Through the instant writ petition the petitioner, Messrs Thal International Airwaves (Pvt.) Limited, has called in question the cancellation of the license to establish F.M. Radio Station at D.G. Khan, vide order dated 23.06.2006.
2. Brief facts of the case are that the petitioner/company, Messrs Thal International Airwaves (Pvt)
Limited, had been allowed license on 27.01.2004 for a period of ten years for establishing F.M. Radio Stations at D.G. Khan. It is submitted that the F.M. Radio Stations at Muzaffargarh and Layyah were allocated the frequencies by Frequency Allocation Board and both the stations commenced their transmissions within one year of allocation of frequencies but the frequencies for the D.G Khan was not allocated, as such, the petitioner submitted reminder to the respondents for allocation of the frequencies vide letter dated 8.06.2005 Annexure-C. Instead of allocation of the frequencies, the respondents on 27.04.2006 issued a show-cause notice Annexure-D, thereafter the license of the petitioner for D.G. Khan was cancelled on 23.06,2007 Annexure-E.
3. The learned counsel for the petitioner states that according to Rule 9 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 the license is valid for a period of one year after the allocation of the frequency. The commencement of the operation of transmissions of F.M. Radio Station was to be stipulated within a period of one year and the period would commence from the date of the allocation of the frequencies to the petitioner/company. In the instant case as is apparent from Annexure-D the show-cause notice, the frequency had been granted on 30.12.2005, as such, the license could not have been cancelled uptill 29.12.2006 but the respondents had, with mala fide intention issued the show-cause notice on 27.04.2006 and thereafter on 23.06.2006 had cancelled the license in violation to the clause, as such, the petitioner/company cannot be penalized. The petitioner/company had already started the test transmissions even before the grant of allocation, the regular transmissions could not begin on account of non-allocation of the frequencies by the respondents.
4. On the other hand, learned counsel for the respondents has opposed this petition on factual as well as legal grounds. Firstly, it is stated that this petition is not maintainable as the petitioner is not the Chief Executive of the Company and is not authorized to file the instant petition; that the petitioner has not attached any resolution of the Board of Directors authorizing him to file the instant petition. It is further stated that according to Rule 27(2) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, the petitioner/company cannot change its share holdings without prior approval of the Authority which states as under:-- "27. Mergers and transfers:--(1)
(2) A person who is the shareholder of, or owns an interest in, a company which is a licensee, shall not transfer or dispose of his shares or the interest, without the prior approval of the Authority.
5. In the instant case the petitioner/company had not sought any approval from the respondents.
Further in view of the violation of Rule 27 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, it is the clear proof that the petitioner/company has approached this Court with unclean hands, as such, this petition merits dismissal straightaway and the above mentioned violation in addition has prompted the issuance of the cancellation of all the licenses of the petitioner/company on account of this even that of Muzaffargarh and Layyah for which the respondents/Authority reserves the right to initiate cancellation proceedings. If is further stressed that the 'frequencies allocation number under Section 42 is to be allocated by the Telecommunication Authority PEMPRA has no power to allocate the frequency as such, the petitioner was to apply to the Telecommunication Authorities, it was not the duty of the PEMPRA.
Further that previously 'also the license had been issued and the petitioner has simultaneously approached the Tele Communication Authorities regarding 'Muzaffargarh and Layyah, which was done within the stipulated period.
The instant case of D.G. Khan, the petitioner/company filed the application before the Tele Communication Authorities on 08.06.2005 and the letter, which the petitioner is ascribing as reminder. Annexure C with the writ petition, was in fact an application to the Tele Communication Authorities for allocation of the frequency, which was made after almost one and half years of the grant of license and by virtue :of condition 34 of the license, the license of the petitioner/company had already stood expired as cancelled. Even after this the respondents had 'taken a sympathetic view and six months' grace period was allowed to the petitioner/company. Further that the petitioner/company had not been able to satisfactorily establish their arrangements, they were using the facility of M/s. Friends Media Cable Net Work, D.G. Khan, even their transmissions in Muzaffargarh was not functioning properly according to the inspection being carried out by the Field Supervisor as is apparent from Annexure-E with the reply, letter dated 24.07.2006.
According to the allocated license the petitioner/company was to start their transmissions from 14.08.2006 when the petitioner/company was asked why they failed to start their frequency, the Chief Executive of the petitioner company submitted that due to the lengthy process to start operation, some of the directors left the company which created financial constraints and company was not in a position to start the services. The company remained in search of financers to establish the FM stations at D.G. Khan. Now company has found financers and has placed order for purchase of equipment. If Authority permits the transfer of management & operation to financing companies or financier inclusion in the Board of Directors then the operation can be started by 14th August 2006. The company representative was asked to provide the proof for purchase of equipment within 7 days, which they failed, as such the petitioner/ company itself is to be blamed. The said cancellation has rightly been made. Further that the doctrine of approbate and reprobate would apply to the case of the petitioner/company.
6. Arguments heard, record, perused.
7. That according to Condition No, 34 of the license issued to the petitioner/company, it was required to commence broadcast operation within a period of one year from the date of issue of license. The petitioner/company was not able to start the transmissions .The contentions of the petitioner/company that the period of one year was to commence from the date of allocation of the frequency. It is apparent that the frequency was not to be allocated by the respondents, the same was to be allocated by the Tele Communication Authorities, for which the respondents cannot be blamed. The petitioner applied for the allocation of the frequency for the first time on 08.06.2005 i,e, after one and a half year of the issuance of the license, as such, the petitioner/ company had defaulted in compliance of Condition 34 of the license, which entailed the starting of the transmissions within one year's period. Further the respondents had even after the expiry period, had accommodated the petitioner/company and allowed six months grace period to the petitioner/company. The petitioner/company has not been able to obtain the allocated frequency from the Pakistan Tele Communication Authority within the said stipulated period as the said frequency had been allocated to the petitioner/company on 30.12.2005 although the license had been issued to the petitioner/company on 07.01.2004, as such, the respondents cannot be blamed.
It appears that the petitioner/company was not in a financial position to become operational as is apparent from Annexure-E attached with the reply. In the above perspective, cancellation of the license dated 23.06.2006 has rightly been issued. The respondents have not committed any illegality in the same, so as to invoke the Constitutional jurisdiction of this Court.
The learned counsel for the petitioner has not been able to point out any illegality or infirmity in the impugned order dated 23.6.2006. Reliance can be placed to the case of Nadira Kaiser and others vs. Chairman, Karachi Cantonment Board and another (2004 CLC 1872) where it has been held that the party who had failed to perform its obligation according to law, is not entitled to discretionary relief under Article 199 of the Constitution of Pakistan, 1973.
In view of the above, this writ petition is dismissed.