1. ' TUFAIL H. EBRAHIM, J.--- By consent of the learned counsel of the parties and the learned D.A.-G.
2. This petition was finally heard at Katcha Peshi stage and is being decided accordingly.
3. ' The petitioner claims to be chairman of Consumer Association of Pakistan, a non- Government Organization, duly registered under the Societies Registration Act XXI of 1860 who has filed this pro bono publico petition against Pakistan Telecommunication Authority (PTA) and Pakistan Telecommunication Corporation Ltd. (PTCL) and otheRs, ' It was contended by the learned counsel for the petitioner that PTCL, under the licence granted by the PTA, provides both land line and wireless communication through telephone to millions of customers in Pakistan through agreement enforceable under the law. The main contention of the learned counsel of the petitioner was that in the month of November 2007. PTCL introduced a package under the name of PTCL "Pakistan Package" providing additional facilities to make unlimited NWD calls from PTCL to PTCL and PTCL to V Fone, against fix charge of Rs,I99 plus taxes, in addition to the monthly line rent which has been pre-activated from December 1, 2007. Customers were further advised that if any one did not want to avail this pre-activated package he/she could call on specific number for deactivation or through IVR agent or by visiting their nearest consumer care centre or nearest revenue offices.
4. ' Learned counsel for the petitioner vehemently argued that while the PTCL could offer any new package, it could not impose any package on to the consumer. Not only was this against the business ethics but was in contravention of the terms and conditions of the contract between the consumer and the PTCL signed by the former at the time of obtaining telephone connection. Per learned counsel this package was not an offer but an imposition on the consumer. He further said that while the PTCL could make a new offer, it was the right of the consumer to accept or reject it notwithstanding the right of the consumer to subsequently cancel the said offer within 3Q days as provided in the said advertisement. Per learned counsel most of the customers are simpleminded and unable to comprehend easily the cancellation procedure and end up being financially burdened. It was contended that the PTCL should have only activated the package after the formal consent of each consumer and by not doing so it had robbed billion of rupees from its customeRs, ' The second point raised by the learned counsel for the petitioner was in respect of revision of local call rates from five minutes duration to two minutes for peak hours i.e. From 8 a.m to 9 p.m. And four minutes for non-peak hours from 9 p.m. To 8 a.m. w.e.f. From 1st April, 2008. Per learned counsel this revision in rates was against the assurance given by the Government of Pakistan that, after privatization, the PTCL would provide good service on economical rates. Per learned counsel revision of rates had resulted in more than 100 percent increase in the monthly phone bills of customers and that PTCL had earned billions of rupees from them in collusion with the PTA.
5. ' Both learned counsel for the PTCL and the PTA have taken preliminary legal objections as to the maintainability of this petition on the grounds that the petitioner is not an aggrieved person, and as such it has no locus standi to file this petition and no fundamental right of the petitioner has been encroached or violated by the PTCL or the PTA. Per learned counsel the PTCL is a public limited company privatized in 2006 and is neither managed nor controlled by the Government of Pakistan therefore it is not amenable to writ jurisdiction within the meaning of Article 199 of Constitution of the Islamic Republic of Pakistan.
6. ' On merits the learned counsel for the PTCL/respondent No,2 has argued that tariff' is not part of contract between the PTCL and its consumer and since the petitioner is seeking enforcement of contractual obligation therefore this petition is not maintainable. Per learned counsel , the "Pakistan Package" was only a promotional offer and that the PTCL was not required to seek formal approval from the PTA. Despite that, however the PTA was duly intimated vide their letter dated 30-11-2007. In addition, the terms and conditions of the contract between the PTCL and its customers has not been adversely changed or altered. Per learned counsel the said package was activated after extensive advertisement and provision of comprehensive information to its customers through both the press and electronic media. Further, the customers had 31 days to deactivate the package and those who could not deactivate it for any reason, could adjust it in their bills, a practice that continues to date in order to resolve the consumer grievances regarding the said package. Per learned counsel the "Pakistan Package" was discontinued/recalled w.e.f. 1st April, 2008 and was advertised widely and as such there is no grievance left for the petitioner to agitate.
7. ' As to the second point raised in the petition, it was contended by the learned counsel for the respondent that the PTCL has not acted in violation of government policy or has violated any fundamental right. The local call charges were changed after eight years due to various reasons including inflation and taking into consideration worldwide prices. Per learned counsel raising of local call charges is in accordance with the contract, guidelines formulated by the PTA and is a question of fact and as such this controversy cannot be agitated or decided in constitutional jurisdiction. Per learned counsel even otherwise the grievance of the petitioner has been satisfied as local call charges have been reduced on the directives of the PTA.
8. ' The learned counsel for the PTA has supported the legal contentions raised by the learned counsel for the PTCL. Per learned counsel PTA took cognizance of the pre- activation of the "Pakistan Package" on all subscribers and directed the PTCL not to offer any package on a pre-activated basis as it may adversely affect the customers not aware of the package or its pre-activation. Per learned counsel PTCL had also announced that those customers who could not deactivate the said package for any reason, have been offered adjustment in the bills, a practice that continues in order to resolve the customers grievance regarding the said package.
9. ' The learned Deputy Attorney-General has adopted the arguments of the learned counsel of the respondents.
10. ' We have heard the learned counsel of the parties and perused the records. Adverting to the preliminary legal objection as to the maintainability of this petition on the grounds that petitioner is not an aggrieved person and as such it' has no locus standi to file this petition. The argument has no weight as, according to us, the petitioner has filed pro bono public petition for the benefit and to protect the interest of millions of customeRs, The pre-activation of the "Pakistan Package" has affected million of customers and some customers may have been caught unaware of this kind of imposition by the PTCL. In addition, its de-activation is not a simple and straight forward process.
11. The imposition of the "Pakistan Package" on millions of customers would definitely result in increase in the billing of some customers at the expense of others, if not curtailment of a privilege or any right but definitely disadvantageous to most customeRs, Our view is fortified from the judgment of the honourable Supreme Court of Pakistan in the case of Ardeshir Cowasjee and 10 others v.
12. Karachi Building Control Authority (KMC) Karachi and 4 others reported in 1999 SCM R 2883, while dilating on the question of locus standi had held that:-- "Adverting to the question of locus standi of the appellants, we may observe that the Clifton beach is a place in Karachi, which is not only visited by the Karachiites, but generally people who are on short visit eiiher from other parts of the country or from abroad also visit Clifton beach as it is a well-established place of public recreation since .Before the partition of India. The title of the memo of appeal indicates that most of the appellants reside in close proximity of the Park and therefore, it cannot be urged that. They have no locus standi to file the above Constitution petition. In our view, because of the location of the Park as highlighted hereinabove even a resident of a distant area like Layari Quarters could have filed the above Constitution Petition.
13. ' In our view the appellant have the right to use the Park with all amenities as was envisaged under the approved KDA Scheme No,5. The use of the Park involves enjoyment of life which is covered by the word life employed in Article 9 of the Constitution as interpreted by this Court in the above- quoted extract from the judgment in the case of Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693.
14. ' The appellants, therefore, have the right to ensure that the official respondents do not grant approval of the plan in respect of the Plot which may be violative of the provision of the. Order and the Regulations and which may impinge on their right of enjoyment of life.
15. ' The above quoted passage from the well-known treatise indicates that the concept of locus standi has been whittled down inasmu ch as the expression "sufficient interest" inter alia, includes civil or (community) environmental and cultural interests.
16. ' We may also refer to the following judgments of this Court in which the concept of locus standi has been dilated upon the relation to the constitution petition and, inter alia, it has been held that for maintaining of proceedings in writ jurisdiction, it is not necessary that a writ petitioner should have the right in the strict juristic sense, but it is enough if he discloses that he had a personal interest in the performance of legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise."
17. ' Adverting to the other point of the learned counsel of respondent No,1 that respondent No,1 is not amenable to writ jurisdiction within the meaning of Article 199 of the Constitution of the Islamic Republic of Pakistan for the reason that the PTCL is not a statutory corporation and neither managed nor controlled by the Government of Pakistan is also untenable on the grounds that in the case of Nasiruddin Ghori v. Federation of Pakistan reported in 2010 PLC 323 the judgment, authored by Justice Shahid Anwar Bajwa sitting with Mr. Justice Gulzar Ahmed while deciding the question as to "whether PTCL is a person within contemplation of Article 199(5) of the Constitution of Islamic Republic of Pakistan" came to the following conclusion after elaborately dilating upon Article 199(5) and discUssing all the relevant judgments:-- "As we have held above, Federal Government holds 62% shares in PTCL and as long as Federal Government owns majority shares in PTCL, either in its own name, or, whether wholly or partially, in the name of any other organization or entity controlled by the Government, PTCL, is and shall continue to be amenable to the jurisdiction of this Court under Article 199 of the Constitution."
18. ' For better understanding, the aforesaid conclusion of my learned brother judge, sub-Article (5) of Article 199 of the Constitution of the Islamic Republic of Pakistan is reproduced hereunder:-- ' In this Article, unless the context otherwise requires:-- "Person" includes anybody politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a Law relating to the Armed Forces of Pakistan: and"
19. ' We are of the opinion that the imposition of a pre-activated "Pakistan Package" on millions of customers by the PTCL is not simply an offer within the meaning of Contract Act and no utility/service provider could impose new terms and conditions on its users which are contrary to the terms and conditions of the original contract signed between the service provider and the user and which is detrimental or disadvantageous to the user. Although in this case it may be observed that some of the customers may have benefited from this "Pakistan Package". We agree to the proposition of the learned counsel of the petitioner, that this package was not an offer but is an imposition on the consumer and that the PTCL, can make a new offer and it should be the right of the consumer to accept or reject the said offer before activation and notwithstanding the right of the consumer to subsequently cancel the said offer within 30 days as provided in the said advertisement. However, since the said package has since long been withdrawn by the PTCL and another scheme announced for those customers who could not deactivate the said package within the stipulated time for any reason, they have been offered adjustment in the bills, which practice still continues to date in order to resolve the customer grievances regarding the said package, therefore we are reluctant to pass any directions to the PTCL, except that the offer for adjustment in the bills should continue for at least a further period of six months from the passing of this . In future, they may not to launch any pre-activated scheme worderhich may be disadvantageous to the consumer or in contravention of the contract without first seeking formal approval from its customeRs, ' We fail to understand the arguments put forward by the counsel for the petitioner against raising of the local call charges. The counsel of the petitioner has failed to show what terms and conditions of the contract have been breached by the PTCL or whether the PTCL and/or the PTA have violated any government policy. He has even failed to prove how the fundamental rights of the customers have been violated. The contention of the counsel of respondents about the increase in the local call charges after eight years due to various reasons including inflation and taking into consideration worldwide prices have gone un-rebutted by the petitioner. Further, we are of the opinion that the right of the PTCL to increase local call charges is a mixed question of fact and law, for which adjudication would require recording of evidence and therefore the same cannot be resolved in constitutional jurisdiction, notwithstanding the availability of alternative adequate remedy for agitating this issue and hence under such circumstances, we are reluctant to issue any direction, more so since this grievance of the petitioner has been settled, at least to some extent, as the local call charges had been reduced by the PTCL as per the directions of the PTA.
20. Accordingly, this Petition and pending application are disposed of in the above terms with no orders as to costs.