SHAHID ANWAR BAJWA, J.---Petitioner No,1 is a company incorporated in Pakistan under the Companies Ordinance, 1984 and petitioner No,2 is its sole shareholder, sole Director and Chief Executive. On or about June 2, 2007 petitioner No,1 applied for Satellite TV Broadcasting Station licence for GEO SUPER. It may be pointed out that at the time of filing of the petition GEO SUPER was being uplinked from Dubai and temporary landing rights permission was granted to one Bird (Pvt.)
Limited, from time to time. Vide letter dated July 18, 2007 Pakistan Electronic Media Regulatory Authority, the respondent No,2 (hereinafter referred to as PEMRA) called upon the petitioner No,1 to provide certain documents. It is stated by the petitioner that documents were provided on July, 26th, 2007. On November 27th, 2007, PEMRA informed the petitioner that his application is under process. On February 27th, 2008 PEMRA wrote a letter to the Ministry of Interior stating that the present petitioner had applied for Satellite TV Broadcast Station Licence. Thereafter it was stated in the letter as under:-- "(2) It may be noted that Mr. Shakil-ur-Rehman is also the Director of Messrs Independent Newspapers Corporation (Pvt.) Ltd. (INCL). The Ministry of Interior has already cleared Mir Shakil-ur- Rehman from security point of view being a Director of Messrs INCL vide U.O. No, 9/67/2004-S.III, dated 12th October, 2004.
(3) Keeping in view the above, Ministry of Interior is requested to endorse the security clearance of Messrs Independent Music Group (SMC-Private) Ltd."
(2) On June 15th, 2009 a letter was written by PEMRA to the petitioner. The letter stated as under:-- "Reference your application for Satellite TV Broadcast Licence (GEO SUPER).
(2) It is informed that the Ministry of Interior vide their letter dated 9th June, 2009 has regretted the security clearance of Messrs Independent Music Group (SMC-Pvt.) Ltd. For aforesaid Satellite TV Channel Licence."
3. Finally on July 8th, 2009 PEMRA refused to grant licence to the petitioner. The letter in its entirety reads as under:- "No,10-2(83)STV-2007 8th July, 2009 Subject: REFUSAL OF GRANT OF SATELLITE TV LICENCE - GEO SUPER Reference: This office letter No, 10-2(83)STV-2008, dated 15th June, 2009.
2. It is informed that the Authority in its 5th meeting held on 3rd July, 2009 has refused the award of satellite TV licence to Messrs Independent Music Group (SMC-PVT) due to regret of security clearance by Ministry of Interior, which is obligatory under Rule 10(iv) of PEMRA Rules for issuance of licence.
(Sd.) Zeba Tabassum, Deputy General Manager, (Technical),"
4. Along with the petition a letter by the Section Officer has been enclosed as P/9 where the only relevant statement is that "the subject case has been examined in the Ministry of Interior and is regretted". This Constitution Petition has been filed and the following prayers have been made:-- "(A) Declare that delay and or non-issuance of licence to the petitioners by the respondents is discriminatory, against the Fundamental rights of the petitioners and without lawful authority.
(B) Declare that the letter of respondent No,1 dated 9th June, 2009 (Annexure P-9) is illegal.
(C) Direct the respondents particularly the respondent No,2 to immediately issue the Satellite TV Channel/Broadcast Media License to the petitioners.
(D) Pending adjudication, the petitioners should also be allowed to operate and run the TV channel on same terms and conditions as other TV Channels have been allowed to operate and run satellite TV channels in Pakistan.
(E) Any other relief which this honourable Court may deem fit in the interest and to safeguard the Fundamental Rights of the petitioners."
5. Learned counsel for the petitioners made the following submissions:-
(1) When the application for grant of licence was made the Pakistan Electronic Media Regulatory Authority (PEMRA) Rules, 2002 (hereinafter referred to as the Rules of 2002) were in existence and petitioners application should have been decided in accordance with the Rules of 2002. PEMRA Rules, of 2009 were promulgated on December 12th, 2009 and they cannot have any applicability to the case of the petitioners.
(2) Rule 9(5) of the Rules, 2009 which requires security clearance could not have been made applicable to the application of the petitioners because it is settled law that rules are in any case prospective in operation.
(3) Criteria for grant of licence is prescribed in section 25 of the Ordinance. No further criteria could be prescribed under the rules.
(4) Rule 13 of 2009 Rules which deals with the questions of Media ownership concentration and exclusion of monopolies for the same reason could not be made applicable to the application of the petitioners.
(5) That no reason for refusal of licence has been given, This is violative of section 24-A of the General Clauses Act, 1897.
6. Mr. Kashif Hand, learned counsel for PEMRA made the following submissions:--
(1) Under section 30-A it is provided that any person aggrieved by an order of the Authority can within 30 days of the order prefer an appeal to the High Court. He submitted that the order impugned in this petition was passed on 8-7-2009 and this petition was filed on 17-8-2009. The petitioners have chosen to file petition instead of appeal merely to circumvent the bar of limitation learned counsel added. Learned counsel relied upon Wealth Tax Officer and another v. Shaukat Afzal and 4 others, 1993 SCM R 1810 to contend that existence of alternate remedy of appeal barred this petition.
(2) It is not contention of the petitioners that the report by the Ministry of Interior is incorrect. What has been contended by the petitioners is that under the Rules of 2002 no requirement of security clearance was prescribed. He submitted that "credibility and track record"
Federation of Pakistan (Shahid Anwar Baiwa, J) which are part of the criteria prescribed in the Rules of 2002 ipso facto include question relating to security.
(3) PEMRA has no jurisdiction to question the conclusion arrived at by the security authorities.
Learned counsel submitted that PEMRA is duty bound to follow the rules and instructions of Ministry of Interior in the matter of security.
(4) In any case, Rules of 2009 are applicable. Learned counsel in this regard relied upon Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmed Khan, PLD 1975 SC 667.
(5) Learned counsel referred to para-11 of his Counter-Affidavit where it is stated that a person can be granted maximum of four Satellite TV Licence, four FM Radio Licence and Two landing right permissions and the petitioners had already been granted four Satellite TV Licence i,e, GEO News, Geo Entertainment, Geo English and Aag and therefore no fresh licence could be granted to the petitioners.
(6) Learned counsel submitted that application has been refused on account of denial of clearance by the securities authorities which is an essential requirement. He submitted that vires of such a requirement cannot be challenged on the ground of alleged violation of principle of natural justice. Learned counsel relied upon Muhammad Siddique v. The Market Committee, Tandlianwala, 1983 SCM R 785.
(7) Learned counsel submitted that limitation question cannot be decided by the High Court but can only be decided by the appellate authority. In this regard he relied upon Syed Match Company Ltd. v. Authority Under the Payment of Wages Act and others, 2003 SCMR 1984.
(8) This petition is not maintainable also for the reason that application for licence does not create a vested right. Learned counsel relied upon order of this Court in the case of Financial Broadcasting Services (Pvt.) Limited v. Pakistan Electronic Media Regulatory Authority (Sindh Region), C.P. No, D- 984 of 2008 decided by a Division Bench of this Court vide order dated 12-4-2010.
7. Mrs. Sheraz Iqbal Chaudhry, learned Standing Counsel filed a statement. With the statement comments signed by Deputy Secretary (Security) Ministry of Interior, Islamabad, were enclosed where Deputy Secretary in his comments merely stated as under:-- "Para-1 It does not relate to Ministry of Interior Para-2 PEMRA referred the case of Messrs Independence Music Group or security clearance/NOC under PEMRA Rule 7(d). The Ministry of Interior issues NOC from security point of view on the basis of recommendations of the security agencies. The security agencies give their recommendations on the basis of their parameters. The security vetting by the agencies is a prime prerequisite for NOC by Ministry of Interior. NOC was regretted on the advice of agencies.
Para-3 It does not relate to Ministry of Interior.
Para-4 It does not relate to Ministry of Interior.
Para-5 It does not relate to Ministry of Interior.
Para-6 It does not relate to Ministry of Interior.
Para-7 No comments."
She stated that she would only rely upon the comments.
8. Mr. Nadeem Ahmed, while exercising his right of reply made the following submissions:--
(1) Petitioners are not so much aggrieved by the order passed by PEMRA but by the order passed by the Ministry of Interior and Section 30-A does not provide any appeal against the order passed by Ministry of Interior. In this regard he referred to prayer Clause 2 of his prayers.
(2) Regarding applicability of rules, learned counsel referred to Rule 20(2) (d) (v) of Rules of 2009.
9. We have considered the submissions made by the learned counsel and have gone through the record as well as case-law cited at the bar.
10. Objection to the maintainability of this petition by counsel for PEMRA was that Section 30-A of the PEMRA Ordinance provides for an appeal which has to be filed within a period of 30 days.
Learned counsel's submission was that this petition has been filed after expiry of period of 30 days and is therefore filed with intent to defeat the provision of limitation provided in section 30-A.
Section 30-A provides as under:-- "30-A. Appeals.--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: Provided that PEMRA shall make available a copy of its decision or order of revocation of licence within twenty- four hours after decision to the licensee for referring an appeal to the High Court."
11. Learned counsel relied upon Syed Match Company's case (Supra). The Supreme Court in this case held that a party cannot ignore provision of appeal and file Constitution Petition instead.
Facts of the reported case were that an order passed by the Authority Under the Payment of Wages Act, on application under section 15 of the Payment of Wages Act, 1936. Such an order is challengeable in appeal before the Labour Court under section 17 and petitioner instead of filing appeal filed writ petition which was dismissed by the High Court on the ground of lack of maintainability and the Supreme Court concurred. Learned counsel also relied upon Shaukat Afzal's case (supra). In this case against assessment made by the Wealth Tax Officer the respondent had already approached the Appellate Tribunal. The Supreme Court held that in such a situation High Court should not have entertained Constitutional Petition.
12. On the other hand, learned counsel for the petitioner submitted that he is not really aggrieved by the order passed by the PEMRA: he is rather aggrieved by the order passed by the Ministry of Interior and PEMRA has merely communicated such an order. Contention of the learned counsel for the petitioner appears to be correct because the learned counsel for PEMRA has clearly submitted that firstly PEMRA has no jurisdiction to question the conclusion arrived at by the security authorities and secondly that PEMRA is duty bound to follow the instructions of Ministry of Interior in the matter of security. If the PEMRA could not do that while exercising its original jurisdiction it is difficult to see as to why in sum and substance and in reality the impugned order should not be seen as an order by the Ministry of Interior rather than an order by the PEMRA. PEMRA merely mouthed (or typed ) what had been written by the Ministry of Interior and learned counsel for PEMRA all but underlined absolute binding nature on PEMRA of such a conclusion arrived at by the Ministry of Interior. Moreover it is settled law that existence of an alternate remedy is not an absolute bar on power of this Court to entertain Constitution Petition under Article 199 of the Constitution. If any authority is needed one may refer to Nagina Silk Mill, Layallpur v. The Income- Tax Officer, A-Ward Layallpur and another, PLD 1963 SC 322, Fazal Din alias Mina and 2 others v.
Commissioner, Peshawar Division and another, PLD 1968 Peshawar 30 and A.F. Ferguson and Co. v.
The 5th Sindh Labour Court Karachi and another, 1974 PLC 98. Moreover as observed above and in fact it has been contended by the learned counsel for PEMRA that PEMRA has merely followed the dictat of Ministry of Interior and no appeal is provided within the four corners of PEMRA Ordinance against the dictate of the Ministry of Interior. Contention of learned counsel for the PEMRA is consequently repelled.
13. It was contended by the learned counsel for the petitioner that petitionerscase is governed by PEMRA Rules of 2002 and not by PEMRA Rules of 2009. PEMRA Rules of 2009 were promulgated on December 12, 2009 and this Constitution Petition was filed on 17-8-2009, therefore the date on which the PEMRA Rules were promulgated this Constitution Petition was already pending. It is settled law that notifications, instructions, circulars etc., issued by the government or statutory bodies operate prospectively and not retrospectively. In this regard one may refer to Hashwani Hotels Limited v. Federation of Pakistan and others, PLD 1997 SC 315, Army Welfare Sugar Mills Ltd. v.
Federation of Pakistan and others 1992 SCM R 1652 and Dadabhoy Cement Industries Ltd. v. M/s. National Development Finance Corporation, 2002 CLC 166. Even otherwise PEMRA Rules of 2009 which repealed the Rules of 2002 in Rule 20(2)(d)(v) which provide for repeal of Rules of 2002 provide that the repeal shall not: "(v) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid."
Present legal proceedings were already pending when the Rules of 2009 came and therefore in any case the petitioners application could not have been dealt with under PEMRA Rules of 2009 and should have been processed under Rules of 2002.
14. Contention of the learned counsel for the petitioner was that there was no requirement of security clearance under Rule 10 of PEMRA Rules of 2002, whereas the requirement of security clearance was for the first time brought about by Rule 9(5) of the Rules of 2009. Learned counsel for the PEMRA submitted that requirements of "credibility and track record" provided in Rules of 2002 themselves encompass security clearance. We do not think that we need to decide this controversy and leave it for decision in an appropriate case because what has happened in this case is that PEMRA while referring the case to Ministry of Interior pointed out that respondent No,2 is also Director of another company which has already been granted a licence for one satellite broadcasting station. Moreover the Ministry of Interior has not given any reason whatsoever as to why security clearance was not given to the petitioner. Learned Standing Counsel merely stated that she relied upon the comments submitted by the Ministry of Interior. It was available to the Ministry of Interior to bring to this Court the material that they had against the petitioners. They have chosen not to do so. This Court cannot ignore the fact that GEO SUPER has been, though through uplinking licence, temporary landing rights permission telecasting sports programmes, it was stated, for five years and the sole owner of petitioner No,1, (such sole owner is himself petitioner No,2) has been granted TV Licenses for four other channels. No material has been placed before us to prima facie establish as to what threat if any was perceived to be likely to be caused by grant of licence to the petitioners. Therefore, based on the material produced before us, it appears to us that it was not justified for the Ministry of Interior to refuse clearance to the petitioners. Moreover every executive order must contain reasons for the order and we have not been able to divine any reason in this regard at the best none has been pleaded.
15. However, contention of learned counsel for the respondent by reference to section 23 of the PEMRA Ordinance deserves some weight. Section 23 of the PEMRA Ordinance, provides as under:- "23. Exclusion of monopolies.---(1) No person shall be entitled to the benefit of any monopoly or exclusivity in the matter of broadcasting or the establishment and operation of broadcast media or distribution service or in the supply to or purchase from a national broadcaster of air time, programmes or advertising material and all existing agreements and contracts to the extent of conferring a monopoly or containing an exclusivity clause are, to the extent of exclusivity, hereby declared to be inoperative and of no legal effect.
(2) In granting a licence, the Authority shall ensure that open and fair competition is facilitated in the operation of more than one media enterprise in any given unit of area or subject and that undue concentration of media ownership is not created in any city, town or area and the country as a whole: Provided that if a licensee owns, controls or operates more than one media enterprise, he shall not indulge in any practice which may impede fair competition and provision of level playing field."
16. It has been stated in the Counter-Affidavit filed to the stay application as well as in the comments that four broadcasting licences have already been granted to this group. Now this is not the reason stated in the impugned order for which the application for licence has been declined. At the same time no re-joinder to the Counter-affidavit or the comments has been filed by the petitioners. This in any case is an aspect which requires evaluation by the Licensing Authority and task of such evaluation cannot be undertaken by this Court in exercise of its Constitutional jurisdiction.
17. Resultantly we set aside the impugned orders dated July 8, 2009 and June, 15, 2009 and remand the matter to PEMRA to decide the application of the petitioner for licence in accordance with the law within a period of two months of the date of this judgment.
Constitution Petition along with the listed application is disposed of in the above terms.