' SYED MUHAMMAD FAROOQ SHAH, J.--- Petitioners, through the instant Constitutional Petition, have sought indulgence of this Court to declare that the PEMRA (TV/Radio Broadcast Operations)
Regulations 2002 and in particular Regulation 9(5) thereof, is ultra vires, unlawful, unconstitutional and void ab initio, therefore, respondents cannot demand or collect any amount by way of Surcharge on account of late payment of fee under the PEMRA Ordinance. The petitioners have also prayed for refund of surcharge fee, illegally and coercively collected from them.
2. Precisely, relevant facts as narrated in the captioned petition are that petitioner No.1 is a registered association of TV and Cable Broadcasters and the petitioners Nos.2 to 8 are its members who are affected by show-cause notice, issued to each of them by respondent No.1, in terms of which, each of the said petitioners have been asked to pay "surcharge" in respect of licence issued to them by the respondent No.1 (PEMRA). It is averred that the said surcharge has been levied under the Regulation 9(5) of PEMRA Regulations, 2002 which is ultra vires, since the PEMRA did not have any power or authority under the PEMRA Ordinance, 2002 to make regulations.
The legal plea as urged by the petitioners is that undoubtedly PEMRA can only make rules with the approval of the Federal Government and further powers under the rules to frame the said regulations but there was no such power either in the Federal Government or PEMRA under the Ordinance, therefore, the Regulations so purportedly made and the imposition of surcharge is ultra vires and illegal as it is axiomatic law that a delegated power cannot be further sub-delegated. It is further stated that even in Act II of 2007 i.e. Amendment to the PEMRA Ordinance, no power had been conferred on PEMRA to make Regulations and there is only mention of Regulations in the amended Ordinance, therefore, the Regulations with regard to levy of surcharge in terms thereof is not tenable in law. Petitioners have prayed to declare that the PEMRA Regulations, 2002 and in particular Regulation 9(5) thereof, is ultra vires the PEMRA Ordinance, 2002 and unlawful, unconstitutional and void ab initio, therefore, Respondents be restrained to demand surcharge on account of late payment of fee under the PEMRA Ordinance.
3. It may be advantageous to reproduce hereinbelow Regulation 9(5) of Broadcasting Regulations relating to licence conditions:--- "Late payment of the licence or renewal fee shall incur a surcharge of 5% of the fee per month upto a maximum of 15% failing which the licence would be deemed to have been cancelled".
Section 24(4) of the PEMRA Ordinance reads that a licence shall be valid for a period of five, ten or fifteen years subject to payment of the annual fee prescribed from time to time. Section 19 of the Ordinance deals with issuance of licence to broadcast or operate TV network and provides that the Authority shall have exclusive right to issue licences for the establishment and operation of all broadcasting media and distribution service provider. This exclusive right shall be used by the Authority in conformity with the principles of fairness and equity applied to all potential applicants for licences whose eligibility shall be based on prescribed criteria notified in advance and that this shall be done through an open, transparent bidding process. Article 19(4) of the said Ordinance clarify that the Authority shall have the power to determine the number of licences to be issued in each category or sub-category and charge fees at such rates as the Authority may fix from time to time for grant of a licence and its annual renewal. Article 39 of the amended Ordinance, 2007 (Act No.II of 2007) bestow powers upon PEMRA to make rules with the approval of the Government, sub- section 2(b) of amended Ordinance reads that to prescribe the terms and conditions of the licence including fee to be charged in connection with the issuance of the licence and related matters.
Rule 8 of PEMRA Rules 2009 (Act) deals with licence fee including security deposited which shall be refundable after the expiry of one year but these rules does not subject of Regulations. It is pertinent to mention here that bare reading of above provisions of PEMRA Ordinance and rules made thereunder only authorizes the grant of a licence subject to payment of fee that was levied and there is no dispute about it, however, the Ordinance does not speak about 'surcharge', which term is contrary to the Ordinance.
4. We have given our anxious considerations to the contentions of the learned Counsel of the parties and perused the record.
5. The expression 'surcharge' as defined and explained in different dictionaries including Wikipedia' is as under:- "A surcharge may mean: An extra fee added onto another fee or charge Fuel surcharge, sky freight charges which represents additions due to jet fuel prices. Bunker adjustment factor, sea freight charges which represents additions due to oil prices. Surcharge (payment systems) charged when paying with cheque, creait, charge or debit care. An overprint that affects the value of a postage stamp. A surcharge (sanction) against a public servant who has abused public funds. Any loading from above the soil line upon earth being supported by a retaining wall. Surtax, extra tax levied upon tax.
(1) An additional sum added to the usual amount or cost.
(2) An overcharge, especially when unlawful.
(3) An additional or excessive burden; an overload.
(4)(a) A new value or denomination overprinted on a postage or revenue stamp.
(b) The stamp to which a new value has been applied. (5) Law the act of surcharging.
(1) To charge (a person) an additional sum.
(2) To overcharge (a person).
(3) To place an excessive burden on; overload.
(4) To fill beyond usual capacity; overfill.
(5) To print a surcharge on (a postage or revenue stamp).
(6) Law to show an omission of a credit in (an account).
(7) To requite (a person) to reimburse funds spend without organization.
Surcharge
(1) (Business/Commerce) a charge in addition to the usual payment, tax etc.
(2) (Business/Commerce) an excessive sum charged, esp when unlawful.
(3) An extra and usually excessive burden or supply.
(4) (Law) Law the act or an instance of surcharging.
(5) (Non-sporting Hobbies Philately) an overprint that alters the fact value of a postage stamp.
6. Regulation 9(5) empowers the Authority to levy 'Surcharge' which shall be imposed either due to late payment of the licence or renewal licence fee at the rate of 5% PM, upto a maximum of 15%.
There may be some justification of imposition of surcharge in case of late payment of the licence fee but imposition or levy of surcharge at the time of renewal of licence is beyond imagination and is not understandable.
7. Learned counsel for the petitioner submitted that it is well settled that the taxing provision is to be construed strictly against the State and in favour of the citizen and-that tax can only be levied by an Act of legislature and with the rules, subordinate legislation and or made by the executive authorities to give effect to the parent statute. It is contended by Mr. Salahuddin that the levy and recovery of the amount under the heading 'surcharge' seems to be utterly without authority inasmuch as parent statute viz. PEMRA Ordinance does not confer the authority to regulate such surcharge. In support of his worthy contention, learned counsel placed his reliance on the case of PROVINCE OF SINDH v. Messrs AZAD WINE SHOP, reported as PLD 2006 SC 528.
' For the sake of convenience, paragraph 6 of the citation is reproduced herein-below:--- "6. The reading of the above provisions clearly establishes that the Order only authorizes the grant of licence on payment of fee. This is being levied and there is no dispute about it. It is also clear that the Order, in terms does not even mention the vend fee, assessment fee and surcharge on assessment. These terms are used in the Rules. It is well-settled principle that the taxing provision is to be construed strictly against the State and in favour of the citizen. It is also well-settled principle that the tax can only be levied by, an Act of legislature. It is equally settled that rules are subordinate legislation and are made by the Executive authorities to give effect to the parent statute. The Executive wing of the State has itself no authority to levy and recover the tax/ fee. We asked the learned Additional Advocate General as to what service was being provided by the petitioner-Government in return for the levy and recovery of vend fee, assessment fee; and surcharge etc. He could not point out any service being rendered in return. Clearly, although describes as fee, these measures are tax and cannot be recovered by the, Executive by framing rules to that effect."
8. Conversely, learned counsel for the respondent No.1 though admitted that the parent statute did not authorize the levy of surcharge but submitted that the respondent No.1 was competent to levy and recover the surcharge under Regulation 9(5). It is further contended that alternate remedy was available to the petitioner by way of filing an appeal as provided under PEMRA Appeal and Review Regulation 2008 and under section 13 (A) of the PEMRA Ordinance, 2002. Therefore, the instant petition is not tenable in law.
9. Insofar as the ground of non-maintainability of the captioned petition is concerned, it is settled law that if a petition based on important question of law of general application, then it can be raised directly before the High Court, therefore, the petition is maintainable. In the instant case, the petitioners were required to pay the annual licence fee along with 'surcharge' pertaining to their respective TV channels, the demand for payment of surcharge appears to be ultra vises qua the PEMRA Ordinance 2002 as the PEMRA has no constitutional authority to levy tax under the Regulations, therefore, the show-cause notice appears to be unjustified, not sustainable in law is hereby cancelled.
10. The petition is accordingly allowed in the above terms with no order as to costs.