IQBAL HAMEEDUR RAHMAN, C.J.---By means of this single judgment, I intend to decide the instant F.A.O (No.47 of 2011) and connected F.A.O No.51 of 2011 (titled Independent Newspaper Corporation (Pvt.) Limited v. Pakistan Electronic Media Regulatory Authority) having synonymous facts and law arising out of the analogous controversy.
2. The salient features of the case are that the appellant namely Independent Newspapers Corporation (Pvt.) Limited is a Private Limited Company incorporated under the laws of the Islamic Republic of Pakistan. The respondent is a statutory body established under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ("Ordinance"). On 25-6-2008, after fulfilling all the codal formalities, a licence was issued by the respondent forGeo English for a period of 15 years i.e. From 2008 to 2022. The respondent received an amount of Rs.200,000 as licence fee from the appellant and thereafter the respondent has also received Rs.3,00,000 for the renewal of its licence.
It is asserted that the appellant and its associated media and news group "Geo" have developed a large viewership in Pakistan and abroad. Due to numerous factors, the appellant could not launch the Channel 'Geo Englishwithin the stipulated time, therefore, requests were made from time to time to the respondent for extension of time in launching the channel and to change the name/language of channel from 'Englishto 'Urdu'. The respondent acceded to the request for extension of time but did not reply the request for change of channel name/language. It is maintained that on 26-4-2011, the respondent received Rs.1,000,000 from the appellant as annual renewal fee for the year 2011 and the licence was accordingly renewed till 31-12-2011, but amazingly on 29-7-2011, the respondent arbitrarily, whimsically with undue haste and mala fide intention without providing the right of personal hearing to the appellant and total disregard to the principles of natural justice cancelled the licence vide Order/Notification No.10-2(82) STV-2007 dated 29-7-2011. In view of this backdrop, the appellant in F.A.O. No.47 of 2011 has prayed that the impugned order/Notification dated 29-7-2011 may be set aside.
3. In connected F.A.O. No. 51 of 2011, the appellant after narrating the same facts mentioned supra further added that after cancellation of licence, the appellant filed F.A.O. No. 47 of 2011 before this Court for suspension of said order/Notification and this Court on 19-8-2011 suspended the operation of impugned order/Notification, hence the appellant had a valid/operative licence. It is maintained that on 6-7-2011 the appellant had filed a Constitutional Petition No.D-2417 of 2011 before the High Court of Sindh at Karachi and the same was disposed of on 23-8-2011 with the direction to the respondent to decide the application of the appellant for changing the name and medium of its channel from English to Urdu positively within a period of two weeks while providing an opportunity of hearing to the appellant. On 30-8-2011, in pursuance of order dated 23-8-2011 passed in C.P. No.D-2417/2011, the respondent invited the appellant for personal hearing at Islamabad and consequently appellant's representative and its counsel appeared before the respondent and submitted the written formulations. However, vide the impugned order/notification dated 9-9-2011, the respondent declined the appellant's request. It is also stated that on 9-6-2008, the Independent Media Corporation (Pvt.) Ltd., (IMPL) an associated concern of appellant applied for grant of a licence in the name and style of 'Geo Tez'. This application was not decided by the respondent till IMPL in 2009 filed a Constitutional Petition No.1741 of 2009 before this Court and in pursuance of which, respondent was given a direction to decide the application of IMPL within two months. On 9-7-2011, the respondent refused the appellant's application for Geo Tez on the ground that the appellant wanted to change the name of its licensed channel i.e. 'Geo Englishto 'Geo Tez'.
The appellant has prayed that the impugned Order No.PEMRA-1 (23)/Secy/2011 dated. 9-9-2011 be set aside. It is also prayed that the change of medium of language from English to Urdu and change of name of the appellant's licensed channel from 'Geo Englishto 'Geo Tezbe allowed.
4. Both the F.A.Os have been contested by the respondent, who has also filed reply separately.
5. Learned counsel for the appellant contended that section 29(6) of the Ordinance provides for imposition of penalty in case of contravention of Ordinance, Rules and Regulations etc. Section 30(1)(c) of the Ordinance empowers PEMRA for cancellation of licence in case licensee fails to comply with any condition of licence. On 25-6-2008, PEMRA issued 15 years English news channel licence with the condition that broadcasting must commence within one year; that the appellant is licence holder of Geo News, Geo Entertainment, AAG (Geo Aur) and Geo English. It was pointed out that Geo English started broadcasting but it was a total commercial failure inasmuch as there was no viewership in English and no cable operator showed it; that on 2-6-2007, appellant submitted application for a fifth licence i.e. The first local Consequently, appellant filed constitutional petition before the Sindh High Court, Karachi; that on 12-12-2009, PEMRA adopted Rule 13 in PEMRA Rules 2009 to replace Rules 2002, which provides that:- "Maximum number of licenses that may be issued to a person shall not exceeds a total of four Satellite TV" According to learned counsel for the appellant Rule 13 has no legal relevance to these appeals .For the simple reason that the appellant has not challenged the grant of new licence and if these appeals are succeeded PEMRA will not need to issue a new licence to the appellant and position would remain that was prevailing when the impugned order of F.A.O No.47 was passed. Mr. Akram Sheikh further maintained that on 22-12-2009, the appellant applied to PEMRA for extension of time for commencing broadcasting with additional prayer to change its name as well as language from English to Urdu and despite formally informed that Geo English was not on air, PEMRA could impose penalty but did not impose the same. Consequently, on 5-1-2010 PEMRA refused the extension but remained silent as to the request for change of language and name.
According to learned counsel it was the steep mala fide on the part of PEMRA that it could impose penalty but did not impose the same and it could cancel the licence but did not cancel the same.
He expressed the view that PEMRA did not cancel the licence of Geo English through letter dated 5- 1-2010 because they needed Geo English/fourth licence to oppose Geo Super licence. It is further added that on 17-8-2010 PEMRA filed reply in constitutional petition before the Sindh High Court, Karachi stating that as Geo English was a valid fourth licence, therefore, licence of Geo Super could not be granted because Rule 13 of the Pakistan Electronic Media Regulatory Authority Rules, 2009 only allows four licences. It is stated that on 18-5-2011, Sindh High Court decided constitutional petition and declared that Rule 13 was inapplicable because licence application was submitted before adoption of Rules in 2009, however the matter was remanded back to PEMRA again. Feeling dissatisfied with the said order, the appellant challenged the said order before the Hon'ble Supreme Court of Pakistan and after hearing, the apex Court converted the CPLA into appeal and granted it, directing PEMRA to issue a new fifth licence of Geo Super within 3 days and thus PEMRA's efforts to use Geo English and Rule 13 ibid to deny Geo Super licence finally failed and PEMRA itself issued 5th licence for Geo Super.
6. It is further asserted that on 6-7-2011 petitioner filed petition before the Sindh High Court seeking direction to respondent to decide conversion request of Geo English from English to Urdu, but on 25-7-2011, 18 months after issuance of show cause notice and two days on ground of non- broadcasting. It is added that after obtaining injunction from this Court the appellant started broadcasting Geo English in English language and still on air today though no cable operator is showing it because no one wants to watch it in English. It is submitted that on 23-8-2011 in C.P.
No.D-2417 of 2011 when Sindh High Court was informed that cancellation had been suspended by this Court, heard the petition and directed PEMRA to decide application for conversion within 2 weeks and consequently on 9-9-2011, respondent refused the application for conversion from Geo English to Urdu, which was challenged in F.A.O. No.51 of 2011. He explains that one of the ground of refusal was that the respondent never granted such name change and language change to any other channel; whereas during the pendency of these proceedings respondent has granted the change of name and language to Express English to Express Plus and language from English to Urdu. According to learned counsel for the appellant, the appellant has spent Rs.854 million for said channel and got employed approximately 350 Pakistani youth. It is finally contended that the case of the appellant is based on admitted facts as well as documents, which have not been denied. To add vigor to his contentions, the learned counsel has relied upon the following citations:-
(1) Airport Support Services v. Airport Manager (1998 SCMR 2268).
(2) Mr. Justice Iftikhar Muhammad Chaudhry v. The President of Pakistan (PLD 2007 Supreme Court 578).
(3) Pakistan Synthetics Limited v. Waqar Ahmed (2011 SCMR 11).
(4) Nisar Ahmad v. Masood Akhtar (2011 SCMR 226).
(5) Zubaida Khatoon v. Tehmina Sajid Sheikh (2011 SCMR 265).
(6) Muhammad Zaheer Khan v. Government of Pakistan (2010 SCMR 1554).
(7) Siddique Khan v. Abdul Shakur Khan (PLD 1984 Supreme Court 289).
(8) N.-W.F.P. Govt. v. Abdul Ghafoor Khan (PLD 1993 Supreme Court 418).
(9) Maula Baksh v. Abdul Hamid (PLD 1971 (Lahore 512).
(10) Munira Rafique Anwar v. Khalid Javed Anwar (PLD 2005 Lahore 662).
(11) Arifa Sana Bajwa v. Additional District Judge (2004 MLD 794,
(12) S.I.T.E v. Qamar Hilal (2002 MLD 1569).
(13) Gulf Pacific Fertilizer v. Ali Akbar Enterprises (2000 MLD 1537, Lahore)
(14) Province of Punjab v. Abdul Majeed (1997 SCMR 1692)
(15) Salah-ud-Din Butt v. Punjab Service Tribunal (PLD 1989 Supreme Court 597)
(16) Anwar Mai v.. Ghulam Qadir Shah (1986 CLC Lahore 1457, Lahore)
7. Conversely, learned counsel for the respondent while opposing the F.A.Os with force contended that the licence was issued for 15 years, subject to the terms and conditions as provided in the Ordinance and Rules and Regulations made thereuner; that para 3 of the licence provides that "the licensee agrees to comply with all provisions of Ordinance, Rules and Regulations and the terms and Conditions of licence"; that under clause 3.1 of the licence, the "licensee is bound to commence its licensed service within 12 months of the issuance of the licence and to inform the authority within one month in advance of the start of the licence. The appellant was also bound to make its channel operational by 25-6-2009; that second request of the appellant for extension of time was refused by the respondent, which has never been challenged, therefore, the same has attained the finality. Then respondent proceeded to issue show cause notice dated 14-1-2010, which was replied by the appellant and consequently personal hearing was conducted on 1-2- 2010. Eventually, on 29-7-2011 the licence of the appellant was cancelled under section 30(c) of the PEMRA Ordinance, 2002 read with Regulation 27(2) of the PEMRA (TV/Radio Broadcast Operations)
Regulations, 2002 on account of contravention of Clause 3.1 of the licence read with Regulations 9(8) of the PEMRA (TV/Radio Broadcast Operations) Regulations, 2002 and Clause 3.6 of the licence. It is further asserted that through order dated 9-9-2011 the Authority rejected the application of the appellant for change of name and language. Learned counsel vigorously urged that the licence was cancelled on account of failure by the appellant to commence broadcasting within 12 months of issuance of licence as was mandatory under Clause 3.1 of the licence and this violation entailed a penalty of cancellation of licence and similar decision had been taken in respect of all licensees who had failed to commence broadcasting within 12 months which include Messrs Roze TV, Messrs Asset Plus (Pvt.) Limited", Messrs Recorder Television Network (Pvt.) Limited
(AAJ) and ZAM TV. He elucidates that the discretion of the Authority to impose a fine upto Rs.One million under to inspect under section 29 and violations coming forth as a consequence of such infringements.
This discretion to impose a penalty does not limit the power to revoke or suspend a licence under section 30 of the Ordinance. It is dynamically asserted that the Authority in its decision to grant one time extension vide letter dated 8-7-2009 had placed the appellant on notice that in view of Clause 34 of the licence if the broadcasting was not commenced within the extended period the licence would, stand cancelled. Learned counsel for the respondent has relied upon Messrs Thal International Airways (Pvt.) Ltd., v. Pakistan Electronic Media Regulatory Authority (2008 CLC 37 Lahore) and Pakcom Limited v. Federation of Pakistan (PLD 2011 Supreme Court 44). It is further asserted that the licence having been granted for a period of 15 years is subject to performance of obligations prescribed under the licence and such term of the licence cannot absolve the licensee of its performance of mandatory terms; that 15 years terms or payment of initial licence fee does not grant an irrevocable right or a licence at perpetuity; that the appellant contravened a mandatory obligation of the licence as a consequence of which licence was cancelled; that no other licensee except Express Television has been permitted a change of language combined with the change of name. The case of Express English is distinguishable from that of the appellant for the reasons that (i) Express English fulfilled its licensed obligations and operated its English channel for about 3 years before requesting for a change of language to Urdu; (ii) under section 18 (4) of the Ordinance read with Rules 6, 6(2) as well as Rule 8(2) of PEMRA Rules, 2002, categories are defined for grant of licenses and a licensee themselves elect which category and language they want a licence for. It has remained a policy of the authority that a licensee having opted for a certain category and language must first initiate its broadcast before it can make any request for exemption or alternations to categorization and (iii) no licensee who has not commenced to its broadcast has been permitted a change of name, language or category. It is further contended that grant of permission to change language or name prior to commencement of broadcasting as per licence terms and conditions would be discriminatory to others and not equitable. It is added that the decision of the Authority firstly cancelling the license vide order dated 25-7-2011 and thereafter refusing permission to change of name and change of language are quite in accordance with law.
8. I have heard the arguments of learned counsel for the parties at length and examined the material available on file with their able assistance.
9. Through F.A.O No.47 of 2011, the appellant has called in No.51 of 2011, the appellant has challenged the order/notification dated 9-9-2011; whereby request of the appellant to change the name/language of channel from English to Urduwas turned down.
10. First I would like to travel towards the cancellation of licence. Before proceeding further, it would be instructive to have a glance over the impugned order/notification dated 29-7-2011, which runs as under:- PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY ISLAMABAD No.10-2(82)STV-2007 29th July, 2011 Subject: Cancellation of Satellite Television Broadcast Station Licence "Geo English" on account of Non-operation.
Reference Satellite TV Broadcast Station licence No.10- 2(82)STV- 2007 dated 25th June, 2008.
The Authority in its 70th Meeting held on 25th July, 2011 considered and deliberated the cases of non-operational Satellite TV licensees.
2. After detailed deliberations, the Authority decided the followings; "Revocation of Satellite TV Channel on Account of Non Operational service Part 1 PEMRA has, so far, issued 87 Satellite TV channel licenses to different companies under the provisions of Section 19 of PEMRA Ordinance 2002 (Amendment Act 2007), out of which 77 Satellite TV channels are operational whereas remaining are non operational. The matter related to non operational Satellite TV channels which had not started their transmission as mandated by Clause 3.1 of the License Conditions, which requires a "licencee to commence its service within 12 months from the date of the issuance of the license and inform the Authority at least, one-month in advance from the date of start/commencement of the service was discussed. The below mentioned licensees have faired to comply with the above referred condition of the License to commence their services within the stipulated period of 12 months, and despite extensions granted by the Authority on their requests;
(i) Messrs Roze (Pvt.) Ltd. (Roze TV)
(ii) Messrs Independent Newspaper Corporation (Pvt.) Ltd. (Geo English)
(iii) Messrs Asset Plus (Pvt.) Ltd. (Mirror TV Network)
It was also brought to the notice of the Authority that two previously non operational channels i.e. Jinnah TV and Herald Entertainment have now commenced their services which are being monitored by PEMRA.
It was pointed out that PEMRA repeatedly directed the aforesaid licensees to start their operations which they failed to commence within the prescribed time limit and despite grant of extensions for six months to one year to difference licensees.
The above mentioned non-operational licensees were issued show cause notices under Regulation 27 of the PEMRA (TV/Radio Broadcast Operations) Regulations, 2002 and their personal hearings were also conducted in accordance to provisions of regulatory framework. However, the status of all these licensees remains non operational till date.
The show cause notices, the respective replies filed by the licensees and the report of the hearings were placed before the Authority.
The sole reason placed before the Authority by the licensees for not staring the transmission of the licensed channels is force majeure on the basis of downturn of the economy combined with delay in grant of licenses. Force majeure is an act which is beyond the control of the licensee and furthermore economic downturn is a business risk which every licensee would otherwise take into consideration, hence not a cogent reason to claim force majeure.
It is also noteworthy that at least in the case of Messrs Independent Newspapers Corporation (Pvt.)
Ltd., had obtained four Licenses in 2008 out of which they launched transmission of three channels while failing to start transmission of 'Geo Englishonly. Hence, even otherwise the reason of delay in grant of licenses causing increase in cost and causing force failure to start transmission of Geo English in view of these facts. It appears that non-commencement of transmission of Geo English was purely a commercial decision on the part of the licensee and hence cannot be the basis of contravening the condition of the license.
It is pertinent that at the time of obtaining and grant of the license, the licensee did not raise any objections as to delay and otherwise had option to refuse the licences at the outset which they did not do.
The license condition under Clause 3.1 of the License is mandatory read with Regulation 9(8) of the PEMRA (TV/Radio Broadcast Operations) Regulations 2002 and the aforestated licensees even after being given an opportunity to cure this contravention by granting an extension of time have failed to do so. No cogent reason for such failure has been provided.
Failure to act in accordance with Clause 3.1 provides a consequential penalty under Clause 3.6 of the license read with Regulation 9(8) of the PEMRA (TV/Radio Broadcast Operations) Regulations 2002. The Authority having granted an opportunity to the Licensees to show cause under Regulation 27 and considering all facts and the applicable provisions of law, in exercise of its discretion under section 30(c) of the PEMRA Ordinance 2002 read with Regulation 27(2) of the PEMRA (TV/Radio Broadcast Operations) Regulations 2002, hereby directs cancellation of the licenses of Messrs Roze (Pvt.) Ltd., (Roze TV), Messrs Independent Newspapers Corporation (Pvt.)
Ltd., (Geo English), and Messrs Asset Plus (Pvt.) Ltd (Mirror TV Network) with immediate effect on account of contravention of Clause 3.1 of the License read with Regulation 9(8) of the PEMRA (TV/Radio Broadcast Operations) Regulations, 2002 and Clause 3.6 of the License.
Part 2 "Revocation of Satellite TV Channel on Account of Suspension of Operation Part 3 ...................
3. Therefore, Messers Independent Newspaper Corporation (Pvt.) Ltd. , is required to surrender the licence of the channel "Geo English" in original within Ten (10) days of the issuance of this letter."
11. The reasons advanced in the cancellation order/Notification were that the appellant failed to launch transmission within stipulated period of one year as per clause- 3.1 of the licence issued to the appellant and also in further extended period of six months despite issuance of show cause notices under Regulation 27 of the PEMRA (TV/Radio Broadcast Operations) Regulations, 2002 and personal hearing. Further the licence condition under Clause 3.1 of the licence was mandatory read with Regulation 9(8) of the PEMRA (TV/Radio Broadcast Operations) Regulations, 2002, which provide a consequential penalty under Clause (3.6) of the licence read with Regulation 9(8) of the PEMRA (TV/Radio Broadcast Operations) Regulations 2002. The licence was cancelled in exercise of discretion under section 30(c) of the PEMRA (TV/Radio Broadcast Operations) Regulations, 2002.
Clause 3.1 of the licence by virtue of which the licence was cancelled provides that:-- "The licensee shall commence its Licensed Service within 12 months of the issuance of the License and shall inform the Authority one-month in advance of the start of the license."
Regulation 9(8) of the PEMRA (TV/Radio Broadcast Operations) Regulations, 2002 says that: "The licence shall be deemed to have been withdrawn and cancelled, if the licensee fails to put into operation the broadcast station within a period of one year from the date of its issuance."
Clause 3.6 of the licence states that:-- "The license shall be deemed to have been withdrawn and cancelled, if the Licensee fails to put into operation the broadcast station within a period of one year from the date of its issuance.:
12. Unquestionably, the respondent has the power and authority to cancel the licence of licensee for the breach of conditions of licence as well as PEMRA Ordinance or Rules etc as the case may be.
These powers have been bestowed in it by virtue of section 30 of the PEMRA Ordinance, 2002, which lays down that:-- "30. Power to vary conditions, suspend or revoke the licence---(1). The Authority may revoke or suspend the licence of a broadcast media or distribution service by an order in writing on one or more of the following fines, if any;
(a) the licensee has failed to pay the licence fee, annual renewal fee or any other charges including fine, if any;
(b) the licensee has contravened any provision of this Ordinance or rules or regulations made thereunder: Provide that in the case of revocation of a licence of a broadcast media an opinion to this effect shall also be obtained from the Council of Complaints;
(c) the licensee has failed to comply with any condition of the licence; and
(d) where the licensee is a company, and its shareholders have transferred a majority of the shares in the issued or paid up capital of the company or if control of the company is otherwise transferred to persons not being the original shareholders of the company at the time of grant of licence, without written permission of the Authority.
(2) The Authority may vary any of the terms and conditions of the licence where it deems that such variation is in the public interest.
(3) Except for reason of necessity in the public interest a licence shall not be varied, suspended or revoked under subsection (1) or (2) unless the licensee has been given reasonable notice to show cause and a personal hearing.
In addition to above, the prerogative to cancel the licence has also been conferred upon the authority under Regulation No. 27 of PEMRA (TV/Radio Broadcast Operations) Regulations, 2002, it would be very much germane to repeat the same which runs herein below:- "Cancellation of licence.---(1) Where a licensee contravenes any provision of the Ordinance or the rules or the regulations made thereunder, or any condition of the licence, the Authority, on its own accord or on the recommendation of the Council of Complaints, established under section 26 of the Ordinance, may by written notice require to show cause within fifteen days, as to why his licence should not be cancelled.
2. If the Authority, on considering the explanation of the licensee, is of the opinion that the licensee has contravened any provision of the Ordinance or the rules or conditions of the licence, it may cancel the licence."
' The above extracts from the provisions of law make it elucidate in clear words that on one hand powers to annul the licence have been vested with the authority, but at the same time, a condition precedent is the issuance of show cause notice and personal hearing before cancelling the licence. It is the claim of the appellant that the impugned B order/notification is in clear violation of law as well as equitable principle of audi alterm palterm. In contrast, the respondent came up with assertion that the appellant was issued a show cause notice dated 14-1=2010 and consequently personal hearing was also called on 1-2-2010. To appreciate the issue the following dates are relevant:--
(i) Issuance of licence 25-6-2008
(ii) Issuance of show cause notice 14-1-2010
(iii) Personal hearing 1-2-2010
(iv) Cancellation of licence 25-7-2011 From the above dates, it is obvious that the licence was cancelled after more than one year and 5 months after the alleged personal hearing. No reason has been advanced for this long noticeable delay. It appears that the respondent kept the matter hanging position for this period with mala fide intention. After alleged personal hearing it was the duty of the respondent to revoke the licence forthwith or to issue fresh show cause notice before cancelling the licence. A show cause notice issued one year and 5 months ago in no way can be considered to be a legal and valid show cause notice.
13. Section 29(6) of the Ordinance also provides the imposing of penalty in case of contravention of licence or rules, according to which:-- "29(6). The Authority may, after the licensee has been, given reasonable opportunity to show cause, impose fine up to one million rupees on a licensee who contravenes any of the provisions of this Ordinance or the rules or regulations made thereunder."
The above provision of the Ordinance clearly provides that in case of breach of any provision of Ordinance, the authority may inflict fine. The contention of the learned counsel for the respondent was that the said provision relates to inspection. I am unable to see eye to eye with the learned counsel for the simple reason that this section itself provides that "any provisions of this Ordinance".
It shows that this provision is applicable for the entire Ordinance. Before cancelling the licence of the annP11 ant this nrovision has not been kept in view and a harsh order of cancellation of licence was passed.
14. As regards the issue of issuance of 5th licence, as agitated by the learned counsel for the respondent, in the order/Notification of cancellation of licence dated 29-7-2011 there is no mention that the same is being cancelled on this ground. The appellant has placed on record certified copy of Constitution Petition No.D-1743 of 2009, which was filed by group of appellant against the PEMRA seeking a direction to issue licence to Geo Super, in which PEMRA raised certain objections including that a person can be granted maximum of four Satellite TV licence, four FM Radio Licence and two landing right permissions and that the said petitioners had already been granted four satellite TV licence i.e. Geo News, Geo Entertainment, Geo English and AAG, therefore, no fresh licence could be granted. This constitution petition was disposed of on 18-5-2011 with the direction to PEMRA to decide the application of said petitioner for licence in accordance with law within a period of two months of the date of judgment. This order was challenged by the petitioner (Independent Music Group SMC (Pvt.) Ltd.,) before the Hon'ble Supreme Court of Pakistan in Civil Petition, which was converted into appeal and allowed on 6-6-2011. The operative part of the esteemed judgment is re-produced as under:- "Thus for the forgoing reasons, the petition is converted into appeal and allowed. The PEMRA is directed to issue immediately licence to the petitioners, in terms of their application, which they have submitted on 2-7-2007 and submit compliance report of this order to the Registrar of this Court within a period of three days, which shall be placed before us in Cambers for perusal.
Parties are left to bear their own costs."
From the above narration of facts, it visualizes that constitutional petition was decided on 18-5-2011 wherein it was added that at that time the appellant had licenses of four channels i.e. Geo News, Geo Entertainment, Geo English and AAG. The Civil Petition of Independent Music Group SMC (Pvt.)
Ltd was accepted by the Hon'ble Supreme Court of Pakistan on 6-6-2011 and a direction was issued to the PEMRA/respondent to issue immediately licence to it. Admittedly at that time the appellant had already four licenses, but even then Hon'ble Supreme Court of Pakistan directed to issue another 5th licence. The judgment rendered by the Hon'ble Supreme Court of Pakistan has attained the finality. Now at this juncture the objection raised on behalf of respondent regarding 5th licence holds no water, especially when no new licence is to be issued and only the regarding dispute of cancellation of the licence is to be looked into channel from 'English to Urdu" was declined. It is the contention of the appellant that in pursuance of order dated 23-8-2011 passed in C.P. No.D-2417 of 2011 by the Sindh High Court, Karachi the respondent invited the appellant for personal hearing at Islamabad and on 6-9-2011, the appellant's representative and its counsel appeared before the respondent. However, on 9-9-2011, through the impugned order dated 9-9-2011, the respondent turned down the appellant's request for change the name/language of channel from 'Englishto 'Urdu'. For the sake of convenience the impugned order/Notification is produced as under:- PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY ISLAMABAD No.PEMRA-1(23/Secy/2011 Islamabad, September 9, 2011 Subject: Decision of the Authority on the working paper regarding Application of Messrs Independent Newspapers Corporation (Pvt.) Ltd for Change in Language/Medium from English to Urdu and Name of the channel "Geo English"
In pursuance to the Order dated 23-8-2011 passed by the Hon'ble Sindh High Court Karachi in the Constitutional Petition No.D-2417 of 2011 a personal hearing of Messrs Independent Newspapers Corporation (Pvt.) Ltd., (INCL) (Geo English) was, held on 6th September, 2011 for disposal of the application dated 22nd December, 2009 for changing the name and medium of language of the channel "Geo English" from English to Urdu.'
The Personal Hearing Committee having heard the representatives of the Company on the application for change of name and consequently change of medium of language of the channel has submitted the minutes of the hearing and its recommendations.
Having perused the record as well as the minutes of the personal hearing the Authority's decision is as follows:
(1) The brief facts of the matter are that Messrs Independent Newspapers Corporation (Pvt.) Ltd., (the Company) applied on 2-7-2007 for the grant of a satellite television channel licence under the name of 'Geo English and declared the requisite medium of language to be 'English".
(2) Pursuant to this application of the Company, the Authority granted a satellite TV license on 25th June, 2008 for Geo English where the medium of language (as requested by the existing at that time and categories of channels was licensed as English.
(3) Under the terms and conditions of the Company's licence it was required to start its operations by 24th June, 2009. However, the Company failed to do so. It requested for an extension submitting that it had already installed the relevant infrastructure and needed some time to start the operations. The Authority as a special case granted a six months extension to the Company.
(4) However, the Company failed to start the operations of Geo English even upon conclusion of the 6 months extension which effectively concluded on 3rd January, 2010. The company was issued a Show Cause Notice on account of such violation of the terms of the license and the matter was finally heard and decided vide the Authority's decision dated 25th July, 2011 whereby the Company's license was revoked.
(5) Meanwhile the Company just prior to the completion of the extension period granted to it by the Authority on 22nd December, 2009 filed an application seeking approval for a change of name of the channel and also for a change of the medium of language of the channel.
(6) The Authority, in view of the default of the Company of the core term of the license in terms of failure to start the operations and the said matter having been taken up by the Authority, while, considering the application dated 22nd December, 2009 was of the opinion that the same could only be taken up for consideration after the issue relating to default of the license terms by the Company had been decided. For the said reason the application was not considered at the time and thereafter, upon the decision of the Authority dated 25th July, 2011 to revoke the license of the Company it was the opinion of the Authority that the same had become infructuous.
(7) However, upon a hearing of the Constitutional Petition No.D-2417 of 2011 and being informed of the decision of the Authority dated 25th of July, 2011 the Hon'ble Sindh High Court while disposing off the said petition directed the Authority, upon the pointing out of the Company that the instant Application for name change had not been decided by a speaking order, that the instant application be heard and decided.
(8) The Company's principle grounds in support of its Application are; `(a) Less than 10% of the total population of Pakistan can No facts or evidence was provided to substantiate the same however, even otherwise, this fact was admittedly in the knowledge of the company at the time it applied for the license and therefore, the same could not be a valid reason for change of name or medium of language;
(b) A survey of the market suggests that an English news Channel is not viable in Pakistan; The Company was neither able to produce any such survey and further admitted that the survey they referred to was prior in time to the grant of the license to the Company. Hence again the Company is estopped by its own conduct in having applied for the license for an English language channel when admittedly in the knowledge of such market surveys. It was the choice of the Company to apply for a license of its requirements and be Authority granted the license based on the Company's request for language.
(c) Existing English News Channel e.g. Dawn News, Express English cannot compete in the market and as such are nonviable; The Company produced no evidence or facts to support this contention. Furthermore, this contention has no nexus with the current Application.
(d) Other channels have been provided similar name change and language change approval; The contention of the Company is misconceived and not based on facts. No such relaxation had been granted to these channels by the Authority. CNBC and Business Plus were granted licenses with medium of language being Urdu; whereas Dawn Group was granted licenses one for Urdu language and one was English Language. Therefore, the claim of the Company that it is being discriminated is totally misconceived.
(e) Exemption may be granted from relevant provisions of the PEMRA laws under Section 32 of the PEMRA Ordinance 2002 for change in language and name of Geo English.
As far as power of the Authority to grant exemption under section 32 of the PEMRA Ordinance, 2002 is considered, the same is to be exercised in conformity with the principles of equality and equity in the large interest. Furthermore, in the present case the Company handing itself applied for a English Urdu language channels there is neither any justification for the Authority to exercise its discretion under section 32 of the PEMRA Ordinance, 2002 and even otherwise allowing the same would set a precedent on non-existent facts which would essentially deprive the public of any English language channels whereas the PEMRA has attempted/ to ensure that a variety of languages and category of channels are available to the public.
(9) Under section 19(4) of the PEMRA Ordinance 2002 as amended by PEMRA Amendment Act 2007, the Authority is required to, determine the number of licences to be issued in each category or sub-category. Messrs Independent Newspapers Corporation (Pvt.) Ltd., was issued A Satellite TV boradcost station license "Geo English" in English language for "News and Current Affairscategory keeping in view the financial feasibility submitted by the company itself and its request for channel with the said name and language. Pertinently, a number of Urdu news Channel licenses have also been issued including "Geo News" to Messrs Independent Media Corporation (Pvt.) Ltd., a sister company of Messrs Independent Newspapers Corporation. Thus, there was a need to have news channels in English Language. Based on this the license was granted to the Company. Allowing a change in- the fundamental nature of the general i.e. The language would be effectively altering the reasons for the grant of the license in the first place as well as the Authority's obligation under section 19(4) of the PEMRA Ordinance, 2002.
(10) In addition to the above, the Company committed a grave violation of the core of the license granted to it in failing to start the operations of the channel within the time frame granted including the extension granted thereof. The instant application having been a few days prior to expiry of extension fact appears to have been filed with sole motive of the obtaining a delay in the starting its operation thus escaping from its liability under the license terms and conditions rather than being based on any merit of facts.
(11) The Company is as estopped some seeking a name and language change now having applied for the same initially for grant of a license while admittedly no changed at circumstances exist since the applying of the license till the filing of the instant application.
Therefore, based on the above reasons the application of the Company for change of name and change of medium of language in respect of the channel "Geo English" is hereby declined. Previous decision of the Authority dated 25th July 2011 in this of consideration of the Company's license for the channel.
The impugned order/Notification reveals that the request of the appellant to change the name/language of channel was refused on different grounds. It was opined that the appellant failed to produce evidence in support of his different contentions. It was further held that no such relaxation was extended to any other channel. However, after issuance of impugned notification, now the picture has totally been changed as PEMRA in its 73rd meeting has allowed "Express English to Express E plus and language from English to Urdu." The relevant segment of Notification is re-produced herein below:- Item No.15: Change of Channel Name and Language of Satellite TV Channel "Express English"
The Authority was appraised about the meeting of PEMRA management with the Licensee i.e. Messrs Television. Media Network (Pvt.) Ltd., regarding the change in language, name and logo etc. Of the channel "Express English" as directed by the Authority in its 72nd meeting. The Authority was informed that the company has already been issued two (2) News and current Affairs channel licenees and the change of category of the channel 'Express Musicwith category "Entertainment" to Express Plus" with category "News and Current Affairs" will give the company a monopolistic position.
It was further appraised that the company agreed to withdraw their earlier request and further requested for change in change name from "Express English" to "Express Plus" and language from English to Urdu. Moreover, the company requested to withdraw the earlier decision of the Authority regarding change of channel "Express Music with category "Entertainment" to "Express Plus" with category "News and Current Affairs."
After detailed deliberations, the Authority acceded to the request of the Company, as per para four (4) of the working paper subject to payment of all requisite fees".
Since the respondent itself has allowed the above change to other channel, therefore, the respondent cannot be allowed to take blow hot and cold in the same breath. The only argument advamed in this regard was that Express English had started its function and thereafter due to F some unavoidable circumstances it applied for the said change. I have given due attention to this feature and come to the conclusion that which promoted the Express English to apply for change the name and language are/were also available in the case of the appellant and there was no justification to produce any evidence regarding prevailing facts and circumstances. It has never been mentioned in 72nd meeting held on 2nd December 2011 whereby change was allowed that any evidence was produced by Express English in support request to change the name and language, rather it is mentioned that after detailed deliberations the Authority acceded to the request of the company. The conduct of the respondent is a sheer discrimination which is against the Constitution.
16. It might not be out of context to mention that the preamble of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 demonstrates that the major objective of the Ordinance was to regulate electronic media in Pakistan. In addition to above the following goals were also mentioned therein:--
(i) improve the standards of information, Education and entertainment;
(ii) enlarge the choice available to the people of Pakistan in the media for news, current affairs, religious knowledge, art, culture, science, technology, economic development, social sector concerns, music, sports, drama and other subjects, of public and national interest;
(iii) facilitate the devolution of responsibility and power to the grassroots by improving the access of the people to mass Media at the local and community level; and
(iv) ensure accountability, transparency and good governance by optimizing the free flow of information.
It is to be remembered that the above preamble cover's all the organs of the society. The situation which crystallizes is that it is the fundamental responsibility of the respondent/PEMRA to achieve the goal of preamble. It is disquieting to notice that for issuance of licence the respondent is receiving the huge amounts as well annual renewal fee, therefore, it was duty bound to facilitate all its licensees and it should avoid to create undue obstacles.
17. In light of scenario as portraited hereinabove, both these appeals are accepted and both the impugned orders/Notifications are set aside to the extent of appellant only. Consequently, respondent is directed to do the needful within one month positively for change of medium of language from English to Urdu and change of name of the appellant's licensed channel from Geo English to Geo Tez. However, the appellant would be bound to pay any fee required under the law for said purpose.