' SYED HASAN AZHAR RIZVI, J.--- This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed by petitioner Financial Broadcasting Service (Pvt.) Limited seeking relief to immediately issue licences for FM Radio Broadcast Stations at Karachi and Peshawar.
2. Mr. Ijaz Ahmed learned counsel for the petitioner argued that respondent invited expressions of interest for establishment of FM Radio Broadcast Station (Phase 3) through print media as well as its website in which petitioner submitted its expression of interest and pre-qualified the petitioner for participating in the bidding for FM Radio Broadcast licences for various cities in Pakistan. He argued that petitioner participated in the bidding process and submitted its bid for FM Radio Broadcast Stations at Karachi and Peshawar for Rs,8,500,000 and Rs,2,000,000 respectively and later on enhanced the bid for Karachi Station to Rs,10,400,000, which offers were accepted and respondent was obliged to issue the FM Radio Broadcast, Licences to the petitioner for Karachi and Peshawar. He further argued that petitioner continued to follow up the matter with the respondent and was informed that the issuance of licence was being delayed on account of delay in the security clearance of the petitioner's sponsors and shareholders and after some follow-up security clearance has been given to the petitioner. He also argued that petitioner was surprised when he received letter dated 21-10-2006 that the approval for grant of licences for the FM Radio Stations at Karachi and Peshawar has been withdrawn on the ground that the licence slots were already exhausted. He contended that petitioner ran from pillar to post and wrote to the respondent but the respondent has failed to issue the licences for FM Radio to the petitioner despite the fact that the petitioner was declared successful bidder for the same.
3. Learned counsel further argued that petitioner being treated in a discriminatory manner as all other successful bidders have been granted their licences and they have been enjoying the benefit of the same for a considerable period of time. He stated that petitioner being. The highest bidder and the discretion vested in the authority has to be exercised judiciously and not arbitrarily. In support of this plea, learned counsel has relied upon a number of cases including the case of Muhammad Idrees v. Collector of Customs and others (PLD 2002 Kar. 601), wherein it has been observed that "petitioner, after giving highest bid and depositing 25% of bid money had got vested right, of which he could not be deprived without recourse to R.24(2) --- Petitioner's highest bid had not been rejected under R.17 within the period provided therein, which would be deemed to have been acted High Court accepted the Constitutional petition with cost and declared the re-bidding and acceptance of bid of the other party as illegal and void and directed respondents to issue deliver order to petitioner in respect of disputed lot on payment of balance amount of bid given by him." He contended that petitioner has suffered at the hands of respondent for several years and the respondent is now trying to take advantage of its own default by alleging that slots for licences are exhausted. He further contended that respondent has acted in arbitrary, whimsical manner and violates the fundamental rights of the petitioner.
4. Learned counsel contended that for grant of licence there is no criteria/procedure of security clearance in the PEMRA Ordinance. He made reference to Section 19 of PEMRA Ordinance, 2002, which relates to the procedure for grant of licence to broadcast, the same is reproduced below:--- "19. Licence to broadcast or operate.--- The Authority shall have exclusive right to issue licences for the establishment and operation of all broadcast stations including Cable TV network, 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.
(2) No person shall engage in broadcasting or CTV operation except after obtaining a licence issued under this Ordinance.
(3) Every licence shall be subject to such terms and conditions as may be prescribed."
5. Learned counsel has drawn our attention to section 11(4) and (5) of the PEMRA Rules, 2002 and stated that Authority shall take decision on the application within a period of 100 days from receipt of the application and if satisfied that issue of the licence to a particular person is not in the public interest, record reasons in writing after affording an opportunity of hearing to the applicant, refuse to grant a licence. He, therefore, argued that respondent should act in accordance with the law but the respondent instead of taking any decision on the application of the petitioner within 100 days informed the petitioner on 21-10-2006 that the Authority has decided to withdraw the approval for the grant of FM radio licence to petitioner for Peshawar and Karachi since the maximum number of slots reserved for Karachi and Peshawar have already exhausted.
6. Learned counsel in support of his submissions has placed reliance on the cases of Collector, Sahiwal and 2 others v. Muhammad Akhtar (1971 SCM R 681), Makerwal Collieries Ltd. And 2 others v.
Government of N.-W.F.P. And 11 others (1993 SCM R 1140), Messrs Dadabhoy Investments (Pvt.)
Limited v. Federation of Pakistan and another (PLD 1995 Kar. 33).
7. On the other hand, Mr. Kashif Hanif learned counsel for the respondent contended that petitioner was never pre - qualified on 10-4-2004 as at that time petitioner had not submitted any application for issuance of FM radio licence and the petitioner was only applied to show interest to participate in the bidding for FM Radio licences for various cities in Pakistan. He contended that the respondent authority was not obliged to grant licence merely on the basis of successful bidder as for grant of licence the criteria for evaluating licence application under Rule 10 of the PEMRA Rules is mandatory, but the petitioner has failed to fulfil the said criteria as the Ministry of Interior not given security clearance to the petitioner. He also argued that when petitioner failed to obtain security clearance he wrote letter directly to the Ministry bypassing the respondent authority and after refusal of the petitioner application for grant of licence the Ministry of Interior after passing more than one year issued security clearance to the petitioner, which have no legal effect. He contended that the Authority has decided to withdraw the approval for the grant of FM radio licence to petitioner for Peshawar and Karachi since the maximum number of slots reserved for Karachi and Peshawar have already exhausted and the petitioner was informed accordingly.
8. Learned counsel next contended that the terms of licence was for five years which has already been exhausted and after expiry of the licence now the petitioner are trying to get licence in the year 2011 at the rate of 2004, which will cause colossal loss to the government exchequer. He contended that petitioner remained mum for more than four years and now challenged the letter dated 10-1-2008 addressed to the petitioner by the respondent through instant petition instead of filing appeal under section 30-A of the PEMRA Ordinance. He further contended that petitioner has not approached to this Court with clean hands as they have concealed the material facts of filing of appeal to the respondent under Rule 23 of the PEMRA Rules, 2002, (Annexure 'C' to the Comments) which was dismissed and duly intimated to the petitioner vide letter dated 10-1-2008.
He also contended that Ministry of Interior regretted the NOC to the petitioner vide letter dated 18-1- 2005. Learned counsel, however, contended that the present petition has been filed only to circumvent the lacuna of limitation period for filing appeal. He lastly argued that this petition is filed with sole purpose of depriving the national exchequer from its revenue as the current value of the FM Radio Licence for Karachi is much higher than the petitioner bid of 2004.
9. Learned counsel thereafter attacked the maintainability of the petition on the ground that no appeal has been filed despite remedy being availabie under section 30-A of the PEMRA Ordinance, therefore, the petition is liable to be dismissed only on this score alone. In support of his submissions learned counsel has placed reliance on the cases of Wealth Tax Officer and another v.
Shaukat Afzal and 4 others (1993 SCM R 1810), Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCM R 29), Petrosin Corporation (Pvt.) Ltd. Singapore and 2 others v. Oil and Gas Development Company Ltd. (2010 SCM R 306) and Abdul Rehman Mayat and another v. Wealth Tax Officer and others (1988 SCM R 1722).
10. In the first case of Wealth Tax Officer and another, the Hon'ble Supreme Court held that:- "Art. 199-Constitutional petition---Availability of statutory remedy invoking Constitutional jurisdiction of High Court abandoning or bypassing statutory remedy without reasonable cause, was not approved by the Supreme Court."
11. In the second case of Al-Ahram Builders (Pvt.) Ltd., it was held as under:-- "Art. 199---Constitutional petition--Invoking of constitutional jurisdiction of High Court instead of availing of remedy provided for under the relevant statute would be justified when the impugned order/action was palpably without jurisdiction and/or mala fide as to force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper---Tendency to by-pass the remedy provided under the relevant statute and to press into service Constitutional jurisdiction of the High Court, however, was deprecated."
12. In the third case of Petrosin Corporation (Pvt.) Ltd. Singapore, the Hon'ble Supreme Court while entertaining the civil appeals has observed that:- "---The mere letters of intent to award the contract in present cases would not constitute a concluded contract. There may be cases in which a contract may involve a number of documents including exchange of correspondence between the parties in the process of finalization of the award of a contract---Letter of intent could not be treated to be synonymous to a completed contract---Bid of no other bidder had been accepted and respondent company had decided quite justifiably to re-advertise tenders---Judgment passed by the High Court in exercise of constitutional jurisdiction under Art.199 of the Constitution was correct to which no exceptions could be taken."
13. In the last case of Abdul Rehman Mayat, the Hon'ble apex Court held as follows:-- "Art. 199---Extraordinary jurisdiction of the High Court can ordinarily be invoked when there is no other remedy provided by law---When petitioner himself had invoked the statutory remedy of second appeal no exceptions, held, could be taken to the view that in the presence of the pending appeal, writ jurisdiction could not be invoked."
14. In rebuttal, Mr. Ijaz Ahmed urged that petitioner has not received the decision taken by the respondent on appeal under Rule 23 of PEMRA Rules how appeal to High Court be filed. With regard to the plea taken by the respondent of security clearance, he has taken us to letter dated 1-10- 2005, which shows that Ministry of Interior requested the respondent to review afresh the case of the petitioner on priority, but the respondent did not grant licence to the petitioner and as such the respondent is responsible for causing loss to the government exchequer.
15. We have carefully examined the arguments advanced by the learned counsel for the parties, perused the available record and the case law cited at the bar.
16. It is a matter of record. That the respondent invited applications for the grant of licence to establish FM Radio Broadcast Stations in various cities of Pakistan and vide letter dated 15-5-2004 the respondent addressed a letter to the petitioner informing that their company has provisionally pre-qualified for participation in the bidding process for the grant of licence. The controversy agitated through instant petition is that the petitioner company claimed to be the successful bidder for FM Radio Broadcasting Stations for Karachi and Peshawar and gave highest bid of Rs,10,400,000 for Karachi and Rs,20,00,000 for Peshawar, but the respondent has failed to grant licences to the petitioner. The respondent, who is the licence granting authority, submitted that the petitioner was the successful bidder but did not fulfil the criteria for evaluating licence application under Rule 10(iv) of the PEMRA Rules, 2002, as the Ministry of Interior had not given security clearance to the petitioner's sponsors and shareholdeRs, The petitioner directly approached to the Ministry of Interior bypassing the respondent authority as per letter dated 1-6-2005 wherein it has been stated that "Despite the passage of more than a year, we have not yet received the licence from PEMRA perhaps, owing to lack of the security clearance from the relevant agencies as required under the PEMRA regulations" and after refusal of petitioner's application for grant of licence the Ministry accorded NOC to the petitioner on 1-10-2005. The respondent vide letter dated 21-10-2006 informed the petitioner that PEMRA has decided to withdraw the approval for the grant of FM radio licence to petitioner for Peshawar and Karachi since the maximum number of slots reserved for Karachi and Peshawar have already exhausted, however, the respondent informed the decision to the petitioner for grant of FM radio licence vide letter dated 24-5-2007. The decision taken by the Authority is reproduced as under:--
(i) A slot for Messrs Financial Broadcasting Services (Pvt.) Ltd. (FBS) has been reserved for Karachi.
(ii) PEMRA will conduct open bidding for FM Radio Licences or Karachi and FBS will be asked to match the highest bid concluded in the bidding for the reserved slot.
(iii) Messrs Financial Broadcasting Services (Pvt.) Ltd. Cannot be entertained for FM Radio licence in Peshawar as there are no further slots available for Peshawar."
17. It appears from the record that petitioner did not avail the remedy available under section 30-A of PEMRA Ordinance, 2002, which provides that any person aggrieved by any decision or order of the Authority may, within thirty days of the receipt of such decision or order, prefer an appeal to the High Court, but the petitioner did not avail' the said remedy of filing of appeal and bypassed the same without any justifiable reason. Moreover, the petitioner has concealed the fact of filing of appeal under Rule 23 of the PEMRA Rules, 2002 and has not brought this fact to the notice of the Court or disclose the same in the memo of petition. The said appeal was dismissed by the respondent authority and duly intimated to the petitioner by letter dated 10-1-2008. The stand taken by the petitioner that they are not aware of the dismissal of their appeal and no order received by them is without any force, as it is settled law that applicant should be vigilant and it is the duty of the applicant to pursue his case and enquired about the fate of it.
18. So far the contention of the learned counsel for the petitioner that the petitioner is the highest bidder has got vested right and exercise of discretion against the subject should be based on sound principles of justice, equity, fairness and in accordance with the spirit of the provisions in which it occurs and should not be merely at the whims of the Authority, there is no cavil to the proposition but in cases where the petitioner do not fulfil the required eligibility, the above principle was not attracted.
19, It may be noted that tendency to by-pass the proper forum available under the relevant law is increasing day by day and the persons opted shortcut to resolve their grievance/dispute by filing the Constitutional jurisdiction instead of availing of remedy provided for under the relevant statute.
20. For the foregoing reasons, we find that the petition is not maintainable. The same is dismissed.
The parties shall bear their own costs.