Muhammad Ali Mazhar , J: This petition has been brought to entre at a declaration that the show cause notice dated 18.10.2017 and the decision of Pakistan Electronic Media Regulatory Authority dated 08.12.2017 both are unjustified and without jurisdiction.
2. The short-lived facts of the present case are that the petitioner is engaged in the business of Cable T.V. Network under the licence issued by Pakistan Electronic Media Regulatory Authority (hereinafter to be referred to as PEMRA). It is alleged that on 11.10.2017 some unknown persons surged in the office of the petitioner without showing identity , however , after conducting inspection, they disclosed that they are PEMRA officials. On 18.10.2017 a show cause notice was issued to the petitioner by the PEMRA which reads as under: "No.1(01)/PEMRA/RGM-KHI/MISC/1746 October 18th, 2017 Chief Executive Officer M/s W orld Call Cable (Private.) Limited, KARACHI.
Subject: SHOW CAUSE NOTICE On October 11, 2017 around 1130 hours, the officers and staff of PEMRA visited the head-end of M/s World Call Cable (Private) Limited Karachi, to discharge their official duties under Section 29 of the PEMRA Ordinance 2002.
2.AND WHEREAS, two persons who introduced themselves as Colonel Sohail & Mr. Shafiq (rank unknown) of Pakistan Army along with Mr. Islamuddin (Manager , Technical of M/s World Call) held the officers and staff of PEMRA hostage for one and a half hour . All three persons also creat ed hindrance in official duties of PEMRA officers and staff. They misbehaved, used abusive language and threatened PEMRA 's team of serious consequences.
3.AND WHEREAS, aforementioned threatening acts are in violation of Section 29(2) of the PEMRA Ordinance, 2002 which shall attract legal action under Section 29, 30 and 33 of the PEMRA Ordinance, 2002.
4.AND WHEREAS, the said act of obstructing public servants in discharge of official duties shall attract legal proceedings under Section 186 and 353 of Pakistan Penal Code (PPC), 1860.
5.THEREFORE, M/s World Call Cable (Private) Limited Karachi is hereby directed to show cause immediately but not later than three (3) days of the issuance of this notice, as to why appropriate legal action may not be taken against you which may inter alia include imposition of fine, suspension or revocation of your license and registration of an FIR under section 186 and 353 of PPC read with section 33 of the PEMRA Ordinance. You are also required to appear for personal hearing on Monday , October , 23, 2017 @ 1 1:15 A:M. In case of non-compliance, the matter shall be decided ex parte in accordance with law .
Sd/- Ashfaq Ahmed Jumani Regional General Manager PEMRA Karachi"
3. The petitioner submitted the response on 24.10.2017 thereafter the matter was forwarded by PEMRA to the Council of Complaints (COC) where the petitioner 's representative appeared on 14.11.2017 to defend the show cause and the allegations made therein, however , on 08.12.2017 the alleged decision was communicated to the petitioner by the RGM/Secretary of the COC Sindh wherein the recommendations of the COC are mentioned in paragraph 4 which are reproduced as under: "4.The Council, after detailed deliberation, recommended the following in exercise of its powers conferred under Section 26(5) of PEMRA Ordinance 2002, as amended by PEMRA (Amendment Act 2007) read with Rule 8(4) of the PEMRA (Council of Complaints) Rules 2010, which have duly been approved by the Competent Authority: COC took a serious notice of misbehavior by Mr. Sohail Ahmed (Director Admin & Security) and Mr. Shafiq (Manager Security) Employees of World Call with the representatives of PEMRA who had gone World Call office for routine inspection. The employee of World Call used abusive language (bastard...etc ) for the PEMRA representatives who had given proper identification that they are on an official visit.
A fine of Rs.1,000,000/- (One Million) is imposed on M/s World Call Cable (Pvt) Ltd. Karachi. The COC also advised the World Call management to take a serious action against the persons accused of serious misbehavior with PEMRA team. In case of non-compliance of above, the case shall be referred to the Authority for action against the licensee under the Section 29, 30 and 33 of PEMRA Ordinance 2002 as amended by PEMRA (Amendment) Act 2007 and other enabling provisions of PEMRA Laws.
5. M/s. World Call Cable (Pvt.) Ltd, Karachi is therefore directed to ensure compliance with the above decision in letter and spirit, under intimation to this office.
Sd/- Ashfaq Ahmed Jumani RGM/Secretary to the COC Sindh"
4. The learned counsel for the petitioner argued that the impugned show cause notice was issued in contravention of the provisions of the PEMRA Ordinance. The Council of Complaint had no jurisdiction to take cognizance as under Section 26 (2) of the PEMRA Ordinance the Council can only receive the complaints from the general public against any aspects of programmes broadcast or distributed by a station and under Section 26 (5) of the PEMRA Ordinance, the Council may only make recommendations with regard to violation of the programming code. The authority has not issued any appropriate order based on the Council 's recommendations. There is no jurisdiction of the Council to impose the penalty and in fact this is the power of PEMRA which may impose any fine under Section 29(6) of the PEMRA Ordinance rather than the Council. There is no decision of PEMRA which could be appealed hence constitution petition has been filed.
5. The learned counsel for the respondents though not filed any comments but he primarily raised the issue that under the PEMRA Ordinance, 2002, a right of appeal is provided under Section 30-A to an aggrieved person against any decision or order of the autho rity within 30 days of the receipt of such decision or order . It was further argued that since the officials of the petitioner created hindrance in the official duties of PEMRA officers and staff, also misbehaved and used abusive language with the threats of dire consequences, therefore, PEMRA hasrd rightly issued the show cause notice and thereafter referred the matter to the Council of Complaints. The recommendations of the Council were received to the Authority on which basis the decision was passed on 08.12.2017 against which the petitioner could have filed the appeal rather than constitution petition.
6. Heard the arguments. The preamble of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 explicates the rational of this Ordinance which promulgated to improve the standards of information, 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 with auxiliary prudence and forethought to facilitate the devolution of responsibility and power to the grass-root by improving the access of the people to mass media at local and community level with further qualification to ensure accountability, transparency and good governance by optimizing a free flow of information. The bone of contention in the matter is the show cause notice dated 18.10.2017 and the alleged decision dated 08.12.2017 communicated by the RGM/Secretary to the COC Sindh whereby a fine of Rupees One Million was imposed on the petitioner and the Council of Complaints also advised the petitioner to take a serious action against the persons accused of behaviour with PEMRA team and in case of noncompliance the case shall be referred to the Authority for the action against the petitioner under Sections, 29, 30 and 33 of PEMRA Ordinance, 2002. The tenor and mood of this communication symbolises Sub-section (5) of Section 26 of PEMRA Ordinance, 2002 under which the Council of Complaints may recommend to the Authority appropriate action of censure, fine against a broadcast or CTV station or licensee for violation of the codes of programme content and advertisements as approved by the Authority as may be prescribed. It also denotes Rule 8 (4) of Pakistan Electronic Media Regulatory Authority (Councils of Complaints)
Rules, 2010 which provides that the Council shall also take cognizance of such matters as referred to it by the Chairman or the Authority and render its opinion thereon. So, in the first stance the communication referred to above shown some recommendations, whereas if Rule 8 (4) is read in juxtaposition, then the Council of Complaints may render its opinion. In the alleged decision dated 08.12.2017, paragra ph 4 simply reproduces the recommendations or the alleged opinion of the Council of Complaints and in paragraph 3, reference of 54th meeting held on 14.11.2017 of the Council of Complaints is referred to but for all practical purposes, no independent decision has been taken by the Authority (PEMRA) on the recommendations and opinion of Council of Complaints but the entire alleged decision is based on Council of Complaints' recommendations and opinion. For the ease of reference, Sections 26 and 29 of the PEMRA Ordinance are reproduced as under: "26. Council of Complaints.- (1) The Federal Government shall, by notification in the Official Gazette, establish Councils of Complaints at Islamabad, the Provincial capitals and also at such other places as the Federal Government may determine.
(2) Each Council shall receive and review complaints made by persons or organizations from the general public against any aspects of programmes broadcast or distributed by a station established through a licence issued by the Authority and render opinions on such complaints.
(3) Each Council shall consist of a Chairperson and five members being citizens of eminence from the general public at least two of whom shall be women.
(3-A) The Councils shall have the powers to summon a licensee against whom a complaint has been made and call for his explanation regarding any matter relating to its operation.
(4) The Authority shall formulate rules for the functions and operation of the Councils within two hundred days of the establishment of the Authority.
(5) The Councils may recommend to the Authority appropriate action of censure, fine against a broadcast or CTV station or licensee for violation of the codes of programme content and advertisements as approved by the Authority as may be prescribed."
"29. Power to authorize inspection (1) The Authority may authorize any of its officers or its nominees to enter the premises of a broadcast media or distribution service operator for purposes of inspection.
(2) A broadcast media station or distribution service premises shall, at all reasonable times, be open to inspection by an authorized officer under sub-section (1) and the licensee shall provide such officer with every assistance and facility in performing his duties.
(3) The authorized officer shall, within forty-eight hours of the inspection, submit his inspection report to the Authority .
(4) The Authority may authorize any of its officers to undertake investigation, in the manner it may prescribe, in any matter with regard to its functions and to seek any specific information, from any person, which the Authority may deem useful in order to enable it to determine and dispose of such matter .
(5) The Authority or as the case may be the Chairman after issuing a show cause notice to broadcast media or distribution service may seize its broadcast or distribution service equipment, or seal the premises, which is being used in contravention of the provisions of this Ordinance or the rules made thereunder or any other law: Provided that the equipment shall be returned to the holder of a valid licence after imposing on him such penalty as the Authority may determine.
(6) The Authority may, after the licensee has been given reasonable opport unity to show cause, impose fine up to one million rupees on a licensee who contravenes any of the provi sions of this Ordinance or the rules or regulations made thereunder ."
Since Rules 3, 8 and 10 of Pakistan Electronic Media Regulatory Authority (Councils of Complaints) Rules, 2010 are also relevant the same are reproduced as under: "3. Establishment of the Councils of Complaints:- (1) There shall be established Councils of Complaints at Islamabad, the Provincial Capitals and at such places as the Federal Government may determine, for carrying out the functions under the Ordinance.
(2) The Councils shall work independently under facilitation by the Authority and their functions shall be coordinated by the Secretary to the Authority .
(3) The Councils shall take action on the complaints received against broadcast media or distribution service operators, as provided in the Ordinance and these rules.
8. Filing of complaint and functions of the Councils:- (1) any person aggrieved by any aspect of a program or advertisement may lodge a complai nt before the Council or the authorized officer , in whose jurisdiction that programme of advertisement is viewed.
Provided that where a complaint is received by an authorized officer , the authorized officer shall place the same before the Council for consideration and further proceedings.
(2) A council or the authorized officer may issue summons to the operator against whom complaint has been lodged and to such other persons as may be deemed necessary for disposal of the complaint, and record their statements.
(3) Where summons are served to the operator or a person under sub-rule (2), and such operator or person fails to appear or provide his explanation on the date fixed in the summons the Council may proceed with the matter on the basis of the record available and make appropriate recommendation to the Authority .
(4) A Council shall also take cognizance of such matters as referred to it by the Chairman or the Authority and render its opinion thereon.
(5) A Council may recommend to the Authority appropriate action of censure, fine upto the limit prescribed in section 29 of the Ordinance, seizure, suspension or revocation of license against a broadcast media or distribution service operator or licensee for violation of the Ordinance, rules regulation, code of conduct for programmes and advertisements or terms and conditions of licence.
(6) A Council shall keep the Authority informed on the feedback and public response to the contents quality and impact of the programmes and advertisements broadcast or distributed.
10. Procedure upon recommendation by a Council:- The Authority shall take into consideration the recommendations made by a Council in each matter and may approve the recommendations or disagree with the recommendations, while recording the reasons in writing for the same, and pass such order as deemed appropriate, or refer the matter back to the Council for re-consideration if so considered necessary in the opinion of the Authority ."
7. The status and role of Council of Complaints is stipulated under Section 26 of the PEMRA Ordinance, 2002 which has been established by the Federal Government at Islamabad and other Provincial capitals. The Council has power to receive and review complaints from general public against any aspects of programmes broadcast or distributed by a station established through a licence issued by the Authority and render opinions on such complaints. (emphasis applied) Under Sub-section (5), the Councils may recommend to the Authority appropriate action of censure, fine against a broadcast or CTV station or licensee for violation of the codes of programme content and advertisements as approved by the Authority as may be prescribed. Various terms and conditions of licence are mentioned under Section 20 of PEMRA Ordinance, 2002 from clauses (a) to (i) which are to be complied with by each licensee of PEMRA including the Code of programmes and advertisements. A separate code i.e. Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 has also been notified for the enforcement and guidance of the licensees to comply with while broadcasting any programming content or advertisement. Section 29 of the PEMRA Ordinance, 2002 confers the powers of the Authority (PEMRA) to authorize any of its officers or its nomin ees to enter the premises of a broadca st media or distribution service operator for the purposes of inspection. Under Sub-section (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 the Ordinance or the rules or regulations made thereunder .
8. In essence, PEMRA officials were perturbed for the reason that on 11.10.2017, the officers of PEMRA visited the head-end of the petitioner to discharge their official duties under Section 29 of the PEMRA Ordinance, 2002 when some employees of the petitioner misbehaved and also threatened PEMRA 's officers of serious consequences which were considered violation of Section 29 of the PEMRA Ordinance, 2002, therefore, a show cause notice was issued by the Regional General Manager , PEMRA, Karachi to the Chief Executive Officer of the petitioner firm but further proceedings were transferred to the Council of Complaints. Under Sub-rule (4) of Rule 8 of PEMRA (Councils of Complaints) Rules, 2010 the Council may take cognizance of such matters as referred to it by the Chairman or the Authority and render its opinion thereon. The actual power and jurisdiction of Council of Complaints provided under the PEMRA Ordinance, 2002 and Sub-Rule (4) of Rule 8 of PEMRA (Councils of Complaints) Rules, 2010 have to be considered in juxtaposition to read it down. If stanch spirit and ambiance of jurisdiction is to be conscious of, the single-mindedness and astuteness of establis hing Councils of Complaints and their jurisdiction is essentially streaming from Section 26 of the PEMRA Ordinance, 2002 under which COC may receive and review complaints from gene ral public against any aspects of programmes broadcast or distributed by a station established through a licence issued by the Authority and render opinion on such complaints and for exercising such power , the Council has powers to summon a licensee against whom a complaint has been made and call for his explanation regarding any matter relating to its operation.
9. The eventual purposefulness of the Council is to recommend appropriate action if found for violation of the codes of programme content and advertisements as approved by the Authority but an additional exercise of jurisdiction by the Council of Complaints has been added under Sub-rule (4) of Rule 8 of the PEMRA (Councils of Complaints) Rules, 2010 that the Council may take cognizance of such matters as referred to it by the Chairman or the Authority and render its opinion thereon. If these powers are regarded as powers of the Authority to refer any matter for opinion, then in our self-effacing understanding and interpretation, this cannot travel or regarded beyond the power and jurisdiction of Council of Complaints or the Authority under Section 26 of the PEMRA Ordinance, 2002. The Authority may only refer to COC any such matter which primarily relates to the aspects of programmes broadcast or distributed by a licensee but it does not mean that any matter may be referred to for which a separate provision has already been add up and reckoned under the PEMRA Ordinance, 2002 to deal with independently by the Authority by its own. The show cause notice was issued to the petitioner on the alleged violation of Section 29 of PEMRA Ordinance, 2002, to deal this show cause till its decisive fate, more than enough powers are available to the Authority itself to impose fine and in the show cause notice also the RGM of PEMRA called upon the petitioner that the alleged threatening acts mentioned in the show cause notice are in violation of Section 29 (2) of the PEMRA Ordinance, 2002 which attracts legal action under Sections 29, 30 and 33 of the PEMRA Ordinance, 2002. So far as Section 29 is concerned, that has already been discussed by us but Section 30 relates to the power of PEMRA to vary conditions, suspend or revoke the licence, whereas Section 33 germane to offences and penalties which made emphasis that any broadcast media or distribution service operator or person who violates or abets the violation of any of the provisions of the Ordinance shall be guilty of an of fence punishable with a fine which may extend to ten million rupees.
10. What deciphers to us in this case is that instead of exercising the jurisdiction by the Authority under Section 29 of the PEMRA Ordinance, 2002, the further proceedings arising from the show cause notice were referred to the Council of Complaints for their recommendations and rendering opinion by them and vide communication dated 08.12.2017, which is alleged to be a decision of PEMRA, the petitioner was communicated the opinion of Council of Complaints that petitioner is clearly in violation of Section 29 of the PEMRA Ordinance, 2002 and the recommendation of Council of Complaints has been reproduced in paragraph 4 but no independent decision is attached nor produced by the counsel for the PEMRA, whereas under Rule 10 of Pakistan Electronic Media Regulatory Authority (Councils of Complaints) Rules, 2010 the procedure has been laid down which makes mandatory that the Authority (PEMRA) shall take into consideration the recommendations made by the Council in each matter and may approve the recommendations or disagree with the recommendations while recording the reasons in writing for the same and pass such order as deemed appropriate or refer the matter back to the Council for reconsideration if so considered necessary in the opinion of the Authority. (emphasis applied) It is quite transparent from the alleged decision that no independent application of mind was applied by the Authority on the recommendations or the opinion of the Council of Complaints but in a slipshod manner, the recommendations were approved without recording any reasons in writing and passed such order . Besides above, we are also of the view that the matter in issue was beyond the jurisdiction of the Council of Complaints as nothing pertained to the aspect of any programme or advertisement vis--vis code of conduct prescribed by the PEMRA for the programming content and advertisement, therefore, according to the letters of law, the issue of show cause notice on violation of Section 29 of PEMRA Ordinance, 2002, if any, was to be considered and tried by PEMRA as provided under Section 29 without referring this matter to the Council of Complaints.
11. In the case of Khurram & others versus Federation of Pakistan & others. (PLD 2016 Sindh 557) authored by one of us Muhammad Ali Mazhar, J, it was held that the Rule making authority cannot clothe itself with powers which statute itself does not give. Rule should always be consistent with the Act and shall not militate or render the provisions of the Act ineffective. The rule to the extent of inconsistency with the parent statute shall be void and inoperative. Rule cannot go beyond the scope of the Act. Again in the judgment authored by one of us (Muhammad Ali Mazhar, J) 2014 CLC 335 (M.Q.M. & others v. Province of Sindh & others), it was held that doctrine of severability permits court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder, but if the valid portion was so closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder, the court would declare the entire act void. According to C.Carr, Delegated Legislation: Three Lectures (1921) p.2. [Ref: Judicial Review of Public Actions by Justice (R) Fazal Karim, Chapter.3, page 1281, Vo.2.] "Power to make rules, regulations etc. is a delegated legislative power . Subordinate legislation, if validly made, is as much law as a statute; it binds the public, it binds the govern ment and it binds the courts.
Thus, in US v. Nixon, the US Supreme Court said: "So long as this regulation is extant, it has the force of law So long as this regulation remains in force, the executive branch is bound by it..." As was said in Works v. DPP. "There is, of course, no doubt that when a statute enables an authority to make regulations, a regulation which is validly made under the Act, i.e. which is intra vires of the regulations-making authority , should be regarded as thoug h it was itself an enactment." From the proposition that subordinate legislation is law , flows corollary that it can create rights, obligations, duties and liabilities".
According to Bennion' s annotation, "The main reason why the legislature delegates is that it cannot itself go into sufficient detail. The answer is two-tier legislation. The top tier is the enabling Act, sometimes known as a skeleton Act or what Sachs J called a streamlined Act. The second tier is laid down in delegated legislation, which can easily be adjusted in the light of experience of its working. The true extent of the power governs the legal meaning of the delegated legislation. The delegate is not intended to travel wider than the object of the legislature. The delegate' s function is to serve and promote that object, while at all times remaining true to it. That is the rule of primary intention". Bennion on Statutory Interpretation, Fifth Edition. (Comment on Code S 59. Page 263). Justice G P Singh, in his book "Principles of Statutory Interpretation" 12th Edition 2010, (Page 1051) annotated that "Rules made under the statute are treated for the purpose of construction as if they were in the enabling Act and are to be of the same effect as if containe d in Act. Interpretative notes appended to the Rules by the Rule making authority are part of the Rules and hence statutory . It is a recognized canon of construction that an expression used in a rule, bye-law or form made in exercise of a power conferred by a statute must unless there is anything repugnant in the subject or context have the same meaning as is assigned to it under statute. But the rules are to be consistent with the provisions of the Act, and if a rule goes beyond what the Act contemplates, the rule must yield to the Act".
12. Much emphasis was made by the learned counsel for the PEMRA that under PEMRA Ordinance, 2002, a right of appeal is provided under Section 30-A to an aggrieved person against any decision or order of the authority within 30 days of the receipt of such decision. The Authority means the Authority established under Section 3 of the PEMRA Ordinance 2002 with its Chairman and members appointed in terms of Section 6 of the same Ordinance. It is well settled exposition of law that a right of appeal is a right of entering into a superior court and invoking its aid and interposition to redress the error of the forum below . It is essentially continuatio n of the original proceedings as a vested right of litigant to avail the remedy of an appeal provided for appraisal and testing the soundness of a decision and proceedings of the court below . It is always explicated and elucidated that the right of appeal is not a mere matter of procedure but it is a substantive right. While considering the matters in appeal, the appellate courts may affirm, modify , reverse or vacate the decision of lower courts. In our view the communication by PEMRA to the petitioner imposing fine on the recommendation or opinion of COC cannot be considered decision of Authority which also lacks the prerequisites and niceties of Rule 10 of Pakistan Electronic Media Regulatory Authority (Councils of Complaints) Rules, 2010 in which Authority (PEMRA) has to take into consideration the recommendations made by the Council in each matter and may approve the recommendations or disagree with the recommendations while recording the reasons in writing for the same and pass such order as deemed appropriate or refer the matter back to the Council for reconsideration if so considered necessary in the opinion of the Authority so for all practical purposes, no decision is in field against which an appeal could have filed and in fact, the proceedings arising from show cause notice ought to be initiated under Section 29 of the PEMRA Ordinance 2002 without recourse to the Council of Complaints. In the case of Gatron (Industries) Limited versus Government of Pakistan and Others (1999 SCMR 1072 ), the apex court held that rule that invoking the Constitutional jurisdiction was possible only after exhausting all other remedies, is a rule of convenience and discretion by which the Court regulates its proceedings. Constitutional petition is competent if an order is passed by a Court or Authority by exceeding its jurisdiction even if the remedy of appeal/revision against such order is available, depending upon the facts and circumstances of each case.
13. Fundamentally the Judicial review is a court's regimen and command to review the legislative and executive actions to maintain and sustain the rule of law. Under the dominion of Judicial review, the court reviews the lawfulness of a decision or action made by a public body. The court may invalidate laws, acts and governmental actions that are incompatible with a higher authority more so, an executive decision may be invalidated for being unlawful and also maintains check and balance. Judicial review is an audit and taking stock of legality of decision made by public bodies likewise all corpuses exercising functions of a public law nature are susceptible to challenge. Judicial review can be sought on the grounds that a decision arises when a decision-maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have, which is known as acting ultra vires; a decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it; a failure to observe statutory procedures or natural justice; or in breach of legitimate expectation, either procedural or substantive. In the case of Tariq Aziz-ud-Din, Human Rights Cases Nos. 8340, 9504-G, 13936-G, 13635-P & 14306-G to 14309-G of 2009, decided on 28th April, 2010.
(2011 PLC (C.S.) 1130), the apex court held that all judicial, quasi-judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and instruments.
14. As a result of above discussion, the impugned decision dated 8.12.2017 is set aside. However , the respondent No.2 (PEMRA) may initiate the proceedings against the petitioner in accordance with Section 29 of the Pakistan Electronic Media Regulatory Authority Ordinance 2002.