ASAD MUNIR, J. --- By this single judgment, I propose to dispose of writ petitions Nos. 2997 of 2009, 3349 of 2009, 3221 of 2009 and 3211 of 2009, all of whom involve common issues of law and fact.
2. The petitioner company is engaged in providing long distance international telecommunication services pursuant to a Long Distance International ("LDI") License issued by respondent No. 1 under Sections 20 and 21 of the Pakistan Telecommunication (Re-organization) Act, 1996. The cause of its grievance is Respondent No. 2's letter dated October 1, 2009, whereby the petitioner company has been advised to deposit the Access Promotion Contribution, ("APC") for the month of June 2009 latest by October 15. 2009, "failing which its international incoming traffic will be suspended without further notice".
3. Before proceeding further, it may be stated that A.P.C. Is a contribution to be made by Long Distance International ("LDI") Licensees towards the Universal Service Fund ("USF") established under Section 33A of the Act by the Federal Government who is also responsible under Section 33B of the Act to administer the U.S.F. Which is to be utilized exclusively for providing access to telecommunication services to the people in the un-served, under-served, rural and remote areas of the country. By virtue of Section 4(k) of the Act, it is the respondent-Authority who regulates the A.P.C. To which end it has framed Access Promotion Regulations, 2005, part III whereof regulates and deals with A.P.C. According to Regulation 10(2) of the Access Promotion Regulations, 2005, an LDI licensee has to deposit the A.P.C. Within 90 days from the close of the month to which such payment relates and in case of default, the LDI Licensee as per Regulation 10(6) is liable to pay a fine of not less Rs. 500,000/- and a further fine calculated @ 1.5% per month of the amount not paid for each month during which the default continues.
4. It is not disputed that the petitioner company is liable to pay the A.P.C. As well as the fine imposed for late payment under the said Regulation 10(6) but the parties are at odds with each other on the question as to whether Respondent No. 1 has the right or power to suspend the international incoming traffic carried by the petitioner company upon its failure to pay the A.P.C.
Within 90 days from the close of the month to which such payment relates.
5. Learned counsel for the petitioner company has contended that in the event a L.D.I. Licensee is unable to pay the A.P.C. Within the time-frame of 90 days set out in Regulation 10(2), the respondent No. 1 has no power to suspend the incoming international traffic carried by the L.D.I.
Licensee but can only impose the fine which as per Regulation 10(6) is not less than Rs. 500,000/- plus a further fine calculated @ 1.5% per month of the amount not paid for each month during which the default continues. According to the learned counsel, there is no specific provision in the Act or Access Promotion Regulations, 2005, which allows respondent No. 1 to suspend the incoming traffic. It was further contended that the respondent authority cannot suspend the L.D.I. License without providing an opportunity of hearing to the petitioners through a show-cause notice. As regards the delay in payment of the A.P.C., it is pleaded that the remittances from abroad are received late and in the absence of timely recovery from entities living abroad, it is not possible for the petitioners to pay within time and that in any case delay in payment causes no loss to the U.S.F.
It is adequately compensated for delay on account of the fine payable and being paid by the petitioners.
6. On the other hand, the learned counsel for the respondent-Authority has defended the impugned letter and asserted that the same was lawfully issued in exercise of respondent- Authority's generic and specific powers available under Sections 4 and 5 of the Act as well as in view of Article 10.1.1(d) of the terms of the L.D.I. License which empower the respondent-Authority to suspend the incoming international traffic of an L.D.I. Licensee for non-payment of A.P.C. Within the time-frame of 90 days given in Regulation 10(2). Such power, it has been contended, is in addition to the sanction of fine provided under Regulation non-payment of the A.P.C. Within the requisite period. It is further argued that the contention of the petitioner-company, cannot be accepted as the continued and long default of an L.D.I. Licensee can mean its insolvency in which case the prospects of recovery by the respondent-Authority of its lawful dues would be ruled out and that it is only through the exercise of its right to suspend the incoming traffic that the respondent- Authority can safeguard its interests of ensuring recovery of its lawful dues.
7. I have heard the learned counsel for the parties who have advanced their respective arguments by reference to the provisions of the Pakistan Telecommunication (Reorganization) Act, 1996, the Access Promotion Rules, 2004, the Access Promotion Regulations, 2005 and the terms of the L.D.I.
License. Obviously, the Access 'Promotion Regulations, 2005, relied upon by the petitioner company, only allow imposition of fine but give no power to the respondent-Authority to suspend the incoming international traffic of a L.D.I. Licensee in case no payment is made within the 90 days period. This calls for a discussion if such power is available to the respondent Authority under the Pakistan Telecommunication (Reorganization) Act, 1996, Access Promotion Rules, 2004 or the terms of the L.D.I. License. It is the case of the respondent-Authority that under Article 10.1.1(d) of the terms of the L.D.I. License, it has were powers to suspend any right under the LDI License including suspension of the incoming international traffic. Article 10.1.1(d) is reproduced below:--- "In addition to the sanctions available under the Act, if the Authority determines that the Licensee has violated a provision of this License, Rules or Regulations, the Authority may by order impose one or more of the following sanctions, which the Licensee will promptly comply with:--- (a)
(b) (c) (d) The Authority may suspend one or more rights granted to Licensee under the L.D.I.
License for so long as the Authority considers appropriate in the circumstances."
8. Even if the respondent-Authority is assumed to have were powers to take action under the afore-quoted terms of the L.D.I. License. It is obvious that it cannot exercise such powers unless the L.D.I. Licensee has violated any provision of the Act, Rules, Regulations or the L.D.I. License. In the present case, what needs to be found out if the non-payment of the APC within the 90-days period is a violation of the Act, Rules, Regulations or the L.D.I. License. It appears that the obligation to pay the A.P.C. Cannot be found in the Act but is left to be provided for and dealt with by the Rules and the Regulations. Rule 5(2) of the Access Promotion Rules, 2004 as well as Regulation 10(2) are to the same effect as each of them allows payment of A.P.C. For U.S.F. Without fine for upto 90 days from the expiry of the month to which it relates. A perusal of the terms and conditions of the L.D.I. License shows that its Article 3.6 does provide for Access Promotion Contribution' to U.S.F. While Article 4.2.1 states that all contributions to the Funds shall be paid by the L.D.I. Licensee within 120 days of the end of the financial year to which they relate. It would thus appear that the time frame for payment= of the A.P.C. In Article 4.2.1 of the L.D.I. License is not consistent with Rule 5(2) of the Access Promotion Rules, 2004 or Regulation 10(2). This conflict has to be resolved in favour of Rule 5(2) or Regulation 10(2) as, according to its Article 3.1.1, the L.D.I. License is subject to the Act, Rules and Regulations and any conflict or inconsistency therein must give way to the provisions of the Act, Rules or the Regulations. It, therefore, follows that the obligation of an L.D.I. Licensee to pay the A.P.C. Within the time-frame of 90 days is created by Rule 5(2) or Regulation 10(2) and is not on account of Article 4.2.1 of the L.D.I. License which being in conflict with Rules 5(2) and Regulations 10(2) must be ignored. Thus, it cannot be said that non- payment of A.P.C. Within 90 days by the L.D.I. Licensee is a violation of the provisions of the Act or the terms and conditions of the L.D.I. License. This leaves us to address the crucial question if the non-payment of A.P.C. Within 90 days amounts to a violation of the Rules or Regulations and if so, can the respondent-Authority, in exercise of its powers envisaged in Article 10.1.1(d) of the L.D.I.
License, suspend the incoming traffic of an L.D.I. Licensee like the petitioner company.
9. As stated earlier, Rule 5(2) directs an L.D.I. licensee to pay the A.P.C., within 90 days of the expiry of the month for which it is due but prescribes no sanction or punishment if the payment is not so made. However, Rule 5(2) is to be read with Regulation 10(2) which not only prescribes the same period for payment of A.P.C. But also in case of delay in payment prescribes the sanction or fine of Rs. 500,000/- alongwith a further fine calculated @ 1.5% per month of the amount not paid for as long as the default continues. It is to be noted that consequent upon nonpayment of A.P.C. Within the prescribed time no other punishment except fine on an accumulative or progressive basis is provided even if the delay may become too long to the liking of the respondent-Authority. As such, any delay in the payment of the APC cannot be regarded as a breach of Rule 5(2) or Regulation 10(2) in respect which any consequence other that visualized in Regulation 10(6) would follow. Evidently, there is no remedy except Regulation 10(6) which is designed to provide damages or compensation for the delay in payment of the A.P.C. To the U.S.F. The penal action or punishment of suspension of incoming traffic that the respondent-Authority wishes to impose is nowhere provided in the Act, the Rules or the Regulations that the respondent-Authority has framed itself. In the circumstances, I see no violation of the Act, the Rules or Regulations as would entitle the respondent-Authority to act under Article 10.1.1(d) of the L.D.I. License and suspend the incoming traffic of the petitioner company. In any case, it is doubtful that the respondent-Authority can exercise such a power when the issue of delay in payment of the APC is expressly provided for by Regulation 10(6) which, as per Article 3.1.1 of the L.D.I. License, is to prevail in case of any conflict or inconsistency with the terms of the L.D.I. License.
10. Learned Counsel for the respondent-Authority has also referred to Section 4(1), Section 5(1) and Section 5(2)(b) of the Act to show that the respondent-Authority has the generic powers to do everything necessary to achieve its objectives of promoting and protecting the interests of the users of telecommunication services as well as the specific powers to monitor and enforce L.D.I.
License Licenses and that while exercising such powers it is implied that the respondent-Authority can suspend the incoming traffic of the petitioner company. I am afraid the aforesaid general provisions of the Act are not relevant in view of Section 2(a) of the Act which specifically refers to the APC as a payment made pursuant to the Rules made under the Act as well as to Section 4(k) which states that A.P.C. Is to regulated by the respondent-Authority. In the face of the comprehensive and self-contained provisions of Access Promotion Regulations 2005, including Regulation 10(6), I do not think there is need or reason to look elsewhere. In any case, the suspension o the incoming international traffic, being a harsh and punitiv step, it cannot be assumed or implied that the respondent Authority has the power to do so in the absence of suc power being unambiguously and expressly spelled, out I the Act the Rules, the Regulations and the L.D.I. License.
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15. It was also pleaded on behalf of respondent Authority that it has no option or remedy recover the dues but to suspend the incoming internatio traffic of petitioner company who has admitted its liabilit pay A.P.C. As well as the fine due but has delayed withheld the same for such a long time.
Such a plea ma valid to the extent that the Access Promotion Regulations, 2005, are deficient as they fail to provide any mechanism for recovery of the delayed A.P.C. But these Regulations do not in any way bar the respondent-Authority to recover such dues by filing a civil suit before the competent Court. In the light of the above discussion, I conclude that provisions of the Pakistan Telecommunication (Re-organization) Act, 1996, the Access Promotion Rules, 2004, the Access Promotion Regulations, 2005 and the terms of the L.D.I. License do not confer any power on the Pakistan Telecommunication Authority or authorize it to suspend the incoming international traffic carried by the petitioner company on account of delay in the payment of Access Promotion Contribution towards Universal Service Fund.
12. As a consequence Pakistan Telecommunication Authority's letter dated October 1, 2009, is declared to be unlawful and without lawful authority. Accordingly, the writ petition is allowed but with no order as to cost.