PAKCOM LIMITED and others vs FEDERATION OF PAKISTAN and others

JAVED IQBAL, J.---The above captioned petitions are directed against judgment dated 13-2-2009 passed by learned single Judge of the Islamabad High Court, Islamabad in chambers whereby F.A.O. Bearing No,6 of 2008 and Constitutional Petition preferred by the petitioners, were dismissed.

2. Precisely stated the facts of the case are that "Messrs Pakcom Private Limited was granted a license under the provisions of Telegraphs Act, 1885 by the Federal Government, to establish, maintain and operate cellular mobile telephone public service and system within the territory of Pakistan on 19-4-1990. The license was to remain valid for a period of 15 years and was renewable subject to satisfactory performance, at the discretion of the Government of Pakistan. Review period of the license for renewal thereof was to commence three years before expiry of the said period of 15 years. The licensee was required to pay royalty at the rate of 4% of gross sales revenues minus Telephone and Telegraph Department call charges and 4% of net profit after tax. In the year, 1996, Pakistan Telecommunication (Re-organization) Act, 1996, was promulgated. On 12-8-1997, the Pakistan Telecommunication Authority, established under the provisions of Pakistan Telecommunication (Reorganization) Act, 1996 revalidated the license dated 19-4-1990. The original license was valid till 18-4-2005. The process for its renewal started and after lengthy correspondence between the petitioner and Pakistan Telecommunication Authority, on 19-4-2005, the petitioners licence was renewed. The payment of fees and other charges required to be paid by the petitioner were provided in paragraph 4.1 of the licence. The Pakistan Telecommunication Authority served a show-cause notice on the petitioner under section 23 of the Pakistan Telecommunication (Re-organization) Act, 1996 hereinafter referred to as 1996 Act, calling upon it, to remedy the contravention mentioned in the notice by paying the amount of 2nd, 3rd and 4th instalments, the annual spectrum charges, USF charges, R&D and ALF charges and the numbering charges with late payment charges in accordance with clause 4.2.2. Of the license within 15 days of the issuance of the notice and to show cause and explain in writing within 30 days as to why any of the enforcement orders prescribed in section 23 of the Act, including but not limited to suspending or terminating the licence or imposing additional conditions or appointing an administrator for managing affairs of the Licensee, may not be imposed. The petitioner gave reply to the show- cause notice. The Pakistan Telecommunication Authority on 3-1-2008, passed the following order:- - "The foregoing shows that the licensee has been extended every concession and has been fully accommodated in terms of time, which has been the licensees main concern and request.

However, it is observed that our concession, instead of being availed, has been abused every time and the licensee, despite the number of the opportunities given to it, has failed persistently in showing a serious approach towards its obligations under the license and our regulatory directives.

Based on the foregoing facts, we are of the considered opinion that the licensees contravention of the terms and conditions of the license regarding its financial obligations, incorporated in the license on the strength of the provisions of the Act, is grave and persistent and we, therefore, terminate its license No, CMT04/ LL&M/ PTA/ 2005 with immediate effect.

FAB is accordingly directed to immediately withdraw the frequency spectrum assigned to Messrs Pakcom (Instaphone). The outstanding dues mentioned in para 10, above, shall be recovered under section 30 of the Act for which proceedings shall be initiated forthwith."

The petitioner challenged the said order through F.A.O. No,3 of 2008 filed in the Lahore High Court, Rawalpindi Bench Rawalpindi. The appeal was heard by a learned Single Judge of the High Court on 15-1-2008. The parties agreed to the remand of the case to the Authority. Paragraph 3 of the order dated 15-1-2008, is reproduced:-- "In view of concurrence between the parties, above noted, instant appeal is accepted and impugned order dated 3-1-2008, passed by the Pakistan Telecommunication Authority is set aside, with the result that case is remanded to the same Authority for its fresh decision after hearing the parties and the decision so given shall be binding on them. In case the appellant ultimately commits any. Default in compliance of decision, the respondent authority can take punitive action, as per law.

Appellant is directed to appear before the respondent authority on 28-1-2008. Parties are left to bear their own costs."

After the remand, the Authority decided the matter vide order dated 4-3-2008. It was directed:-- "We therefore, finally direct the licensee this time through this repeated decision of ours to make payment of all outstanding amounts as per the detail given above in accordance with the terms and conditions of the license on or before 21st May, 2008.

The licensees failure to make payment on or before the aforementioned date shall not only be in violation of the undertaking given by . It before the High Court dated 15th January, 2008 but shall also be in grave and persistent contravention of the terms and conditions of the license.

In case of the licensees failure to make payment on or before the 21st May, 2008, its license No, CMT-04/LL & M/PTA/2005 shall stand terminated under section 23 of the Act and all necessary measures, in this regard, shall be taken accordingly."

It is worth mentioning here that on 21-2-2008, the petitioner gave an application under regulation 95 of the Pakistan Telecommunication Authority (Functions and Powers) Regulation 2006, for deferment in payment of license fee and other charges by way of moratorium. In the order dated 4-3-2008, the request for deferment of the payments was also rejected. Through F.A.O. No,6 of 2008, the Appellant challenged the order dated 4-3-2008. Apart from the appeal, the petitioner also invoked the constitutional jurisdiction of High Court under Article 199 of the Constitution through Writ Petition No,1298 of 2008 with the following prayer:--

(I) Declare that the Policy, in so far as it (1) purports to apply to renewal of licenses; (2) mandates that the Auction Winning Price shall be charged as the initial License Fee, especially upon renewal of the Original License, and (3) provides for the levy of the Spectrum Administrative Fee in Appendix B thereto is without lawful authority, void ab initio and of no legal effect. Accordingly, this honourable Court may be pleased to declare that the 2004 Regulations, the 2006 Regulations and the License, to the extent that they are based upon, incorporate, further or implement aforesaid aspects of the policy are without lawful authority, void ab initio and of no legal effect.

(II) Declare that Pakcom was entitled to renewal of the Original License on the terms and conditions contained therein, and in particular in accordance with Regulations 38(5) and 39(1) of the 2000 Regulations, and Regulation 37(5) of the 2004 Regulations, and any terms of the License inconsistent therewith are without lawful authority, void ab initio and of no legal effect."

(III) Declare that the Policy, the 2000 Regulations, the 2004 Regulations and the 2006 Regulations, to the extent that they purport to allow the levy of license fee on any basis other than the cost of regulation incurred by PTA are without lawful authority, void ab initio and of no legal effect.

(IV) Declare that the License, to the extent that it imposes the Annual License Fee on the basis of 0.5% of Pakcoms gross annual revenue is without lawful authority, void ab initio and of no legal effect.

(V) Declare that PTA and FAB acted unlawfully and without lawful authority by not allocating the frequency guaranteed by the Policy (i,e,10 +10 MHz) to Pakcom.

(VI) Direct PTA and FAB to allocate frequencies to Pakcom in the 1800 MHz band, as promised in the policy, in adequate quantity to ensure that there is a level playing field between Pakcom and other operators.

(VII) In the alternative to reliefs I, II and III above, to declare that Pakcom is entitled to the same terms and payment period for the payment of the License Fee as granted to Unfone subject to:

(a) the grant of reliefs No, IV, V and VI above and VIII below;

(b) the calculation of the Initial License Fee on the basis of the frequencies actually granted to Pakcom, and (c) a declaration that the fifteen year period of the License should be deemed to start from the effective date of grant of frequencies to Pakcom in the 1800 MHz band instead of starting from April 2005.

(VIII) Permanently restrain the Federal Government and PTA from taking any adverse action whatsoever against Pakcom and/or the Shareholders on the basis of the impugned terms of the Policy and/or the License or any demand made or order passed pursuant thereto.

(IX) Grant costs of the case to the petitioners.

(X) Grant any other relief deemed appropriate by this honourable Court."

3. F.A.O. No,6 of 2008 and Writ Petition preferred in the Islamabad High Court, Islamabad were dismissed by means of judgment impugned, hence these petitions.

4. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court entered appearance on behalf of petitioner and urged with vehemence that the legal and factual aspects of the controversy have not been dilated upon and decided in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is argued that various important aspects and relevant record escaped the notice of learned single Judge causing serious prejudice against the petitioner and the controversy in hand could not have been set at naught without a thorough perusal of various documents which was not done. It was next argued that the written submissions filed on behalf of petitioner were not taken into consideration and various points raised in Writ Petition No,1298/2008 were not decided at all. It is submitted that a specific stance was taken in Writ Petition No,1298 of 2008 that the Mobile Cellular Policy, 2004 (hereinafter referred to as the Policy), qua charging of the Auction Winning Price as initial license fee and the relevant portion of the licence and regulation issued from time to time by PTA were ultra vires of the Pakistan Telecommunication Authority Act, 1996 and besides that the distinction between "fee" and "tax" was not appreciated by ignoring the fact that a fee entails the elements of quid pro quo and proportionality between the costs incurred and services rendered. It was contended that the license fee sought to be imposed on the Licensee had various components and that the costs of the regularity services provided by PTA were to be recouped through the Annual License Fee and the Spectrum Administration Fee. As such, charging the Auction Winning Price which was US $ 291 million as the Initial License Fee over and above the fees levied to meet the cost of regulation was unjustified and unlawful. It was further argued that the licensee could be charged as price for Radio Frequency Spectrum was in violation of the relevant provisions of the Act which were enacted to re-organize the telecommunication system in Pakistan and to transfer telecommunication services to the private sector and the main object and reason in such enactment was to promote and protect the interest of licensees and consumers of telecommunication services to ensure fair and free competition. It was further argued that the provisions as enumerated in section 12 of the Act were silent regarding fee and thus it could not have been levied. It was also pointed out that nothing had been provided in section 12(3) of the Act that PTA was to generate surplus revenues and to deposit the same in the Federal Consolidated Fund. It was argued that the provisions as envisaged in section 12(3) of the Act had been misconstrued and misinterpreted in the judgment impugned. It was argued with firmness that exorbitant License Fee would create extraordinary burden on the financial resources of Pakcom which would destroy the business of Pakcom. It was also mentioned that the learned single Judge had erred in holding that the license fee was the price for assigning of Radio Frequency Spectrum which eliminated the possibility of any profit to Pakcom. It was contended that the subsequent insertion of subsection (3) in section 22 of the Act made through Pakistan Telecommunication (Re-organization) (Amendment) Act, 2006 could not be made applicable with retrospective effect as it came into being after the issuance of the Policy and renewal of the original license. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court on behalf of petitioner while arguing the said point, laid stress that Policy was based on the erroneous assumption that all portions or Sections of the Radio Frequency Spectrum were of the same utility by ignoring the fact that different frequencies or bands in the spectrum had different qualities. It was submitted that there was a qualitative as well as quantitative difference between the frequencies sold at the auction and those allocated to the existing Licensees like Pakcom. Pursuant to the auction, Telenor obtained 27.2. MHz (13.6+13.6 MHz) in the following bands: (1) 902.5-907.3 MHz/1724.9-1733.7 MHz, (2) 947.5-952.3 MHz/1819.91828.7 MHz, while Warid got 27.2 MHz (13.6 + 13.6 MHz) in the following bands: (1) 890-894.8 MHz/1710-1718.8 MHz, (2) 935-939.8 MHz/1805-1813.8 MHz.

On the other hand, Pakcom, upon renewal, got 14.76 MHz (7.38 + 7.38 MHz) in the following bands: (1)

824.265831.645, (2) 869.265-876.645 MHz. It was clear that Pakcom not only got a smaller portion of the spectrum (14.76 MHz) than Telenor and Wand (27.2 MHz each), it also got a different and inferior range of frequencies in a different part of the Spectrum. It was contended that Pakcom was severely handicapped as a result, in that the frequencies allocated to it could not support the latest technologies in the field, such as WCDMA/GSM, and could not provide essential services such as international roaming or data or value added services such as broadband data/GPRS or MMS.

The same comparison was true between Pakcom and the other operators, such as Mobilink and Ufone. Since it was absolutely clear that Pakcom and the new licensees were differently placed as a matter of law and fact, in terms of the quality and quantity of the Radio Frequency Spectrum .Allocated to them as well as in terms of the process through which they obtained the same, Pakcom could not have been treated at par with the new licensees as regards license fees as the Policy sought to do so. It was discriminatory, hence unlawful. It was well settled that unlawful discrimination takes place not only when similarly placed people are treated differently but also when differently placed people are treated alike. Pakcoms case, according to Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court, fell squarely within the latter principle and there was discrimination in the present case because of lack of classification. It was contended that in fact the Policy was discriminatory and against the Fundamental Rights as envisaged in the Constitution of Islamic Republic of Pakistan. According to learned Advocate Supreme Court U-fone and Mobilink had been given preferential treatment which resulted in an undue economic advantage over Pakcom of US $ 111,213.,421 and US $ 37,843,528 respectively which could not have been achieved by them under normal market conditions. It was contended that the learned single Judge in chambers had not arrived at the correct conclusion while interpreting the terms and conditions of the contract by holding that it was binding and no objection could be raised at belated stage which was not in consonance with record as Pakcom had never accepted the terms of the license without protest and various complaints were made by the Pakcom about certain terms and conditions contrary to law which ought to have been considered by the learned single Judge in chambers which was not done. It was mentioned that an agreement did not become lawful simply for the reason that its terms had been agreed upon and acceptance simpliciter had nothing to do with the legality and validity of the contract. It was also argued that process of auction of the Radio Frequency Spectrum as envisaged in the Information Memorandum is violative of the Policy which should have been taken into consideration by the learned single Judge in chambers while deciding the controversy. It was mentioned time and again that 1800 MHz band had not been available to the Pakcom till date which amounted to sheer discrimination and not in accordance with the guarantee as given in the Policy. In order to substantiate his esteemed views reference has been made to the following authorities:-- Collector of Customs v. Sheikh Spinning Mills, (1999 SCMR 1402), Biafo Industries v. Federation of Pakistan (2000 CLC 170), Master Foam v. Government of Pakistan (PLD 2005 SC 373), Shamroz Khan v. Muhammad Amin (PLD 1978 SC 89), State of Maharashtra v. The Salvation Army, (AIR 1975 SC 846), Government of Pakistan v. Muhammad Ashraf (PLD 1993 SC 176), Elahi Cotton Mills v.

Federation of Pakistan (PLD 1997 SC 582) Faridsons Ltd., v. Government of Pakistan (PLD1961 SC 537), Government of Pakistan v. Zamir Ahmad Khan (PLD 1975 SC 667), Gadoon Textile Mills v. WAPDA (1997 SCMR 641), Arshad Mehmood v. Govt. Of Punjab (PLD 2005 SC 193), IA Sherwani v. Government of Pakistan (1991 SCMR 1041), Zaman Cement Company v. C.B.R. (2002 SCMR 312), Collector Customs, Excise and, Sales Tax v. Flying Kraft Paper Mills (1999 SCMR 709), Anoud Power Generation Ltd., v. Federation of Pakistan (PLD 2001 SC 340), Yousuf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104), Muhammad Hussain v. Federation of Pakistan (2003 YLR 2793) and KT Moopil Nair v. State of Kerala (AIR 1961 SC 552).

5. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court entered appearance on behalf of respondent and strenuously controverted the view point as canvassed at bar by Ch.Aitzaz Ahsan, learned Senior Advocate Supreme Court for the petitioner and supported the judgment impugned for the reasons enumerated therein with the further submission that the main object for invoking the jurisdiction of Lahore High Court and this court is to avoid the payment of heavy dues on one or the other pretext which are outstanding against the petitioner. It is contended that the contract accepted by Pakcom would show that there is no discrimination or preferential treatment to U-fone and Mobilink etc. And the terms and conditions enumerated in the contract were agreed to between the parties and it would be too late in the day to object on any of the terms and conditions enumerated in the contract which are binding in nature and cannot be flouted by exploiting different provisions of law and approaching different forums. It is argued that on 5th October, 2004 an option was given to Pakcom to select between GSM and CDMA and it was clarified and conveyed to Pakcom that pursuant to Mobile Cellular Policy license fee amounting to US $ 291 million would be charged. No objection whatsoever was made by the Pakcom and CDMA was opted which was conveyed to the Authority prior to the renewal of the license. It is argued that Pakcom has been using AMPS/DAMPS technology which was old but it was the choice of Pakcom itself knowingly that the said technology was going to be replaced either by GSM or CDMA. It is made clear by Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court on behalf of respondent that PTA had offered two options i,e, GSM technology with 10+10 MHz frequency or CDMA with 7.38 + 7.38 MHz frequency and CDMA was opted for by the Pakcom and accordingly they were to utilize their old 10+10 MHz frequency until April, 2008 but Pakcom subsequently failed to adopt the new CDMA technology instead of AMPS/DAMPS and according to Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court the question of lesser frequency would have never arisen, had the Pakcom opted for the GSM technology. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court has also clarified that in fact, if 10+10 frequency is used for CDMA, then it converts it to WCDMA, 3G (Third generation) network, which has not yet been allowed by PTA to be introduced in Pakistan. Interestingly, Mobile and Cellular Policy of 2004 stipulates that 3G technology will be auctioned through bidding in a transparent manner for existing and new operators. It is argued by Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court on behalf of respondent that Pakcom was never interested to continue with its business and always attempted to find out some new investors and besides that at the time of renewal of licence the majority shares in Pakcom were owned by a foreign company known as Millicom. In order to substantiate the said version, correspondence made between the Pakcom and PTA has been referred showing that the Pakcom did not have enough resources to replace the old technology with CDMA which could not be done without more capital, unavailable with Pakcom and in fact the poor financial position of Pakcom remained a hurdle in adopting the new technology i,e, CDMA and no restriction or impediment whatsoever was laid by the PTA or Frequency Allocation Board. It is next contended that according to the PTA Act of 1996 and rules made thereunder the licence is to be renewed according to the terms and conditions prevalent at the time of renewal. In this regard reference has been made to the provisions as enumerated in section 8 of the PTA Act of 1996 and the rules made thereunder. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court was of the view that renewal of Pakcom was made strictly in accordance with the Policy and hence the question of any discrimination did not arise. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court has mentioned that an open and transparent process of determination of the license renewal fee through competitive forces in order to facilitate and promote competition between the old and new licensees have been prescribed in the Policy and it was binding for the old licensee to provide services of the same kind at the same time in the Market to the consumers. It is also pointed out that initial license was given to Pakcom without charging any fee and subsequent imposition of License Fee was due to the tremendous growth in the business in telecommunication sector. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court has also mentioned that Pakcom had never objected to the amount of liability and assured to honour its commitment which could not be done and the PTA was involved in the litigation. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court has further submitted that the controversy in hand involving various disputed questions of facts could not have been dilated upon and decided in exercise of Constitutional jurisdiction and the Constitutional petition has rightly been dismissed by the learned single Judge in chambers and besides that the petitioner for the redressal of his grievance had also filed a civil suit. It is also mentioned that the Authority after having taken into consideration all legal and factual aspects has dilated upon the controversy on two occasions with diligent application of mind and conclusion as arrived at is strictly in accordance with law and record of the case. It is also argued that in fact a futile attempt has been made to flout the responsibility and liability qua payment of amount due against Pakcom. In order to substantiate his view point Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court has referred the cases of Home Comforts v. Rashid Baig (1992 SCMR 1290) Overseas Pakistanis Foundation v. Mukhtar Ali Shah (2007 SCMR 569?, Ghulam Rasool v. Chief Administrative of Auqaf, West Pakistan (PLD 1971 SC 376).

6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused the judgment impugned. After having scrutinized the entire record we are of the considered opinion that in fact the dispute between the parties mainly revolves around the core issue of non-payment of PTA dues which could not be resolved due .To certain reasons and pendency of it for more than five years before the different forums jurisdiction whereof was invoked by the petitioner. It is to be noted that except initial payment along with the acceptance letter dated 18-4-2005 the petitioner have failed to pay even a single penny due, on one or the other reason in spite of the fact that all possible latitude was extended by the respondent in this regard. The statement of accounts up to May, 2010 furnished by PTA would affirm non-payment of the amount due. It is worth mentioning here at this juncture that at the time of signing renewal license agreement, the license fee amounting to US $ 291 million was never disputed and the financial terms were accepted in toto. In this regard the letter dated 15th April, 2005 addressed to Director General (Licensing) can be referred to and same is reproduced hereinbelow for ready reference:- "From: Mr. Lain Williams, Pakcom-CEO To: Ch. Muhammad Din, PTA-Director General (Licensing)

Copy: Maj. General (Retd) Shehzada Alam Malik, PTA-Chairman Object: Renewal of Pakcom Limiteds ("Pakcom") License Your Ref: No,3-1/-0/Instaphone/LL&M Annex: N.A. Islamabad, 15th of April, 2005 Dear Sir, We write with reference to the Pakistan Telecommunication Authoritys Letter No,3- 1/05/Instaphone/LL&M Dated April 15th, 2005.

We accept the terms laid out in para 2. (Emphasis provided)

In ref to para 3. We request that the license be renewed subject to our existing frequencies (825- 835/870-880 MHz) in consonance with the letter and spirit of the policy and the law. (Emphasis provided)

As Pakcoms license will be renewed on or before 18th April we would ask for an immediate response.

Yours sincerely, (Sd.)

Iain Williams Chief Executive Officer-Pakcom Limited".

7. A bare perusal of the above reproduced letter would make it abundantly clear that the terms laid down were accepted without any objection worth the name. It also transpired from the scrutiny of record that Pakcom had never objected to the amount of liability but always assured to honour its commitments. The PTA had sent various letters to Pakcom to pay the initial License Fee and other dues but needful could not be done which culminated into show-cause notice of 6th February 2006 to Pakcom for making the payment to PTA. In this regard reference can be made to the relevant portion of show-cause notice which would make the position clear:-- "(2) WHEREAS, the Authority vide letter dated 29th September 2005 and 18th October, 2005, required you to deposit the 2nd instalment of Initial License Fee of US$ 14.55 million by 18th October, 2005 as per clause 4.1.1.1. Of the license conditions but you have failed to clear and deposit the 2nd instalment in full even after the lapse of more than three months. In addition, you were required vide letter dated 1st September, 2005 to pay Rs,34.142 million as Spectrum Administrative Fee.

However, in order to facilitate, you were then asked vide letter dated 8th November, 2005 to deposit Spectrum Administrative Fee by 31st December, 2005 but you have failed once again to meet your liability within the deadline so given. Moreover, you were directed vide letter dated 6th January 2006 to meet your liability and deposit the 2nd instalment of Initial License Fee of US$ 14.55 million immediately but you have failed to honour the Authoritys direction and therefore, have contravened the license condition while trying to linger on and to escape from your liability on one pretext or the other. (Eemphasis provided)

3. AND WHEREAS under clause 4.1.1.1 (0) of the license conditions the licensee was obliged to deposit 2nd instalment of US$ 14.55 million as initial license fee by 18th October 2005. This clause of the license read as that 50% of the Auction Winning Price in US$ or equivalent Pakistan Rupees shall be paid by the licensee in instalments by 18th April, 2008. The amount of 50% of the Auction Winning Price shall be paid as per following schedule.

(a)10% at the time of renewal(US$ 14.55 Million)

(b)10% 18th October 2005(US$ 14.55 Million)

(c)10% 18th April 2006 (US$ 14.55 Million)

(d)10% 18th October 2006(US$ 14.55 Million)

(e)20% 18th April 2007 (US$ 29.10 Million)

(f) 20% 18th October 2007(US$ 29.10 Million)

(g)20% 18th April 2008 (US$ 29.10 Million)

(4) WHEREAS clause 10.11 of the license conditions provides that if the Authority determines that the licensee has violated a provision of this License or the Act, Rules or Regulations, conditions of this License or any other orders or instructions of the Authorities, the Authority may by order impose one or more sanctions provided in the Act, the Rules and the Regulations issued thereunder.

(5) AND THEREFORE, due to contravention and violations of the above mentioned provisions this Notice is hereby issued to you, inter alia, on the following grounds:

(a) that the licensee has violated the mandatory statutory provisions of the Act, the Rules, the Regulations and clause 4.1.1.1 (b) of the license terms and conditions by not depositing the 2nd instalment of Initial License Fee of US$ 14.55 million within the time so provided, deposit repeated reminders; and

(b) that the licensee has failed to pay Rs,34.142 million as Spectrum Administrative Fee even after the lapse of extended period of 31st December 2005. (Emphasis provided)

(6) MOREOVER, you are directed to apprise the Authority with valid reasons of the above said contraventions and violations within thirty days of this Notice. Failure to comply with the instructions of the Authority may lead to:

(i) levy of fine which may extend to three hundred and fifty million rupees; or

(ii) suspension or termination of the license, imposition of additional conditions or appointment of an Administrative to manage the affairs of the licensee, but only if the contravention is grave or persistent.

(7) It may be noted that if the licensee fails to reply the Notice within the specified period the Authority reserves the right to proceed ex parte and decide the case on the basis of available evidence and record and according to the provisions of law.

8. It further revealed from the scrutiny of record that the said show-cause notice was responded after a lapse of month and nothing was mentioned in the specific terms qua the payment of dues but on the contrary it was submitted that in view of the change of ownership in the company the new majority shareholder namely Total Telecom will pay the amount due. The worth mentioning point seems to be that the amount due or the financial, liability was never challenged and no objection worth the name was made except that the commitment could not be honoured due to the change of ownership; relevant portion is reproduced herein below for ready reference:-- "As the Authority is aware, the existing shareholders of the Company have been conducting negotiations on the terms and conditions for the sale and transfer of the majority shareholders (i,e, the Millicom Groups) entire shareholding in the Company to the existing minority shareholders (i,e, the Arfeen Group). I am pleased to inform you that these negotiations have now concluded and the parties have executed an agreement to effect this transaction."

More specifically it was, further, assured as follows:-- "In view of the contractual commitments of the Purchaser in the Pakcom SPA and the specific Undertaking by the Purchaser in favour of the Authority, it is respectfully submitted that the basis on which the show-cause notice was issued will stand cured."

9. In so far as the Total Telecom is concerned an assurance was given that delay in the payment was mainly due to the change in ownership with the promise that amount due would be paid. In this regard the letter issued by Total Telecom to PTA is reproduced herein below to appreciate the stance of Total Telecom:-- "TOTAL TELECOM April 8, 2006 Maj. Gen. (Retd) Shahzad Alam Malik Chairman, Pakistan Telecom Authority Government of Pakistan Islamabad.

Dear Mr. Chairman, Kindly refer to the meeting held in your offices on Friday April 7, 2006 in the presence of the esteemed Member Finance and your other colleagues.

As desired by you, Id like to reiterate the following aspects of the Pakcom plans pursuant change of ownership in the light of the agreements signed between MIC and Total Telecom.

(1) Pakcom Limited, the service provider under the Instaphone brand shall continue to operate under the existing name and brand. (Emphasis provided)

(2) Total Telecom is not replacing Pakcom. Instead Total telecom is replacing MIC/Comvik AB, Netherlands as the shareholder acquiring the MIC stake of 61.25% in Pakcom Limited.

(3) Total telecom wishes to aggressively build upon the existing strengths of Pakcom and compensate for the financial weakness of Pakcom which resulted from the inability/unwillingness of MIC/Comvik AB to invest in the company.

(4) Total Telecom is conscious of the delays in the payment of the last tranche of license fee to PTA.

This delay was the consequence of the stalemate between the shareholders and the transaction entered upon between Total Telecom and MIC will alleviate the financial problems at Pakcom.

(5) Pakcom Limited will in the shortest possible time endeavor to be current in respect of its liabilities at PTA. However this will not be possible until the change of ownership has been legalized through an acceptance by PTA. (Emphasis provided)

(6) For your information, the Group has already engaged Deutsche Bank as the financial advisor and arranger for an investment of up to US Dollars 300 million as one of the strategies in the revival of Pakcom plans.

As explained to you earlier, in a pure legal and commercial context, no meaningful action will be possible vis-a-vis the fulfillment of existing an future financial obligations of Pakcom until the new shareholder i,e, Total telecom is formally brought on board.

We therefore request you to kindly expedite the process of your approval. We wish to re-assure you that Total Telecom is intensely engaged in putting all the other prices of the expansion and revival plans in place to vindicate its commitment to the telecom sector in Pakistan and we are sure you will be happy in the months ahead to witness yet another significant contribution by us on the fast moving telecom landscape of Pakistan.

Looking forward to your support and understanding, I am, Yours sincerely, (Sd.)

Shahid Firoz"

10. We may mention here that besides the above mentioned letter a Letter of Commitment was also addressed to PTA which is as follows:-- "Total Telecom Mr. Kamran Ali, Director General (L&R)

Pakistan Telecommunication Authority, Headquarter, F-5/ 1 Islamabad.

May 16 2006 Dear Sir, LETTER OF COMMITMENT Total Telecom (Pvt.) Limited with its registered office at FL-10, World Trade Center, Khayaban-e- Roomi, Block 5, Clifton, Karachi, Pakistan hereby firmly declares as follows:--

(1) Total Telecom (Pvt.) Limited is acquiring from Comvik International B.V., a company incorporated under the laws of The Netherlands having its registered office at Wijnhaven 3B, 3011 WG Rotterdam, The Netherlands, and Millicom International Cellular S.A., a company incorporated under the laws of the Grand-Duchy of Luxembourg having its registered office at 75, route de Longwy, L-8080 Bertrange, Grand-Duchy of Luxembourg, 61.25% shares of Pakcom Limited, a public limited company having its registered office at 75-East Blue Area Fazal-ul-Haq Road, Islamabad, Pakistan. The acquisition of the said shares will result in effective control of Pakcom Limited vesting in Total Telecom (Pvt.) Limited.

(2) That it is acknowledged that Pakcom Limited has outstanding liabilities in respect of license fee due to PTA and that some of these license fee payments are past due.

(3) That it is also acknowledged that Pakcom Limited must become current on its past due payments and must stay current on its future payments towards PTA.

(4) That Total Telecom (Pvt.) Limited hereby commits that pursuant to its takeover of the management and control of Pakcom Limited it will ensure that Pakcom Limited becomes fully current on its payments to PTA as expeditiously as possible, and that future liabilities of Pakcom Limited towards PTA, are discharged by Pakcom Limited in a timely fashion. We do not expect the timeline on this to exceed 120 days.

We further confirm that Messers Deutsche Bank has already been appointed by us to arrange the funds for Pakcom transaction and separately we shall provide you a confirmation from Deutsche Bank to this effect.

The above constitutes a valid and firm commitment on the part of Total Telecom (Pvt.) Limited and is being issued for the satisfaction of PTA as desired by PTA in its letter dated May 15, 2006.

(Emphasis provided)

Kind regards, Yours truly for and on behalf of Total Telecom (Pvt.) Limited (Sd.)

Shahid Firoz, Director."

11. A bare perusal of the above reproduced letter would show that no objection whatsoever qua the liability was raised. Besides the Letter of Commitment further undertaking was also given by Total Telecom on the stamp paper which is also reproduced herein, below for further clarification:-- "UNDERTAKING This Undertaking is issued by Total Telecom (Private) Limited ("Total Tel") on this 25th Day of March, 2006 in favour of the Pakistan Telecommunication Authority ("PTA"): Whereas: Total Tel has entered into a Share Purchase Agreement dated March 20, 2006 ("Pakcom SPA") under the terms of which it has agreed to purchase the entire shareholding of Comvik International B.V. In Pakcom Limited, which shareholding is referred to therein as the "Offered Shares", subject to the terms and conditions set out in the Pakcom SPA.

Now, THEREFORE, Total Tel under takes as follows:

(1) That Total Tel shall, in accordance with the Pakcom SPA acquire control of ownership and management of Pakcom Limited pursuant to the formal approval of the Authority of the transaction contemplated in the Pakcom SPA.

(2) That Total Tel shall be responsible for enabling Pakcom Limited to fulfil its obligations in respect of the outstanding license fees/ due and payable by Pakcom to the Authority.

(3) That Pakcom shall fulfil its roll-out obligations as have been undertaken in the mobile cellular license dated April 19, 2005 issued, to it by the Authority ("License") and in the related Performance Bond dated June 7, 2005 issued by National Bank of Pakistan on behalf of Pakcom Limited which shall expire on April 19, 2008 ("Performance Bond") and in the event there is any remaining obligation under the License to maintain a performance bond beyond April 19, 2008, the Performance Bond shall be replaced by Pakcom Limited and or Total Tel to ensure that any such residual obligations of Pakcom Limited are duly secured." (Emphasis provided)

12. The PTA, in our view, had created no hindrance or impediment but accepted the change of ownership by emphasizing that amount due must be paid within 60 days. The change as suggested by Pakcom was accepted by means of letter dated 19-5-2006; reproduced herein belbw for ready reference:-- "Subject: ACQUISITION OF SHAREHOLDING BY TOTAL TELECOM (PVT.) LTD., IN PAKCOM LIMITED.

Reference may be made to letters dated 16th May, 2006 received from Messrs Total teleom (Pvt.)

Ltd., in response to PTA letter dated 15th May, 2006.

The authority has thoroughly considered the proposal and commitments furnished by Messrs Total Telecom (Pvt.) Ltd., vide above referred letters, and has decided that approval of NOC in principle may be issued to Messrs Total Telecom (Pvt.) Ltd., for materializing the proposed transaction subject to fulfillment of all requirements, and under the following conditions:-

(1) that Messrs Pakcom shall make part-payment of US$ 05 Million instead of US$ 01 Million as proposed;

(ii) that the timeline for payment of payable liabilities of 2nd and 3rd instalments including late payment surcharge thereon shall be paid within 60 days instead of 120 days as proposed;

(iii) that the Confirmation from Messrs Deutsche Bank for provision of funds to pay all the outstanding and other payable PTA liabilities shall be provided accordingly; and

(iv) that the NOC issued for the said purpose shall not be used for transfer of license issued to Pakcom Limited in any manner directly or indirectly to any third party;

(3) Messrs Total Telecom (Pvt.) Ltd., is hereby advised, if agreed, make payment of US$05 Million immediately and fulfil other requirements as mentioned above at the earliest. (emphasis provided).

(Sd.)

Kamran Ali Director General (L&R)."

13. On the basis of what has been discussed herein above and relevant correspondence, it can be inferred safely that the dispute between the parties mainly revolves around the core issue of nonpayment of PTA dues and non-honouring of various assurances and commitments for more than five years. Except initial payment made along with their acceptance letter dated 18-4-2005 the petitioner has not paid any other sum due on one or the other pretext. The details of correspondence as referred to above between the parties would show that since the inception of this dispute, the conduct of PTA is found cooperative and accommodating the petitioner out of the way with a desire that huge outstanding financial liabilities against them may be recovered but the petitioner has failed to abide by their commitment as evident from the said correspondence coupled with their record of frivolous litigation.

14. In order to examine the merits of other contentions raised on behalf of the petitioner and to define their limits, contents of two documents i.e. Show-cause notice dated 1-12-2006 and reply to show-cause notice dated 27-12-2006 are most relevant and important. A bare perusal of these two documents would reveal that most of the technical objections raised by the petitioner before the High Court in writ petition/F.A.O. And now before this Court in their petitions for leave to appeal do not find place in their earlier defence. In our considered view these objections are nothing but an afterthought. It is abundantly clear from the record that for the time being the petitioner has only one goal to achieve i.e. To delay the payment of outstanding dues to PTA till they succeed to find out some suitable buyer of their product in the market enabling them to arrange the payment of the amount due. The fairness on the part of PTA is evident from their each and every action and correspondence brought on record by the petitioner or by PTA themselves with their concise statement which revealed that they have obliged and accommodated the petitioner out of way in all respects but still they failed to receive any positive response from them which culminated into litigation. The controversy was set at naught by the Authority at first occasion by means of order dated 15-6-2006, operative portion whereof is reproduced herein below for ready reference:-- "ORDER Keeping in view the foregoing circumstances, The Authority has thoroughly considered the request of Messrs Pakcom Limited along with its justifications and reasoning to default in payment of initial license fee, its efforts of entering into Agreement for ensuring the payment of PTA liabilities and the proposal and commitments furnished by Messrs Total Telecom (Pvt.) Ltd., vide above referred letters, and primarily the interest of more than 0.35 million subscribers of the licensee and has decided to withdraw show-cause notice dated 6th February, 2006 and to hereby APPROVE the transfer of 61.25% shares of Messrs Pakcom Limited owned by Comvik International B.V along with management control of the licensee to Messrs Total Telecom (Pvt.) Ltd., and under the following terms and conditions:

(a) That Messrs Pakcom Limited has deposited part-payment of US$ 0.5 Million and shall deposit the rest of the payable liabilities towards PTA including 2nd and 3rd instalments and spectrum charges along with late payment surcharge thereon within 120 days from the issuance of this NOC.

Messrs Total Telecom (Pvt.) Ltd., shall also accept and own unconditionally all the liabilities of Comvik International B.V. With respect to Pakcom Limited including the terms and conditions of the license;

(b) Licensees name and brand name shall not be changed till the payment of total initial license fee (US$291 Million);

(c) Messrs Total Telecom (Pvt.) Ltd., and Messrs Pakcom Limited shall operate and continue to exist as independent entities as per laws of Pakistan and shall not converge into single entity till the expiry of the license. However, at the time of renewal of license, if such request receives from the License, then it shall be decided in accordance with the prevalent laws at that time;

(d) The existing Performance Bond dated June 7, 2005 issued by the National Bank of Pakistan ("Performance Bond") on behalf of Pakcom Limited along with the related Counter Guarantee issued to secure the Performance Bond shall both expire on April 19, 2008 and if there is any remaining obligation under the Pakcom license to maintain a performance Bond after April, 19, 2008 then Pakcom Limited of its then affiliates shall furnish the same in favour of the Authority;

(e) The year 1 and year 2 network roll out targets in Appendix 1 to the Pakcom License stands merged into single target for year 2 and that the start of the period for the roll-out shall commence on July 1, 2006, both as per details in letter dated March 27, 2006 from Pakcom Limited;

(f) Case No, C.O. 8 of 2005 pending before Lahore High Court, Rawalpindi Bench, Rawalpindi shall be withdrawn.

(g) The Licensee shall comply with and fulfil all the requisite requirements and submit requisite documents under rule 11 of Pakistan Telecommunication Rules, 2000 and regulation 14 of Pakistan Telecommunication Authority (Functions and Powers) Regulations, 2004 requirements under SOP made by the Authority for such transactions, Companies Ordinance, 1984, its amendments and SECPs rules, regulations and guidelines pertaining to Companies;

(h) That both the licensee and Total Telecom (Pvt.) Ltd., will advertise in the leading daily Newspapers, i.e., Urdu and English, of major circulation for three consecutive days regarding the said change and undisclosed liabilities, if any, will be borne by Messrs Total Telecom (Pvt.) Ltd.

(i) That if any information given or documents submitted by both the licensee and Messrs Total Telecom (Pvt.) Ltd., prove to be false and fabricated at a later stage and such information or documents have impact to frustrate the whole transaction, PTA may take legal action in accordance with section 23 of the Act;

(j) However, in case of failure on the part of Messrs Total Telecom (Pvt.) Ltd., for discharging liabilities in accordance with the commitments made in the above-referred letters, the acceptance letter and in accordance with license, PTA may take legal action in accordance with section 23 of the Act.

(k) That the NOC issued for the said purpose shall not be used for transfer of license issued to Pakcom Limited in any manner directly or indirectly to any third party; (Sd.) (Sd.)

Member (Technical) Member (Finance)."

15. After having taken into consideration all the pros and cons of the controversy by mentioning necessary details qua the liabilities of Pakcom and after approving the change of ownership, Pakcom was asked to make the payment due and clear all the outstanding liabilities within a period of 120 days to be commenced w,e,f, 15-6-2006. It is to be noted that compliance could not be made and a request was made to get the above stipulated period extended by means of letter dated 3-11-2006 which is reproduced hereinbelow to see how the Order of the Authority was flouted:- "November 3, 2006 Chairman, Pakistan Telecommunication Authority, Jinnah Avenue, Islamabad.

Subject: Request for extension of time to pay instalment license fee Dear Sir, Pakcom Limited is a licensee of the Authority for provision of Cellular Mobile Services in Pakistan tinder the brand name of "Instaphone" since April 19, 1990 which was revalidated by PTA on August 12, 1997. It has been providing these services to the very satisfaction of its customers and Authority in accordance with the terms and conditions contained in the aforesaid license.

Subsequent to the renewal of the license in April 2005, Messrs Millicom decided to exit and all its shareholding to Messrs Total Telecom (Pvt.) Ltd., after necessary approval by the Authority. The Authority vide its determination dated June 15, 2006, allowed us a period of 120 days to complete the process of fund raising for the license fee and new all outs.

We are pleased to inform you that process of fund raising is in its final stages and is expected to be completed shortly. We therefore, request the Authority to grant us time to pay the license fee by November 30, 1996.

Meanwhile we are enclosing a Cheque No, 0157757 dated 3-11-2006 for an amount of Rs,60,620.000 (equivalent to One Million US Dollar) to show our seriousness and sincerity towards fulfillment of our obligations under the licence. (Emphasis provided)

Thank you very much for your consideration of this request. Yours truly, (Sd.)

Shahid Firoz Chief Executive."

16. The above said request was not accepted and it was decided to recover the outstanding liability by means of letter dated 6-11-2006 which is as follows:-- "No, PTA/M(F)/Misc Subject: REQUEST FOR EXTENSION OF THE TIMELINE TO PAY INSTALMENT OF LICENSE FEE Please find enclosed a letter dated November 3, 2006 received by Member (Technical) from Messrs Pakcom Limited (Instaphone).

(2) The request is not acceptable as it violates the license conditions. Please take all out action to recover the amount as per the determination issued by the Authority and as per clause of the license. In case of default please take action to cancel the license as per rules regulations and license conditions. (emphasis provided)

(Sd.)

(S. Nasrul Karim A. Ghaznavi) Member (Finance)."

17. It may not be out of place to mention here that request for extension of time to pay instalments of license fee was made by means of letter dated 3-11-2006 (reproduced above) is indicative of the. Fact that the outstanding liability was never disputed but the plea of petitioner was that the commitment could not be honoured due to the process of fund raising which was in its final stage and expected to be completed shortly. A cheque dated 3-11-2006 equivalent to one million US $ was also sent to show their sincerity for fulfilment of their obligations under the license. However, the entire due amount was not be paid which resulted into issuance of second show cause notice dated 1-12-2006, relevant portion whereof is reproduced herein below for ready reference:- "NOW THEREFORE THE LICENSEE i.e. Messrs Pakcom Ltd. (InstaPhone) is hereby required to remedy the aforementioned contraventions by paying the amount of 2nd 3rd and 4th installments, the annual spectrum charges, USF charges, R&D and ALF Charges and the Numbering Charges, all with late payment charges in accordance with clause 4.2.2. Of the license, within fifteen days of the issuance of this notice and to show cause and explain, in writing, within thirty (30) days of the issuance of this notice as to why any of the enforcement orders prescribed in section 23 of the Act including but not limited to suspending or terminating the license or imposing additional conditions or appointing an administrator for managing affairs of the licensee, may not be passed.

THE LICENSEE IS INFORMED FURTHER that not responding to this notice by the licensee within the aforementioned stipulated time period of thirty (30) days from the date of issuance of this notice will also justify the Authority to pass any of the aforementioned enforcement orders against the licensee.

This show-cause notice is being issued without prejudice to any action that may be taken by the Authority or warranted under the law as against the licensee for or in respect of the above mentioned contraventions taken noticed of by the authority or any other provisions of the law." The above show-cause notice was responded by means of letter dated 27-12-2006 with the following submission:-- "(1) The Authority is well aware that Pakcom is the pioneer of Pakistans telecom sector having obtained a license to own and operate Cellular Mobile Telephone network through Open International Bidding on April 19, 1990 and revalidated on August 12, 1997 (hereinafter referred to as "Original License"). The original license was for AMPS, subsequently DAMPS but not subjected to any fees/charges on account of (i) Annual Spectrum Charges (ii) `USF charges (iii) R&D Charges, and

(vi) Annual License Fee. It may however be stated that the latest license obtained by Pakcom on April 18, 2005 (hereinafter referred to as "New License") is subjected to the aforesaid in addition to the Initial License Fee.

(2) The Pakcom would take pride in it being in the telecom sector for more than 16 years and has never defaulted on its financial obligations let alone violation of terms of license, muchless persistent violation. You are well aware that subsequent to the announcement of the Telecom Policy in 2004, there was however uncertainty and confusion about the fate of the company among its subscribers and hundreds of employees of Pakcom when Millicom International Cellular, the previous majority share holder announced its decision to abandon the project and even surrender the license against the interest of all stake holders. The minority shareholders then decided to accept the challenge and save Pakcom and its subscribers and the license.

(3) Millicom International Cellulars decision to leave Pakistan and abandon the license led to some delays in making timely payments; however the issues of late payments stood resolved and were consigned to history when the determination of Authority was announced on June 15, 2006. It may therefore be borne in mind, that Pakcom be seen in the light of circumstances unfolding after the aforesaid determination.

(4) Pakcom has consistently reiterated its contentions to honour its obligations under the license and to rollout services based on state of the art CDMA 2000 EVDO technology., Annual License Fee, USF and R&D Charges:

(5) At the very outset, attention of the Authority is invited to clauses 4.1.2.1; 4.1.2.2. And 4.1.2.3. Of the license wherein it is categorically stated and provided that payments to be made to the Authority on account of ALF, USF and R&D Charges should be on the basis of gross revenue FROM LICENSED SERVICES minus inter-operator payments and related PTA/FAB mandated payments.

(6) Our revenue from the LICENSED SERVICES began with the grant of the new license dated April 18, 2005, thus no charges on the aforesaid accounts are payable by us prior to that date. In fact, your calculations are based on 12 calendar months revenue generated by Pakcom which in reality and in the light of the aforesaid provisions of the license be based on 8 months, from May 2005 till December, 2005.

(7) The Authority through its, letter No,PTA/Finance/Mobile/ Instaphone/288/2006, dated November 02, 2006 calculated the final figures as follows:.

(1)Annual License Fee:Rs. 8,759,645 (2)USF Charges: Rs.

26,428,934 (3)R & D Charges: Rs. 8,809,645

(8) In fact even the figures given in this letter for Annual License Fee and figures given in the Notice are inconsistent. It is therefore submitted that the amounts and figures in questions be reconciled, based on 8 months revenues for resolution and settlement of fees in accordance with the aforesaid clauses of the license.

Numbering Charges:

(9) First of all, it should be noted that according to proviso to Rule 18 of the Numbering Allocation Rules 2005, no fees/charges should be charged for the numbers allocated for less than six (6) months. Since the new license was granted in April 2005, thus there should be no charges on account of numbers allocated prior to June 2005 as it falls within the proviso of Rules 18 of the aforesaid Rules. For convenience, this is referred to as 3rd year charges.

(10) Our abovementioned contention had been conveyed to the Authority vide our letter dated November 21, 2006 which is still pending before some department (wing) of the Authority as per your intimation expressed in your letter dated November 24, 2006. It was however expressed that a payment of Rs,6,124,500 be paid while the issue of 3rd year numbering charges, is pending. Now, in the Notice the amount of Rs,9,366,750 has been demanded as payable by us without letting us know as to the status of pending dispute about 3rd year numbering charges. This needs to be resolved in the light of our aforesaid submissions, and adjusted towards final liability regarding numbering charges.

(11) In any event under a separate cover we are submitting a cheque No,0161236 dated 29-Dec- 2006, to pay off the sum of Rs,6,124,500 with hope that the issue is resolved and we are informed accordingly.

Annual Spectrum Charges:

(12) This has been even a matter of concern for the entire telecom sector and a representation about this had been made to the Ministry of IT and Telecommunications with a request that "annual Spectrum Charges need to be worked out in a transparent manner. The same may then be recovered from each of the users in the proportion of its use by them." [emphasis supplied]

(13) It may also be noticed that the new regime of Annual Spectrum Charges came in with the passage of "Mobile Cellular Policy" which was promulgated in January, 2004. We were not under its purview until April 2005 when new license was granted. The amount so claimed is with effect from January, 2004 while in our case it should be worked out and charged from April 2005.

(14) Furthermore, we have been allocated 7.38 MHz +7.38 MHz frequency and it is clear from the policy as well as terms of our lencse that Annual Spectrum Charges are payable on the basis of per MHz per annum use of that frequency. We believe that we have been charged on the basis of 10MHz + 10MHz, which is against the very terms of the license. We therefore, submit that our submission be accepted and amount revised so that it may be settled.

Initial License Fee:

(15) Pakcom reiterates its intentions to honour the obligations under the license keeping in view the agreements put in place for the planned rollout of CDMA 2000 EVDO REV A technology based services. In this regard you are well aware that to meet the license obligations and to support the new rollout Deutsche Bank has been mandated to raise the required additional funding in the international market.

(16) We are pleased to inform you that the necessary agreements for the financing of 5 million lines network have already been signed. However, the fund raising process for the balance is still not complete although as per earlier expectation it was to be completed in 120 days from the date of your determination. The causes of delay are attributable to the recent developments in the CMT sector in Pakistan namely the announcement made by Millicom to abandon even their EGSM license.

(17) As far as the 4th instalment is concerned, our submission is that as per clause 4.1.1., the trigger date is October 18, 2006. The license has 180 days from the trigger date as per clause 4.4.4. Of the license, to make the payment. All efforts are being made to ensure there is no delay or default on this count.

It is therefore most respectfully submitted that in the light of the foregoing and the fact that Pakcom has further paid a sum of Rs,60,620,000 equivalent to One Million US Dollar, through a Cheque No,015775 dated 3-Nov-4 towards its obligations under the license, there is no violation of any terms of the license since there is no negligence or indifference on the part of Pakcom towards its obligations under the license. If the Authority considered the delay as default or violation, we would respectfully submit the violation (which is not conceded) is not persistent. We therefore have to say that the Notice is uncalled for and unwarranted under section 23 of the Telecommunication (Re-organization) Act, 1996. The same may. Kindly be recalled and withdrawn forthwith.

We further request that before any decision, determination or order is passed by the Authority on any item which is the subject matter of the Notice and Reply hereinabove, the Authority may graciously afford us an opportunity of personal hearing in the very interest of justice and circumstances of the issues as explained hereinabove. We are also seeking moratorium for which a separate and detailed application is being filed before the Authority.

We assure you of our best co-operation at all times.

Yours truly, (Sd.)

Javaid Firoz Chief Executive Officer"

18. The PTA, however, issued determination order on 3-1-2008 and terminated the license of Pakcom. The stance of the Pakcom seems to be different and it was the first occasion when objection was raised qua Annual Spectrum Charges which were to be paid on the basis of per MHz per annum for the use of that frequency with the further observation that any charge on the basis of 10 MHz +10 MHz which would be against the terms and conditions stipulated in the license. The above objections were raised at the first occasion as mentioned herein above which is not only at belated stage but in contravention of their assurance given by means of undertaking, assurance on stamp paper and commitment which equates to that of "U" turn. Now it was the new stance that the due amount be claimed w,e,f, April, 2005 and after the allocation of 7.38 MHz + 7.38 MHz frequency. Once again the controversy was set at naught by the Authority by means of order dated 3-1-2008 pursuant to the provisions as enumerated in section 23(3) of the PTA (Re- organization) Act, 1996. It is worth while to mention here that Mr. Javed Feroze CEO entered appearance on behalf of the petitioner and requested that the matter be adjudicated in the presence of their legal counsel who was not available but subsequently did not press it and remained associated with the proceedings and canvassed his point of view which has been mentioned in the said order as follows:-- "The licensee briefed us through a presentation regarding its inability to clear the outstanding balance of the license fee from its own resources and stated that it has engaged Deutsche Bank

(DB) as its financial advisor to arrange the capital requirements which is looking at multiple options including a strategic partner for it. It further highlighted that Pakcom and DB have been continuously engaged in this process and have put in the best efforts to consummate a transaction as soon as possible to meet Pakcoms capital needs. The licensee in its presentation also held CDMA technology responsible for the delay in capital raising and said that the main reason for the delay in capital raising is the CDMA technology associated with Pakcoms deployment. It further submitted that it/the company has about 600 people on permanent and temporary basis and has infra structure of worth about five billion rupees and any adverse action will not only hurt the sponsors who have contributed to the development of the telecom section but will also hurt the exchequer.

Nutshell of the licensees submissions was to seek PTAs support with time to complete the fund raising."

19. The Authority has considered all the pros and cons of the controversy with diligent application of mind and the numbering charges were reduced to Rs,6,244,500 out of which the Pakcom has made payment of Rs,6,124,500 on 29-12-2006. The submission of the licensee for completion of its proposed transaction and paying the dues was also accorded in the light of its commitment to submit detailed business plan within two weeks and making payment of all its financial obligations under the license. The matter was adjourned but once again the Pakcom failed to honour its commitment mainly for the reason that "the licensee vide its reply of 29th November, 2007, to the letter mentioned above, submitted that its transaction with very important international group (SK ,Telecom) was expected to be completed within November, 2007 but the same could not be completed due to the political and related situation which has resulted in emergency in the country. The licensee further stated that the proposed visit of SK Telecom senior management to meet the leadership of Pakistan has also been delayed. For the foregoing reasons, vide the letter aforementioned, the licensee again requested for allowing it some time to complete the transaction". The authority on seeing the reluctance of the Pakcom to honour its financial commitment the licensee was called again to resume the hearing pursuant to the show-cause notice. Mr. Javed Feroze CEO appeared on behalf of Pakcom who once again requested for some time to finalize the transaction which was under active process which, however, could not be substantiated by any evidence. The Authority ultimately determined the outstanding liabilities of the Pakcom as follows:-- "Instaphone (Pak Corn Limited)

Outstanding Dues with Late Payment Charges till 31st December, 2007 Sr.

No.Particular Period Amount Late Payment ChargesTotal payable

1. Initial License Fee US$December, 2007US$ 94.850.000 Rs.838.017,500US$23.714,432 Rs.1,459,5623,290US$ 118,564,432 Rs.7,297,640,790

2. Annual License FeeDecember, 20059,090,045 4,396,874 13,444,919

3. R&D Charges December, 20059,048,045 4,396,874 13,444,919

4. USF Charges December, 200527,144,135 13,190,622 40,334,757

5. ASAF December, 200689,827,614 43,651,495 133,479,109

6. Numbering ChargesDecember, 2006120,000 120,000 Total Rs.5 ,973 ,205 ,339,Rs.1 ,525 ,259,15 Rs.7,498,464,494 All figures in the above table, except the first line (i.e. Initial License Fee), are in the Pak Rupees.

(Company did not provide the annual audited accounts for the year ended December 31, 2006, due to which annual fees for that period which are in addition to the above amounts, could not be calculated. The annual fees for the year ended December 31, 2007 have also become due as the year has closed. Pak rupee equivalent amounts have been calculated by using NBP US$ conversion rate as on December 31, 2007 i.e. Rs,61.55/US$."

20. The Authority also dilated upon the licensees financial viability to carry on with the license in the following manner:-- "Section 20 of the Act requires of us to see into and analyze, among other things, the technical and financial resources of the applicant applying for a license to provide telecommunication services or establish telecommunication systems before granting such a license. This statutory obligation of ours clearly shows that possessing the required technical and financial resources is one among the very pre-requisites for issuance of a license. We understand that a factor(s) which is made essential by the statute for issuance of a license must also be there for continuing with the possession of the license i.e., inter alia, the required technical and financial resources of the person /company holding the license.

Apart from persistently contravening the terms and conditions of the license by making continuous default as discussed above, regrettably, given the company/licensee profile and the outstanding liability, the company is not in a position to be viable any more. With the declining number of its customers, it is not possible for the company/licensee to discharge its mounting liabilities and, resultantly, continuing with the possession of the license. Its continuous default on financial obligations further exposes its financial position. The licensee has also failed to submit its business and technical plan.

(Emphasis provided)

Similarly, as mentioned in para 7.4, above, the licensee in its presentation submitted that it has 600 people on its strength as permanent and temporary employees while as per our record, also made available by the licensee itself to our Economic Affairs Division, strength of its employees as on 30th September, 2007 is 438." he matter was finally decided as under:-- "Order of the Authority The foregoing shows that the licensee has been extended every concession and has been fully accommodated in terms of time, which has been the licensees main concern and request.

However, it is observed that our concession, instead of being availed, has been abused every time and the licensee, despite the number of opportunities given to it, has failed persistently in showing a serious approach towards its obligations under the license and our regulatory directives.

Based on the foregoing facts, we are of the considered opinion that the licensees contravention of the terms and conditions of the license regarding its financial obligations, incorporated in the license on the strength of the provisions of the Act, is grave and persistent and we therefore, terminate its license No,CMT4/LL&M/PTA/2005 with immediate effect.

FAB is accordingly directed immediately withdraw the frequency spectrum assigned to Messrs Pakcom (Instaphone). The outstanding dues mentioned in para 10, above shall be recovered under section 30 of the Act for which proceedings shall be initiated forthwith."

21. After termination of the license, Pakcom approached the Honble Lahore High Court (Rawalpindi Bench) by whom enforcement order of PTA was set aside by means of order dated 15-1-2008 which is reproduced herein below for ready reference:-- "On courts requisition Zulqurnain Bhatti, Deputy Director (Litigation and Adjudication PTA with CNIC 35103-1352119-1, appeared and submitted that respondent authority has no objection to the acceptance of appeal (F.A.O. No,3 of 2008) and remand of case for its fresh decision by the respondent authority, in case appellant undertakes to make payment as per directions to be ultimately given by the respondent authority.

2. Raja Mahmood Akhtar, Advocate representing the appellant has no objection to the statement made by the Deputy Director Litigation and Adjudication appearing on behalf of the respondent authority, after remand of the case by this court.

3. In view of concurrence between the parties, above noted, instant appeal is accepted and impugned order dated 3-1-2008 passed by the Pakistan Telecommunication Authority is set aside, with the result that case is remanded to the same authority for its fresh decision after hearing the parties and the decision so given shall be binding on them. In case the appellant ultimately commits any default in compliance of decision, the respondent authority can take punitive action, as per law. Appellant is directed to appear before the respondent authority on 28-1-2008.

Parties are left to bear their own costs."

22. A bare perusal of the above reproduced order would indicate that Raja Mahmood Akhtar, Advocate has not objected to the statement made by the Deputy Director Litigation appearing on behalf of PTA that "respondent authority has no objection to the acceptance of appeal (F.A.O. No, 3 of 2008) and remand of case for its fresh decision by the respondent authority, in case appellant undertakes to make payment as per directions to be ultimately given by the respondent authority".

It is to be noted that financial liabilities were never contested which amounts to admission.

23. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court has portraited altogether a different case and raised various new points which were never agitated either before the Authority or learned High Court such as the scope and effect of section 12(3) of the Act qua its bearing on the meaning of the word fees and whether the amount due can be validly charged which is confiscatory and ex-proprietary, the effect of exercise of authority by the P.T.A on the basis of Policy directive of the Federal Government regarding the renewal of license which were ultra vices of the Act, discriminatory in nature of Mobile and Cellular Policy, 2004, no estoppel against law,. Liability to pay the license fee without grant of a frequency range of 10+10 MHz and 1800 MHz band, reduction of frequency allocated to Pakcom from 10+10 MHz to 7.38+7.38 MHz. The above mentioned points were never raised before learned High Court and the order dated 15-1-2008 passed by the learned High Court (Rawalpindi Bench, Rawalpindi) appears to be a consenting order. It is highly doubtful that the petitioner can agitate the same grievance through the fresh round of litigation in view of their undertaking to make payment as per directions ultimately given by the Authority, which exercise was honestly undertaken by the Authority as is evident from the order dated 4-3-2008. It is worth mentioning that the order of the Authority dated 4-3-2008 is in full conformity with the consent order dated 15-1-2008 passed by Lahore High Court, Rawalpindi Bench in F.A.O. No,3 of 2008 which is well discussed and well based order wherein all the factual and legal questions raised by the petitioner in their reply to show-cause notice dated 1-12-2006 have been comprehensively dealt with. Similarly, judgment of the Islamabad High Court dated 6-4-2009 is indicative of the fact that all the contentions raised by the petitioner have been dilated upon and decided in a comprehensive manner. These orders are, therefore, not open to interference. It is well settled proposition of law that the plea not raised before High Court during hearing of appeal cannot be agitated before A Supreme Court. In this regard we are fortified by the dictum laid down in the following authorities:- Khairati v. Aleem-ud-Din PLD 1973 SC 295; Ghulam Muhammad v. Abdul Qadir Khan PLD 1983 SC 68; Neelam Mawaz v. The State PLD 1991 SC 640; Mad Ajab v. Awal Badshah 1984 SCMR 440; Mairaj Sons v. United Bank Limited 1985 SCMR 987; Muhammad Ahmed v. Aziz Begum 1985 SCMR 1962; Sardaro v. Nazran Begum PLD 1985 SC 274; Muhammad Idrees v. Safia Begum 1986 SCMR 795; Muhammad Urfan v. N.-W.F.P. PLD 1984 SC 253; Gul Zarin v. Faizullah 1979 SCMR 501; S.B. Insurance Employees Union v. Sindh Labour Court 1975 SCMR 49; Nisar Ahmad v. Fazal Muhammad 1975 SCMR 190; Khalid Sharif v. The State 1975 SCMR 178; Begum Zahoorul Haq v. Muhammad Younus 1985 SCMR 1657; Muhammad Ibrahim v. Allah Pakhsh 1968 SCMR 143; Ghulam Haider v. Settlement Commissioner 1972 SCMR 559; West Pakistan Transport Co. v. Transport Appellate Authority PLD 1965 SC 248.

24. In first round of litigation the financial liability was never questioned either before the Authority or learned High Court (Rawalpindi Bench). Had an objection been taken by Pakcom at appropriate stage and opportune moment a determination would have followed and proper rectification might have been made. ##It is well settled by now that "ordinarily petitioner cannot be allowed, while invoking High Courts constitutional jurisdiction, to raise a completely new point for the first time before it. A point which was not taken before Lower Court or Tribunal or where plea was not raised before trial Court or Appellate Authority or in revision before High Court in a petition under Art. 199 or which was neither taken before the lower Court or tribunal nor in the writ petition cannot be raised at the hearing. The grounds C which should have been taken and urged in previous petition but had not been urged, cannot be permitted to be agitated between same parties in second round of litigation, notwithstanding the plea that the petitioner was ignorant about them." Nasir Ahmad Shaikh v. Nahid A. Shaikh (1986 SCMR 1621), Akhtar Iqbal Puri v. Settlement Commissioner, Lahore (PLD 1977 Lah. 249), Abdul Rashid v. Bank of Tokyo Ltd. (PLD 1974 Kar. 411), Muhammad Ismail v. Settlement Commissioner (1992 CLC 282), Ghulam Ali v. Muhammad Siddique (PLD 1982 Lah. 69), Allah Ditta v. Member, Board of Revenue (PLD 1976 Lah. 897), Financial Adviser and C.A.O. v. PB.LAB.

(PLD 1985 Lah. 420), Abdul Sattar v. Addl. District Judge, Rawalpindi (1984 SCMR 925), Jahangir Khan v. Sibtul Hassan (1990 CLC 1659), Khushi Muhammad v. Board of Revenue (PLD 1973 Lah. 829), Abdul Hai v. Chief Election Commr. (15 DLR 678), Abdul Qadir v. Lahore Commercial Bank Ltd. (1980 SCMR 280); Khanizaman v. M. Maqsood Khan (PLD 1985 Pesh. 69). It is worth mentioning that a new point involving investigation into facts cannot be taken up on the stage of leave to appeal. Postmaster General, Eastern Circle (E P), Dacca v. Muhammad Hashim (PLD 1978 SC 61), Crescent Jute Products Ltd., v. Muhammad Yaqub (PLD 1978 SC 207), Crescent Jute Products Ltd., Jaranwala v. Muhammad Yaqub (PLD 1978 SC 295), Ghulam Rasool v. Allah Bachaya (1985 SCMR 416), IG of Police Punjab v.

Mushtaq Ahmad Warraich (PLD 1985 SC 159).

25. We have, however, examined the prime contention raised at belated stage that Pakcom is not liable to pay the license fee because frequency range of 10 +10 MHz, and 1800 MHz band was not granted and besides that the allocated frequency was reduced from 10+10 MHz to 7.38+7.38 MHz which seems to be devoid of merit. For the sake of argument if the plea of petitioner regarding reduction of frequency from 10+10 MHz to 7.38+7.38 MHz is considered worth consideration, though after acceptance of terms of renewal of license they are stopped, then the sole plea could have been agitated and got resolved by them without upholding the due payment as per their commitment discussed at length in preceding paragraphs. More so upto the month of April, 2008 they have been availing the same frequency of 10+10 MHz, which is an admitted position. It may not be out of place to mention here that on 5th October, 2004 Pakcom was at liberty to exercise its choice and discretion as an option was given to select either GSM or CDMA. The Pakcom by exercising its option opted for CDMA. It would be appropriate to reproduce here at this juncture the letter dated 22-4-2004, which indicates the acceptance of CDMA system: "April 22, 2004 Mr. Naseem Ahmed Vohra Member Technical Pakistan Telecommunication Authority Headquarters, F-5/ 1 Islamabad.

Subject: Issuance of Code "0330" for CDMA Services Dear Sir, Pakcom plans to start CDMA cellular mobile service in Pakistan within this year. It is requested that a code "0330" may kindly be granted to Pakcom.

Pakcom shall be paying any code activation fee applicable in this regard.

Sincerely, (Sd.) xxx Sikander Naqi Executive Director"

26. It is worth mentioning that a comprehensive package was given to Pakcom for the renewal of license on 5-10-2004. It is not disputed that initially at the time of renewal of license AMPS/DAMPS was being used by Pakcom which being an old technology was to be substituted either with GSM or CDMA to meet the new horizons in the field of information technology. The Pakcom preferred to opt for CDMA, which was its free decision and never so advised or imposed by the PTA. It transpired from the scrutiny of record that a Committee was constituted to examine all the spectrum related aspects and made certain recommendations on the basis whereof a comprehensive package was issued by PTA by means of letter dated 15-4-2005 which is reproduced herein below for ready reference:-- "Pakistan Telecommunication Authority Headquarters F-5/1, Islamabad.

No .3-1/5/Instaphone/LL&M April 15, 2005.

Subject: RENEWAL OF PAKCOM LIMITEDS LICENSE This is with reference to Messrs Pakcom Limited letter dated February 22, 2005 on the above noted subject.

2. The Authority, while keeping in view the Cellular Mobile Policy 2004 and existing regulatory framework, offers Messrs Pakcom a comprehensive package which include the following financial and spectrum components:--

(i) Messrs Pakcoms license will be renewed (new license will be issued) on or before April 18, 2005;

(ii) A reasonable time (30 days) will be granted to Messrs Pakcom Ltd., to submit the performance bond under the renewed license with effect from the date of signing the license; and

(iii) Messrs Pakcom will pay the 50% of the total license fee (US$291 million) in instalments with an interval of six months each as per following schedule: (a)10% at the time of renewal(US$ 14.55 Million)

(b)10% 1st October 2005 (US$ 14.55 Million)

(c)10% 1st April 2006 (US$ 14.55 Million)

(d)10% 1st October 2006 (US$ 14.55 Million)

(e)20% 1st April 2007 (US$ 29.10 Million)

(f) 20% 1st October 2007 (US$ 29.10 Million)

(g)20% 1st April 2008 (US$ 29.10 Million); and

(iv) the rest of the 50% license fee shall be paid in ten equal instalments as per Cellular Mobile Policy and as it is applicable on other mobile licensees. The first instalment shall be paid in December, 2008.

(3) Furthermore, following two options with regard to frequency assignment are offered to Messrs Pakcom to select one out of these according to their choice.

Option-I (GSM)

Messrs Pakcom shall be allocated 824-834.1/869-879.1 MHz (50 ARFCNs) at the renewal of license to use GSM Technology subject to the condition that Messrs Pakcom will make all necessary arrangements to change its entire network from D-AMPS to GSM within a period of three years from the date of renewal of the license. The detail of ARFCNs is attached as Annex-A.

Option - II (CDMA)

Messrs Pakcom shall be allocated 824-830.415/869-875.415 (MHz (five CDMA frequency carriers) at the renewal of license to use CDMA Technology subject to the condition that Messrs Pakcom will make all necessary arrangements to change its entire network from D-AMPS to CDMA within a period of three years from the date of renewal of the license. However, Messrs Pakcom may continue to use 10 + 10 MHz of bandwidth i.e. 825-835/870-880 MHz during the said period for smooth transfer of existing cellular mobile network from AMPS/DAMPS to CDMA. The exact frequency carriers are attached as Annex-B.

4. The necessary permission/approval for renewal of license will be granted to Messrs Pakcom subject to its accepting the above mentioned comprehensive package in clear terms.

(Sd.) xxxx Ch. Muhammad Din Director General (Licensing)

Mr. Lain Williams Chief Executive Officer, Pakcom Limited 75-East, Blue Area, Fazal-e-Haq Road, Islamabad."

27. The said package was accepted by means of letter dated 15-4-2005, reproduction whereof would be quite inevitable to see the last stance of Pakcom:-- "Islamabad 15th of April, 2005 Dear Sir, We write with reference to the Pakistan Telecommunication Authoritys Letter No,3- 1/5/Instaphone/LL&M dated April 15th, 2005.

We accept the terms laid out in para 2 In ref to para.

3. We request that the license be renewed subject to our existing frequencies (825-835/870-880 MHz) in consonance with the letter and spirit of the policy and the law. (Emphasis provided)

As Pakcoms license will be renewed on or before 18th April we would ask for an immediate response.

Yours sincerely, (Sd.) xxx lain Williams Chief Executive Officer - Pakcom Limited."

A careful perusal of the said letter would indicate that para. 2 of the comprehensive package (letter dated 15-4-2005, already reproduced) along with all the conditions mentioned at S. Nos.I, II, III and IV quapayment was accepted in toto without any reservation or objection whatsoever. The option qua GSM and CDMA was not considered at all and renewal of license was sought on the basis of existing frequency i.e 825-835/870-880 MHz. It is to be noted that at the time of renewal of license Pakcom was using AMPS/DAMPS technology which being old one was to be replaced either by GSM or CDMA. The PTA as mentioned hereinabove had offered Pakcom GSM Technology with 10+10 MHz frequency or CDMA with 7.38+7.38 MHz frequency but Pakcom preferred to keep the old technology and were supposed to roll out the new CDMA technology and phase out the old technology of AMPS/DAMPS, which could not be done, may be due to financial crisis, effort to find out some new investors or non-availability of technical know how or lack of capacity. There is no denial of the fact that Pakcom was seriously looking for new investors as is apparent from the correspondence of Pakcom with PTA in order to get financial assistance due to meager resources which could be one of the reasons for not utilizing the new technology i.e CDMA, which requires a substantial change in infrastructure and a sound financial position. In the circumstances as mentioned hereinabove how the PTA can be blamed, rather it was desire of Pakcom to continue with the old system. It has also come on record that a Millicom was able to sell its shares to Total Telecom but the CDMA technology could not be introduced. The Pakcom never implemented the rolling out plan and continued to use the old technology. This was their own choice which was never thrusted upon them and thus nobody except Pakcom itself is responsible for it. Had Pakcom opted for GSM technology the question of lesser frequency would have never arise. In fact if 10+10 frequency is used for CDMA then its conversion would be needed WCDMA, 3G (Third generation)

Network, which is yet to be introduced in Pakistan. It is, however, to be kept in view that pursuant to the Mobile and Cellular Policy of 2004 the 3G technology was to be auctioned through bidding in a transparent manner for the existing and new operators. In this regard para.5.8 of Mobile Cellular Policy, 2004 is reproduced herein below for ready reference:-- "5.8 3G Spectrum The 3G spectrum will be sold by auction. Both the Licensed mobile cellular operators and the new parties interested in 3 G licenses will be able to participate in the process.

IMT20002 (UMTS) is becoming the de facto migration path from GSM to 3G in many countries.

Internationally agreed bands are assigned for 3G implementation based on W-CDMA/UMTS technology.

Since GSM is currently the main cellular technology in use in Pakistan, it is likely that the preferred technology for 3G will be UMTS.

The FAB is clearing the 3G spectrum and will complete this task by the end of 2005. Thereafter, spectrum in the 3G Bands of 2100 MHz will be made available for auction.

The 3G licenses will include a minimum urban coverage requirement and performance bond to ensure the spectrum is utilized in a manner beneficial to the country. The PTA will specify the License conditions.

Frequency in the 3G FDD/TDD bands will be divided into Lots of 5 MHz + 5 MHz with coverage specified in the License. Interested parties will be able to bid for more than one Lot. Failure to launch commercial service within a specified period of time will result in the unused frequency being recovered by FAB (through PTA). If there is 3G spectrum not taken up then as the demand rises further auction dates will be set."

29. In the above explained circumstances how the plea of discrimination can be raised. The PTA was under no obligation to renew the license of Pakcom on the old terms and conditions which could not be done in view of the provisions as enumerated in sections 8 and 1.0 of the PTA Act, 1996 and the Rules made thereunder which are reproduced herein below for ready reference:-

8. Duration and renewal of license.---(1) Subject to the Act and these rules, a license shall be granted for an initial term of not less than twenty-five years. Subject to sub-rule (2) and rule 9, after the expiry of the initial term the license shall be renewed on terms and conditions consistent with the policy of the Federal Government at the relevant time."

(2) If the license is not to be renewed, the Authority shall serve a written notice on the licensee at least one fourth of the initial license term and that notice shall terminate the license on the expiration of the initial term.

10. Grant and renewal of license.---(1) Subject to the Act and the Rules, a license shall be granted for an initial term of not more than twenty-five years consistent with the policy of the Federal Government for the time being in force.

(2) Subject to sub-regulation (3), after the expiry of the initial term, the license shall be renewed on terms and conditions consistent with the policy of the Federal Government in force at the relevant time.

(3) If the license is not to be renewed, the Authority shall inform the licensee by a written notice that the license shall not be renewed on the expiry of the initial term. The aforesaid notice shall be served on the licensee at least on or before the start of last quarter of the initial license term.

(h) contribution to universal service objectives; and

(i) contribution to other social or economic development objectives."

30. The above mentioned provisions are couched in a simple and plain language and hardly needs any scholarly interpretation. It has been made clear and that too without any doubt that the license shall be E renewed on terms and conditions consistent with the Policy of the Federal Government at the relevant time. For arguments sake if the plea of the petitioner regarding reduction of frequency from 10+10 MHz and 7.38+7.38 MHz is accepted worth consideration, though after acceptance of renewal of license they are stopped, then the sole plea could have been agitated and got resolved at first opportune moment but "piecemeal" mechanism was evolved to get the matter prolonged by them as mentioned in preceding paragraph.

31. In order to examine the merits of other contentions raised on behalf of petitioner and to define their limits, contents of two documents i.e show-cause notice dated 1-12-2006 and reply to show cause notice dated 27-12-2006 are most relevant. The plain reading of these two documents reveal that most of the technical objections raised by the petitioner before the High Court in their Writ Petition/F.A.O. And now before this Court in their petition for leave to appeal do not find place in their earlier defence (reply to the show-cause notice and other material correspondence) thus these objections are nothing but an afterthought. It is abundantly clear from the record that for the time being the petitioner has only one goal to achieve i.e to delay the payment of outstanding amount, till they succeed to find out some suitable buyer of their product in the market, from whom they may arrange payment of such funds. Fairness on the part of PTA is evident from their each and every action and correspondence brought on record by the petitioner or by PTA themselves with their concise statement, which revealed that they have obliged and accommodated the petitioner out of way in all respects, but still they failed to receive any positive response from them.

The detailed order of the Authority (PTA) dated 4-3-2008 is yet another stance on the basis whereof post remand proceedings deciding the case against the petitioner, two and half months further time was granted to the petitioner to make payment of the amount due in terms of the agreement lawfully executed between the parties. We are conscious of the fact that there can be no estoppel against law but the question would be as to whether these principles can be made applicable keeping the entire scenario in view. We must point out that Pakcom had executed the agreement freely at their own and accepted all the terms and conditions enumerated therein qua spectrum related aspects and financial liabilities.

32. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court remained critical of the contract executed between the parties with the submission that the commitments could not be honored by PTA. In this regard new Mobile and Cellular Policy, 2004 has been referred. The contention seems to be devoid of merit for the simple reason as mentioned above that all the terms and conditions enumerated in the contract have been accepted by the parties freely and at their own. In such view of the matter the contract does not fall within the ambit of coercion as defined in section 15 of the Contract Act, 1872 or undue influence defined in section 16 or fraud defined in section 17 or misrepresentation defined in section 18 or mistake as enshrined in sections 21 and 22 of the Contract Act. There is no cavil to the proposition that all agreements or contracts are made by the free consent of the parties. The consent is said to be free as provided under section 14 of the Contract Act, when it is not caused by coercion, undue influence, fraud, mis-representation and mistake subject to the provisions of sections 20, 20, and 22 of the said Act. There is no cavil to the proposition that:-- "In order to bind persons by their agreements, the consent must be full and free. Where a party is not a free and voluntary agent, or is unable to appreciate the full import of what he does, write or say, an important ingredient, which can render his act or words concurrence in what is done or proposed by another". It signifies to be of the same mind; to agree to give assent; to yield; to comply. It necessarily implies agreement as a free agent with the presence of the free mind and free will. In the dictionary of English law by Earl Jowitt the word "Consent", which is an essential ingredient of an "agreement", has been defined to mean "an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil of either side Consent presupposes three things a physical power, a mental power, and a free and serious use of them.

Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as delusion, and not as a deliberate and free act of the mind."

33. On the touchstone of the criterion as mentioned herein above the agreement in question has been examined and we are of the considered view that Pakcom had executed the agreement with its free consent.

34. In our considered view the contract has been executed in between the parties with their free consent and being binding in nature no escape would be available but to honour the commitments made by the parties. In case Pakcom was not satisfied with the contract it could have invoked various remedies i.e:-- "(1) that he may opt to rescind the contract; or

(2) that he may insist that the contract be performed, and that he may be put in the same position in which he would have been if not lured by the alleged fraud or misrepresentation.

(3) claim for damages or compensation. In this regard two precautions are to be noted:

(i) that the above said statement is subject to the rule enunciated in the exception to this section.

(ii) So far as rescission of the contract is concerned resort should be had to Section 35 of the Specific Relief Act, 1877."

35. No remedy whatsoever was availed by the Pakcom and according to the provisions as enumerated in section 19 of Contract Act does not entitle it to insist on an entirely different contract being performed. In this regard reference can be made to AIR 1929 Nag.

254. It is, however, to be noted that the liabilities under a contract cannot be avoided for the simple reason that contract was caused by one of the parties to it being under a mistake as to a matter of fact.

36. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court on behalf of petitioner has emphasized much on the principle "quid pro quo" which we are afraid cannot be made applicable in this case. Let we make it clear that "quid pro quo" literally means: "What for what; something for something". According to the Blacks Law Dictionary this term is used in law for giving one valuable thing for another and further that it is nothing more than mutual consideration which passes between the two parties to a contract, and which renders it valid and binding. The condition that there has to be significant relation between a fee charged and the services rendered is clearly and visibly present in the matter under consideration because fee is being charged for service rendered to each one who pays for it. The other two reported cases also lay down the same principles. In Mehboob Yar Khans case it was observed that tax is levied as a part of common burden while a fee is a special benefit or privilege."

37. We have also examined as to whether any undue influence was caused by the PTA in the light of provisions as envisaged in section 16 of Contract Act. "On careful survey of section 16 of Contract Act, it seems clear that under subsection (1) of the said section, three things must be proved before a contract can be said to be induced by undue influence, namely:--

(1) that the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other;

(2) that he uses that position; and

(3) that an unfair advantage over the other has been obtained by the use of that position.

Subsection (2) lays down rules for determining under what circumstances a person can be said to be in a position to dominate the will of another, enters into a contract with him and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the onus of proving that the contract was not induced by undue influence rests on the person in a position to dominate the will of the other (PLD 1965 Lah. 729) ". Keeping in view the above discussion we have no hesitation in our mind to hold that no undue influence whatsoever was exerted by the PTA. We are conscious of the fact that in the absence of free consent, contract is not sustainable or enforceable as it does not depict the true intent with the application of mind. It is well settled by now that "consent is free, when the activity of man, by which it is effective, works without obstacles to impede its exercise. The law upon the question of free consent is given in the statute itself, and therefore, the Court has to administer the law to a case when it comes within its provisions irrespective of the consideration whether the application of the provisions would or would not disfavour the abuse of moral influence or encourage moral cowardice. Consent obtained under duress, whether duress is physical or moral is not free consent. (AIR 1945 Cal. 218). Consent should not only be free but informed. Consent is said to be free when it is not caused by coercion undue influence, fraud, misrepresentation or mistake. Consent can be regarded as informed, when it is act of reason accompanied with deliberations of mind which knows right or wrong, good and evil, and also rights and obligations of the parties involved in the commission of the act. Since the oral consent was not informed, it cannot be set up as valid defence , (AIR 1985 HP 88) General averment that consent was not freely obtained is not enough to set up the plea that there was one of the vitiating elements enumerated under section 14. (AIR 1915 PC 7) ."

38. Now we intend to examine "fee" and "tax" and element of quid pro quo which according to Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court could not be appreciated properly in the judgment impugned. The "fee" and "tax" are not synonymous and interchangeable terms and there is a difference between the two. "The distinction between the "tax" and a "fee" is well established. A tax is a compulsory exaction of money by public authorities for public purposes enforceable by law and is not a payment for services rendered. The main distinction between them lies primarily in the fact that a tax is levied as a part of common burden, while a fee is a payment for a special benefit or privilege . "

39. The above distinction also finds support from the following authorities:-- #TBS (1) #TBE The Commissioner, Hindu Religious Endowments, Madras v. Sir Lakshmindr Thirtha Swamiar of Shirur Mutt (AIR 1954 SC 282).

(2) Sudhindra Thirtha Swamiar and others v. The Commissioner for Hindu Religious and Charitable Endowments, Mysore and another (AIR 1963 SC 966).

(3) Nagar Mahapalike, Varanasi v. Durga Das Bhattacharya and others (AIR 1968 SC 119).

(4) The State of Maharashtra and others v. The Salvation Army, Western India Territory (AIR 1975 SC 746).

(5) Messrs Khyber Electric Lamps Manufacturing Limited and others v. Chairman, District Council, Peshawar (1986 CLC 533).

(6) Trustees of the Port of Karachi v. Gujranwala Steel Industries and another (1990 CLC 197).

40. The above mentioned judgments were elaborately discussed in case titled Azad Govt. Of the State of J&K v. Mir Muhammad Naseer (1999 PLC (CS) 1173) and it was held as follows:-- "In all these judgments broadly speaking it is laid down that a tax is a compulsory exaction of money by a public authority for a purpose and is not a payment for any specific service rendered.

In respect of fee there is quid pro quo while in a tax it is absent. In the present case not only there is quid pro quo but there is absence of compulsory exaction because a tuition fee is paid by one who goes to the school and not by one who does not." (Emphasis provided)

41. The distinction between the "fee" and "tax" was also discussed in case of Abdul Majid and another v. Province of East Pakistan and others (PLD 1960 Dacca 502) and it was observed as under:-- "The distinction between a tax and fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is payment for special benefit or privilege". The High Court also referred to Mahboob Yar Khan and another v. Municipal Committee, Mian Channu PLD 1975 Lah.

748; Sh. Muhammad Ismail and Co. Ltd. v. Chief Cotton Inspector, Multan Division, Multan PLD 1966 SC 388; Indian Mica and Micanite Industry Ltd. v. Bihar (71) ASC 1182, 1186; Maharashta v. Salvation Army (1975) 3 SCK, 475." (Emphasis provided)

42. The said distinction was also examined at length in case titled Govt. Of N.-W.F.P. v. Rahimullah (1992 SCMR 750) as under:-- "A fee is charge for the services rendered by the Government to the persons from whom the fee is received. It is a consideration for the services provided by the Government or its agencies to the persons from whom the fee is collected. In Commissioner of Hindu/Religious Endowments, Madras v. L.T. Swamiar AIR 1954 SC 282 it has been observed as under:-- "No doubt, both tax and fee are compulsory exactions. But the difference between the two lies in the fact that a tax is not co-related to particular service rendered but is intended to meet the expenses of the Government and a fee is meant to compensate to Government for expenses incurred in rendering services of a special nature"

(Emphasis provided)

5. In Government of Andhra Pradesh v. Hindustan Machine Tools AIR 1975 SC 2037, it has been observed as follows:-- "It is quite clear that "fee" can be levied by any authority only for some service rendered by it to the person from whom the levy is exacted. Fee levies by any local authority can be justified only if there is some special service rendered to the person from whom fee is collected and the sum total of the activities of the public body like the Municipal Council cannot be taken into account for this purpose. Expenses by the Municipality in discharging its obligatory functions are usually met by imposition of a variety of taxes and on that basis the levy of the fee could not be justified.

It is no doubt that in some cases it will not be possible to show with mathematical exactitude the precise co-relation between the amount realized as fee from one particular person and the services rendered to him. In a given case, it is also possible that the fee is realized from hundreds or thousands of persons and the corresponding services are also rendered to hundreds or thousands.

In that situation it may not be possible to show any strict correlation qua an individual except to indicate that C/e person who had paid the fee has derived a benefit in return. In such a case correlation between the fee levied and the services rendered may have to be determined having regard to the services rendered to the various persons and the benefits derived by an individual factory. (Emphasis provided)

43.. It is not understandable how it could be argued validly that the "fee" was demanded without rendering any service which cannot be confined within a limited sphere. The fee was to be paid in lieu of spectrum and frequency for which certain steps are required to be taken and which can be equated to that of a "technical service". The "requisite fee" agreed upon by the Pakcom is to be paid and the question of evasion thereof does not arise under the garb of "quid pro quo". The first litmus test could be as to whether there is any co-relation between the amount to be realized and the services rendered, benefit granted, business flourished and utilization made. The answer would be "yes" for the reason that the frequency allocated to Pakcom has been used by customers attracted, profit earned and foreign investors invited. This would not have happened without allocation of spectrum/frequency and in lieu thereof something is to be paid and that "something" was given the name of "fee" with mutual consent and an agreement to that effect executed which being binding is to be honoured. The inescapable conclusion would be that there is. Always "quid pro quo" in fee but such element is missing in tax which is compulsory exaction of money. In present case surely there is "quid pro quo" because fee is to be paid for having frequency and spectrum which cannot be free of cost.

44. As mentioned herein above the "Authority" has dilated upon all the controversial issues in a comprehensive, fair and transparent manner in its order dated 4-3-2008 which being well based does not call for interference. There is no cavil to the proposition that "when the Legislature entrusts to an authority the power to pass an order in its discretion, an order passed by that authority in exercise of that discretion is, in general, not liable to be interfered with by any higher forum and court unless it can be shown to have been based on some mistake of fact or misapprehension of the principles applicable thereto." Corporation of Calcutta v. Mulchand Agarwala (PLD 1956 SC Ind.

231) .

45. The special forums created under statute such like Administrative Tribunals and Authorities are "judges of the sufficiency of evidence and necessity, expediency and reasonableness of the action to be taken. The High Court in exercise of its jurisdiction under Article 199 cannot sit as a Court of Appeal and pronounce upon the sufficiency, quality or quantum of evidence on which the finding of an Administrative Authority its based. The High Court in writ jurisdiction can only examine the legality of the impugned order. Where discretion is Vested under the law in a statutory body the mode of exercising the discretion cannot be interfered with by the Court." Muzaffar Ali Shah v.

Registrar Co-Operative Societies (PLD 1968 Kar. 422), Abdul Hafeez v. Chairman Municipal Corpn.

(PLD 1967 Lah. 1251), Hassan Muhammad v. Settlement Commissioner (1982 SCMR 969), Budhu Ram v. Peare Lal (AIR 1952 All. 916) .

46. We may mention here that the power as conferred upon High Court under Article 199 of the Constitution cannot be exercised to examine the merits of the decision of the statutory bodies and to see whether the action taken or the order passed is correct on merits. The court, however, can examine as to whether the Authority has performed its functions within the jurisdiction so conferred and bona fidely. In this regard reference can be made to case titled Brundaban Chandra v. State of Orissa (AIR 1953 Orissa 121). It is also well settled principle that "when a statutory functionary acts ex facie in an unjust and oppressive manner, High Court may exercise its constitutional jurisdiction to grant relief to an aggrieved party keeping in view the circumstances of each case and nature of order passed, to determine whether a particular case was justiciable or not" A.F. Abadan v. Govt. Of Balochistan (PLD 1990 Quetta 70). In our view no justiciable cause is available.

47. It seems proper here at this juncture to mention that the contractual rights, commitments, undertakings and obligations have to be enforced through courts of ordinary jurisdiction which should not be interfered with by the High Court while exercising its Constitutional jurisdiction especially in those matters arising out of a contractual obligations. (Millat Tractors E.T. v. Govt. Of Pak (PLD 1992 Lah. 68), Ahmad Hassan v. Pakistan Machine Tools Factory (1990 CLC 2007), Sufi Muhammad Ramzan v. Secretary, Local Government and Rural Development Department, Punjab, Lahore (PLD 1987 Lah. 262), Pakistan Mineral Development Corporation Ltd. v. Pak. WAPDA (PLD 1986 Quetta 181). In such like eventualities the normal remedy to law being a suit for enforcement of contractual rights and obligations would be availed instead of invocation of Article 199 of the Constitution merely for the purpose of enforcing contractual obligations. The said view finds support from the dictum laid down in the following authorities:-- Ahmad Hassan v. Pakistan Machine Tools Factory (1990 CLC 2007), Lutfonnessa Ibrahim v. Province of East Pak. (PLD 1969 Dacca 779), Mohd. Din and Sons v. Province of West Pak (PLD 1969 Lahore 823), Muzaffar-ud-Din v. Chief Settlement Commissioner (1968 SCMR 1136), Miajan Ali v. Province of E.Pak (22 DLR 235), Momin Motor Co. v. R.T.A. Dacca (PLD 1962 SC 108), Chandpur Mills Ltd. v. District Magistrate Tippera (PLD 1958 SC 267), The State of Pakistan v. Mehrajuddin (PLD 1959 SC 147), Raghavendra Singh v. State of Vindhya Pradesh (AIR 1952 Vindh Pra. 13).

48. It hardly needs any elaboration that violation of a contract or failure to abide by the terms and conditions mentioned therein or to honour obligations arising out of an agreement cannot be decided in exercise of Constitutional jurisdiction and such controversies should be resolved by approaching the appropriate forums provided by law. Abdul Rahim v. Town Committee (1985 CLC 2805), Haji Noor Din v. C.C.I. And E (NLR 1978 Civ. Lah. 1114), Ashraf Ali v. Abdul Awal (PLD 1968 Dacca 962), A.F.M. Abdul Fateh v. Province of East Pak (PLD 1966 Dacca 178). "The superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent." Ataur Rehman Khan v. Dost Muhammad (1986 SCMR 598), Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt (1981 SCMR 291), Mian Muhammad v. Govt. Of West Pak. (1968 SCMR 935), Abdur Rashid Bhhiya v.

Province of East Pak (PLD 1970 Dacca 633), Zuhra Begum v. Sajjad Hussain (1971 SCMR 697), Landale and Morgan (Pak) Ltd. v. Chairman, Jute Board Dacca (1970 SCMR 853), Mahboob Alam v.

Secretary to Govt. Of Pak. (1969 SCMR 217), Umar. Daraz v. Muhammad Yousaf (1968 SCMR 880), Saghir v. Mehar Din (1968 SCMR 145), Abdur Rehman Khan v. Deputy Commissioner Jessore (PLD 1968 Dacca 367), Lutfonnessa Ibrahim v. Province of East Pak. (PLD 1969 Dacca 779), Mainuddin Ahmed v. Delimitation Officer (PLD 1965 Dacca 263), Province of East Pakistan v. Kshiti Dhar Ro (PLD 1964 SC 636), Abdur Rab Choudhury v. Registrar of Joint Stock Companies (PLD 1960 Dacca 541), Md. Nur Hussain v. Province of East Pak (PLD 1960 Dacca 31), Chand Miah v. IT and Sales Tax Officers (PLD 1960 Dacca 523), Parbatipur Industries v. Chief Secretary E.Pak (12 DLR 255), Md. Noor Hussain v. Province of E.Pak. (11 DLR 367), State Life Insurance Corp. Of Pak. Tobacco Co. (PLD 1983 SC 280), Md. Ibrahim v. Province of East Pakistan (15 DLR 703). A civil suit was filed but nobody knows what happened subsequently, what was the prayer made therein and whether it was withdrawn conditionally or unconditionally before invocation of the Constitutional jurisdiction.

49. We are conscious of the fact that "Supreme Court has complete power to do justice without fettering itself with any self-imposed restrictions which are no longer necessary in the context of the changed circumstances in which it does now function." Noora v. State (PLD 1973 SC 469) .

"However, the Supreme Court should not interfere with such findings where it is satisfied that same are reasonable and were not arrived at by disregard of any accepted principles relating to the appraisal of evidence in the interest of justice." (United Bank of India Ltd., v. Azirannessa Bewa (PLD 1965 SC 274), Kaushal Kishore v. Ram Dev (AIR 1958 SC 999), Jumman v. The State of Punjab (AIR 1957 SC 469), Pandurang v. State of Hyderabad (AIR 1955 SC 216), Muhammad Aslam v. State (PLD 1978 SC 298), Yara v. State (1985 SCMR 1861), Pirzada v. Abdul Marjan (1986 SCMR 1052). It must not be forgotten that "Supreme Court will not hesitate to interfere where the Court whose judgment is complained of has made no real endeavour to judge the case or having made such endeavour, has arrived at a result so atrocious or ludicrous that no reasonable man could possibly approve of it. In all such cases the Court will interfere because in the circumstances assumed a principle of natural justice has been contravened and the very basis of justice choked". Dilwar v. Crown (PLD 1952 FC 108).

50. In the light of what has been discussed herein above and the criterion laid down in numerous such like cases, we are of the considered view that Authority has examined the entire controversy with diligent application of mind and no justification whatsoever is available for any interference or exercise of jurisdiction under Articles 199 or 185(3) of the Constitution of Islamic Republic of Pakistan.

51. By no stretch of imagination it can be stated that "fee" is either confiscatory or ex-proprietary or violative of Articles 18, 23, 24 and 25 of the Constitution of Islamic Republic of Pakistan which was to be paid for Radio Frequency Spectrum which admittedly is owned by State as one of its precious resources. The provisions as enumerated in Article 18 are not attractive in this case because the right guaranteed by this Article is not an absolute right which is always subject to restriction in accordance with the provisions itself or any other law made in this regard. "There is no guarantee that what is regarded as an object of trade will continue to be so regarded for ever. When a certain article becomes contraband and ceases to be a legitimate object of trade there can be no question of any Fundamental Right to trade in that article. (Sheoshankar v. M.P. State Govt. AIR 1951 Nag. 58).

52. The interpretation of Article 18 has been made variously and the judicial consensus seems to be that the "right of freedom of trade, business or professions guaranteed by Art. 18 of the Constitution is not absolute, as it can be subjected to reasonable restrictions and regulations as may be prescribed by law. Such right is therefore not unfettered. The regulation of any trade or profession by a system of licensing empowers the Legislature as well as the authorities concerned to impose restrictions on the exercise of the right. They must, however be reasonable and bear true relation to trade or profession and for purposes of promoting general welfare. Even in those countries where the right to enter upon a trade or profession is not expressly subjected to conditions similar to this Article, it was eventually found that the State has, in the exercise of its police power, the authority to subject the right to a system of licensing, i.e., to permit a citizen to carry on the trade or profession only if he satisfies the terms and conditions imposed by the prescribed authority for the purposes of protecting and promoting general welfare" (PLD 1989 Kar. 219, Govt. Of Pakistan v. Akhlaque Hussain PLD 1965 SC 527).

53. The competent authority is at liberty to regulate its affairs and "a form of regulation is unconstitutional only if it is arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty. This principle of regulation of trade has been given judicial sanction in Pakistan."

(Mehtab Jan v. Municipal Committee, Rawalpindi PLD 1958 Lah. 929, PLR 1959 (1) WP 528).

54. There should however, be no doubt in it that "the imposition of a licence-fee and requirement of a licence from person desiring to carry on any occupation, trade or business is a restriction on the right to carry on the occupation, trade or business and its validity is liable to be questioned and tested. "The requiring of licence and imposition of a licence fee would be valid only if it is reasonable and in the interest of the general public" (Muhammad Yasin v. Town Area Committee, Jalalabad AIR 1952 SC 115, Ramjilal v. I.T. Officer AIR 1951 SC 97, T.K. Abraham v. State of TRA. Co. AIR 1958 KER 129, In Re Parameswa ran Pillai AIR 1955 Tray-Co. 268, Ratan Chandra v. Adhar Biswas AIR 1952 Cal. 72). Let we make it clear that "this Article does not guarantee a monopoly to a particular individual or association to carry on any occupation and if other persons are also allowed the right to carry on the same occupation and an element of competition is introduced in the business that does not, in the absence of any bad faith on the part of the authorities, amounts to a violation of the Article." (Emphasis provided). (Harnam Singh and others v. Regional Transport Authority Calcutta Region and others AIR 1954 SC 190).

55. In so far as Aiticle 23 of the Constitution is concerned it has got no relevancy with the controversy in hand and cannot be made applicable for the reason that "the word property used in the clause means the property in respect of which a right of proprietorship may be asserted. It includes both movable and immovable property. It includes every possible interest which a party may have in property, including abstract and concrete rights." (Raza Kazim v. District Magistrate, Lahore PLD1958 Lah. 706, State of Bomaby v. F N Balsara AIR 1951 SC 318, Narasimha v. Dist.

Magistrate AIR 1953 Mad. 476, S.M. Transports (P) Ltd., v. Sankabaswamigal Mudd AIR 1963 SC 864).

A fee can only be questioned where it is not imposed in accordance with law and the prescribed procedure and infringed the fundamental rights guaranteed under this Article. Where, however, a fee is imposed by a Competent Authority under a valid law, rules made thereunder or policy formulated and it cannot be said that it is capricious, administrative or executive affair and should be held to violate this Article. (Gopal Narain v. State Uttar Pradishair 1964 SC 370, Amalgamated Coalfields v. Janapada Sabha AIR 1964 SC 1013). In so far as Article 24 of the Constitution is concerned it recognizes as a matter of fundamental right and the sanctity of private property which is not the issue in question. Admittedly Pakcom is a licensee which in our opinion is only an incidental right attached to a substantive interest it will not be property for the purpose of Article

24. In this regard reference can be made to case titled A.B. Awan v. Government of Punjab (PLD 1983 FSC 23).

56.Now we intend to examine the provisions as enumerated in Article 25 of the Constitution which has been examined in depth on various occasions in different cases and judicial consensus seems to be that this Article "enjoins that all citizens are equal before law and are entitled to equal protection of law, i.e., all persons subjected to a law should be treated alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. The equality should not be in terms of mathematical calculation and exactness. It must be amongst the equals. The equality has to be between persons who are placed in the same set of circumstances. The dominant ideal common to both the expressions is that of equal justice. The guarantee contained in this right is only this - that no person r class of persons shall be denied the same protection of law which is enjoyed by other persons or other classes in like circumstances."

(Saeed ud Din v. Secretary to Govt. of N.-W.F.P. 1990 CLC 8, Pak Petroleum Workers Union v. Ministry of Interior) 1991 CLC 13, Sheoshankar v. M.P. State Govt. AIR 1951 Nag. 58, Gul Khan v. Govt. of Balochistan (PLD 1989 Quetta 8), Muhammad Hussain v. Abdul Rashid (PLD 1975 Lab. 1391), F.B. Ali v.

State (PLD 1975 SC 506), Mubarik Ali Khan v. Govt. of Punjab (1990 CLC 136), Zakaria v. Trustees of the Port of Karachi (PLD 1968 Kar. 73).

57.It must, however, be kept in view that though the persons similarly situated or in similar circumstances are to be treated in the same manner but the "equality clause particularly the provision about the r equal protection of the laws does not mean that all citizens shall be treated alike under all set of circumstances and conditions; both in respect of privileges conferred and liabilities imposed. Whatever else the expression equal protection of law may mean it certainly does not mean equality of operation of legislation upon all citizens of the State." (Mohd Mukhtar v.

Special Tribunal PLD 1977 Lah. 524). "Equality of citizens does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. The Article guarantees a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. It means that among equals the law should be equal and should be equally administered and that the like should be treated alike, and that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all individuals and classes to the ordinary law of the land". (Gut Khan v. Govt. of Balochistan PLD 1989 Quetta 8, Rifat Parveen v. Selection Committee through Principal, Bolan Medical College PLD 1980 Quetta 10, Sheoshankar v. M.P. State Govt. AIR 1951 Nag. 58, Sheoshankar v. The State ILR 1951 Nag. 646, O.M. Parkash v. The State AIR 1955 All. 275, Balochistan Bar Association v. Govt. of Balochistan PLD 1991 Quetta 7, Zakaria v. Trustees of the Port of Karachi PLD 1968 Kar. 73). In our view the classification which is not arbitrary, capricious or in violative of the doctrine of equality cannot be questioned. It is the basic requirement of law that all persons shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. (Jibendra Kishorc Achharyya Chaudhory and 58 others v.

The Province of West Pakistan and Secretary Finance and Revenue Depatt. Govt. of East Pakistan PLD 1957 SC 9, Golant Sarwar MoIlan v. Election Tribunal (PLD 1965 Dacca 86)

58.Pakcom has executed an agreement wherein all the liabilities and privileges have been incorporated and it has to remain within the defined sphere laid down in the agreement and cannot claim those privileges conferred upon Warid or Mobilink as the have to be treated in accordance with their agreement executed subsequently with PTA and admittedly the agreement of Pakcom is not similar to the agreement executed by Warid and Mobilink therefore, how the similar treatment can be expected or asked by Pakcom who has got its own package of privileges and liabilities enumerated and specified in the agreement.

59.We fail to understand how the feature of discrimination can be pressed into service in view of the failure on the part of Pakcom to honour its financial commitments and other liabilities on one or the other pretext as discussed in preceding paragraphs.

60. We have dilated upon the question that what is discrimination which means "making a distinction or difference between things; a distinction; a difference; a distinguishing mark or characteristic; the power of observing differences accurately, or of making exact distinctions; discernment. . But discrimination against a group or an individual implies making an adverse distinction with regard to some benefit, advantage or facility. Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context" (Shirin Munir v. Govt. Of Punjab PLD 1990 SC 295). We are conscious of the fact that no enactment shall be enacted and policy formulated which is discriminatory, in violation of the Constitution and such enactment or policy would be void to the extent of such violation. In this regard we find support from the dictum laid down in case titled Balochistan Bar Association v. Govt.

Of Balochistan (PLD 1991 Quetta 7). It would not be enough to say that a piece of legislation or a policy formulated thereunder is discriminatory but it is to be substantiated by applying certain well entrenched principles on the subject of discriminatory legislation which are as follows:--

(i) The expression equality before law or the equal protection of law does not mean that it secures to all persons the benefit of the same laws and the same remedies. It only requires that all persons similarly situated or circumstanced shall be treated alike.

(ii) The guarantee of equal protection of law does not mean that all laws must be general in character and universal in application and the State has no power to distinguish and classify persons or things for the purpose of legislation.

(iii) The guarantee of equal protection of laws forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The State has the power to classify persons or things and to make laws applicable only to the persons or things within the class.

(iv) The classification, if it is not to offend against the Constitutional guarantee must be based upon some intelligible differential bearing a reasonable and just relation to the object sought to be achieved by the legislation.

(v) Reasonableness of classification is a matter for the Courts to determine and when determining this question, the Courts may take into consideration matters of common knowledge, matters of common report, the history of the times and to sustain the classification, they must assume the existence of any state of facts which can reasonably be conceived to exist at the time of the legislation.

(vi) The classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the legislature is the best judge of the needs of particular classes and the degree of harm so as to adjust its legislation according to the exigencies found to exist.

(vii) One who assails the classification must show that it does not rest on any reasonable basis.

(viii) Where the legislature lays down the law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating the policy and purpose of law and laying down the standards or norms for the guidance of the designated authority in exercise of its powers, no question of violation of Article 25 arises. In case, however, the designated authority abuses its powers or transgresses the limits when exercising the power, the actual order of the authority and not the State would be condemned as unconstitutional. (Emphasis provided)

(ix) Where the State itself does not make any classification of persons or things and leaves it in the discretion of the Government to select and classify persons or things, without laying down any principle or policy to guide the Government in the exercise of discretion, the statute will be struck down on the ground of making excessive delegation of power to the Government so as to enable it to discriminate between the persons or the things similarly situated." (Ziaullah Khan v. Government of Punjab PLD 1989 Lah. 554).

61. None of the Above mentioned principles can be made applicable in the case of Pakcom in view of the chequered history of the case and conduct of the petitioner as discussed above. In view of the above mentioned principles it can be inferred safely that the Pakistan Telecommunication Re- organization Act, 1996 and Policy made thereunder is not discriminatory. The provisions as enumerated in section 12(3) hardly render any assistance to the case of petitioner and generation of surplus revenue can be made in any manner as may be deemed fit and proper, subject to law and therefore, levy of fee or tax in this regard cannot be termed as arbitrary or in violation of the Act or policy made thereunder. The enactment and the Policy were both in the knowledge of the petitioner and he should have not executed the agreement. It is too late in the day to raise such sort of objections to evade the financial liability which is the only core issue around which the entire controversy revolves. It may be kept in view that "there is a strong presumption that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. The legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest. In order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived to be existing at the time of the legislation." (AIR 1951 SC 41, 1950 SCR 869, AIR 1953 SC 215, AIR 1958 SC 956, M. H. Qureshi v. State of Bihar AIR 1958 SC 731, Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendulkar 1959 SCR 279). Where a statute and policy are challenged as being in contravention of the Constitution the bounden duty of the petitioner in such like cases would be that a clear and unambiguous allegation must be made. It is well settled by now that "it must be shown that the impugned statute is based on discrimination and that such discrimination is not referable to any classification which is rational and which has nexus with the object intended to be achieved by the statute. Under the law it is for the person who assails a legislation as discriminatory to establish that it is not based on a valid classification and this burden is all the heavier when the legislation under attack is a taxing statute" (East India Tobacco Company v. State of Andh Pra. AIR 1962 SC 1733). We have no hesitation in our mind to hold that no categoric allegations could be levelled except a few which have been discussed at length in the preceding paragraphs- and the only un-escapable conclusion would be that the Policy formulated by the PTA cannot be considered as discriminatory. There seems to be logic in not allowing existing license holders to participate in fresh auction of frequencies, a grievance now agitated by the petitioner. It seems that such conscious decision was taken by PTA to discourage monopoly and promote open competition in the field of communication as at the relevant point of time the petitioner being already in this field in Pakistan for more than ten years was definitely in a much better position to block the way of other participants in the auction to maintain their monopoly. In fact in the year 2004 issuance of two more licenses of Mobile Cellular was decided by PTA by means of an open auction and the following Radio Spectrums were made available:-- Spectrum Uplink-Downlink Spectrum Uplink-Downlink a. 4.8 MHz (24 Carriers)900 MHz Band 890- 894.8 MHz 935- 939.8 MHz+ 8.8 MHz (44 Carriers)1800 MHz Band 1710- 1718.18 MHz 1805- 1813.8 MHz b. 4.8 MHz 902.5-907.3 MHz 947.5-952.3 MHz+ 8.8 MHz (44 Carriers)1724.9-1733.7 MHz 1819.9 1828.7 MHz c. 5.0 MHz (3 Carriers)1900 MHz Band 1880-1885 MHz 1960-1965 MHz d. 4.0 MHz (3 Carriers)800 MHz Band 845 849 MHz 890-894 MHz

62. The bids were floated and the Telenor became the highest bidder after refusal of Space Telecom to make payment of $ 291 (US Dollars) which was paid by the Telenor and thus found entitled to have the Spectrum of its own choice. Warid emerged as the second highest bidder. In cases of renewal of licenses, the licensee had the option to select one of the available spectrums, details whereof have been mentioned above, subject to payment of $ 291 (US Dollars). The petitioner had selected a spectrum of its own choice but failed to honour its final commitment and had rightly been proceeded against for violation of the terms and conditions as enumerated in the agreement. How at this stage it can be argued that the concerned law and policy are discriminatory. The example of Telenor and Wand cannot be given being new entrants qua whom there is no dispute regarding payment of $ 291 (US Dollars). At the cost of repetition it is mentioned again that the payment of amount in question was never challenged and an application by invoking of the relevant provisions of Pakistan Telecommunication Authority (Functions and Powers) Regulation, 2006 for extension in time for making the payment was made on 21-2-2008 which was not accepted by means of order dated 4-3-2008. The evasion of financial liabilities cannot be allowed under the garb of untenable pleas. It is well settled by now that "the grant of leave is a matter of discretion and not of right. Where petitioner was found to be not entitled to equitable relief under Article 199 he was also not entitled to grant of discretionary relief of leave to appeal. The Constitution does not impose any limitation as to the circumstances which would justify or warrant the grant of leave to appeal."(Dauran Khan v. Naseer Muhammad Khan PLD 1964 SC 136, W. H. King v. Emperor AIR 1950 Born. 380, Hayat Muhammad v. Election Authority 1985 SCMR 1909, Jai Singh v. State AIR 1952 All. 991).

63. The judgment impugned being well based wherein all the contentions raised have been dilated upon and decided in a comprehensive manner hardly warrants any interference. As a result of what has been discussed herein above, these petitions are dismissed and leave refused.