said decision of the authority and preferred appeal under section 7(1) of Pakistan Telecommunication (Re-organization) Act, 1996, vide FAO No.37/2011, before the Islamabad High Court. After hearing the parties, the said petition was dismissed by the Islamabad High Court vide order dated 22.05.2012, which had attained finality. The operative part of the order is reproduced as under:-
"At this juncture, it would not be out of place to mention that vide latter dated 5th May, 2006, Cabinet Division had conveyed the decision of Economic Coordination Committee, wherein, it was mentioned that ECC has granted concession of 4 years moratorium to WLL operators but in the said letter, it was no where mentioned that WLL operators have been granted concession to pay balance 50% initial spectrum fee in installments. Appellants have also placed on record a copy of letter dated 30th August, 2011, whereby PTA was asked to submit an installment plan for staggering of APC and ISF (Initial Spectrum Fee) contributions after consultations with the operators, however, learned counsel for the respondent in this regard argued that the said letter does not relate to the appellants and the same relates to the auction of new WLL licence."
In view of the above perspective, I am constrained to hold that the captioned FAOs are without merits. Resultantly, all the three FAOs stands dismissed."
19. The petitioner approached the Hon'ble Supreme Court of Pakistan and filed Civil Petition No.1258 to 1260 of 2012, which were all dismissed. The operative part of the order dated 10.08.2012, passed by the august Court is reproduced as under:-
"3. We have gone through the record and considered the submission made by the learned counsel for the petitioners.
4. Where a directive has been issued by the Ministry and as per contention of the learned counsel for the petitioners, the Regulatory Authority is bound thereby, let the Ministry which is at the peak of the hierarchy, enforce it. Let it also resolve the controversy whether it does or does not concern the petitioners.
5. In this view of the matter, the learned counsel for the petitioners does not press these petitions and thus wants to approach the concerned Ministry for the redressal of the grievance."
20. The petitioner also filed Writ Petition No.1585 Of 2012, before the Islamabad High Court for the implementation of the directives dated 30.08.2011, for making the staggered payment of outstanding ISF, which was dismissed vide judgment dated 10.08.2012. The operative part of the judgment is reproduced as under:-
"7. The Petitioner does not contest liability of 50% outstanding initial spectrum fee but only questioned modus operandi of its payment. It is an admitted position that the provided installment plan for staggering of outstanding APC & ISF dues. The Hon'ble apex Court vide judgment dated 10.08.2012, passed in C.P. No.1258 to 1260 of 2012, observed that Ministry is at the peak of hierarchy and its policies are binding upon the regulatory authority i.e. PTA, therefore, the respondent No.1 [PTA] is under legal obligation to abide by and adhere to Policy Directive dated 30th August, 2011. It is the respondent No.2, who shall ensure the payment of ISF and in case of default, can issue a direction to the respondent No.1-PTA to take coercive measures. It is made clear that respondent No.1 itself cannot assume the jurisdiction not conferred on it under the act or the license.
8. In view of above, all the three writ petitions are disposed of with direction to the petitioners to make payment in accordance with policy directive to the respondent No.2 within a period of thirty days of the passing of this judgment. No order as to costs."
21. At this juncture, we would like to refer the above cited identical case of M. A. Kareem Iqbal v. Presiding Officer, Banking Court No.III and 4 others, 2003 CLD 1447, wherein it was observed as follows:-
"The maintainability of this Constitutional Petition is also rendered doubtful on another ground namely, where a Statue provides a self-contained machinery for determination of questions arising under the Statute and it also provides remedy by way of appeal or revision to another Tribunal or Court fully competent to give any relief, then an indulgence by this Court in accepting a Constitutional petitioner for assailing an impugned order passed by Tribunal or Court in contravention of the provisions made in the Statute will produce a sense of distrust in Appellate Forum/Court provided by the Statute. In such circumstances, a Constitutional petition would not be maintainable and it will be imperative for the aggrieved party to resort to the remedy of appeal provided under the Statute. A pronouncement to the above effect was made in the case of Mst. Kaniz Fatima v. Muhammad Saleem and 27 others, 2001 SCMR 1493 and it will be appropriate to reproduce the relevant portion from the cited judgment appearing on page 1504, as under:-
"...By now it is well settled that where a particular statute provides a self-contained machinery for the determination of question arising under the Act as and where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by the High Court is bound to procedure a sense of distrust in statutory Tribunals. Where, therefore, a petitioner without exhausting his remedy provided by the statute under which he complained had filed a writ petition, it was held that the application in the circumstances would not lie."
22. From the perusal of order and judgments passed by the Lahore High Court, Islamabad High Court and the august Supreme Court, demonstrate that the petitioner has already agitated almost identical grounds and claims before the superior Courts and failed to get any advantageous verdict in its favour. Thereafter the petitioner by the concealment of certain relevant facts preferred the instant petition for the similar nature reliefs which have been already declined by the superior Courts. Even the petitioner has failed to produce any cogent material before this Court as well as the Lahore High Court regarding the petitioner being allowed to pay 50% of the balance of ISF in 10 equal installments. Consequently, we have no hesitation to observe that no fresh ground or convincing material have been placed by the petitioner for consideration in support of its assertions.
23. It is well settled that when an alternate and efficacious remedy is already provided to the petitioner in relevant laws pertaining to the subject controversy and instead of availing such appropriate remedy, the petitioner invokes the Constitutional jurisdiction of the High Court with sole motive to defeat and delay the rights of the respondent, then such petition should not be considered compassionately, as per the maxim of the equity that he who claims equity must come with clean hands.
24. It is significant to mention that the contention raised by the counsel for the petitioner that cancellation and termination of WLL Licence will deprive thousands of its users, prima facie, reflects that the petitioner has been carrying its business since the year 2004. Admittedly, WLL Licence was granted by the respondent No.2 and the petitioner by committing default in payment of 50% of the balance of ISF, being public money as such has in fact caused huge losses to public exchequer. It is duty of the Court to make sure that such an action should neither be tolerated nor allowed to be continued.
25. As the sequel of the facts, reasons and discussion made supra, the instant petition being devoid of any legal substance stands dismissed along with the pending miscellaneous applications, if any, with no order as to cost.
MH/T-2/Sindh Petition dismissed.