SHAHID WAHEED, J.---The petitioner of the first petition, that is, W.P. No. 100 of 2022, namely Independent Media Corporation (Pvt.) Ltd., (the IMC) is one of the companies of Geo Group which owns and operates the widely watched TV channels whereas the second petition (W.P. No. 1524 of 2022) is from Blitz Advertising (Pvt.) Ltd. (Blitz), which deals in the business of sports marketing and management. The allegations made in both the petitions and the arguments presented in support of them suggest that the petitioners are piqued by the business partnership agreement that the Pakistan Television Corporation Limited (the PTVC) has entered into to form a joint venture with two private entities, to wit, ARY. Communications Limited (the ARY) and GroupM Pakistan Private Limited (Group M) to obtain the contract of PSL TV Broadcast Rights for 2022-2023 (for Pakistan Region only). Inasmuch as these two petitions aim to target the same object, they are amenable to common disposal,
2. The decision of these two petitions will become easy when we understand their keynote thought and that will come to fore automatically when the facts will be stated in chronological order till the recourse of this Court. So, I am resorting to the same modus operandi. The facts, to the extent necessary to appreciate the issues canvassed, are brief and may be conveniently stated from 10th August, 2021, when the PTVC issued an advertisement in the daily "Business Recorder", inviting the private/public sector organizations to share their proposals for potential software and infrastructural (equipment) based Public Private Partnership business models/ideas in specialized sports genre including (a) acquisition of rights (international and domestic), (b) marketing of PTV Sports, (c) specialized programming entailed (during live events) and for non-live FPC for PTV Sports including awards and reality shows etc., (d) brand collaborations and media partnerships, or any other innovative Collaboration Partnership proposals. The eligibility criteria for making expression of interest was that the organization or an individual should be eligible for entering a business arrangement as per the applicable laws in Pakistan, have strong professional credentials and a solid financial profile, and was not or had never been defaulter of the PTVC. While the terms and conditions of submission of proposals, inter-alia, included that they would be evaluated considering the PTVC's Standard Operating Procedures, Policy Guidelines, the PTVC would reserve the right to accept or decline any proposal, and the proposing party would not have the right to challenge the PTVC's decision about accepting or rejecting any proposal without any justification whatsoever, the PTVC would hold complete editorial control over the content (entailed programing during live shows and shows on the non-live FPC) and, that the PTVC would hold the rights they had already acquired (broadcast or digital) other than when used as a carrier. Subsequently some new conditions for submission of proposals were added through Addendum dated 13th August, 2021 and it was made clear that the interested parties should ensure availability of Cable and Satellite specialized sports broadcast (channel) in lieu of the partnership for the ICC Rights (2020- 2023), that the proposals for PTV Sports infrastructural enhancement would be evaluated based on equipment, upgradation (from SD to HD) requirements of the PTVC, that the proposals should be comprehensive, and the upgradation part would be assessed by the technical team at the PTVC, and that overall experience, financial strength; profile, investment in technical upgradation of PTV Sports, financial and partnership models of the interested parties would be considered as a benchmark for acceptance of proposal(s). In response to the above-stated advertisement, the PTVC received four proposals from (a) GroupM/ARY (consortium), (b) Blitz, (c) Tower Sports, (d)
Trade Chronicle. The Evaluation Committee formed by the Managing Director of the PTVC (comprising Director Sports and Syndication, Chief Commercial Officer, Director Finance, Director Engineering and Director Administration and Personnel) reviewed the proposals, shortlisted Blitz and ARY/GroupM, and then, after negotiating with them, approved the proposal made by ARY/GroupM, and in pursuance whereof agreement forming business partnership/joint venture was executed on 16th September, 2021 between the PTVC, GroupM and ARY.
3. Henceforth the facts triggering the cause of filing the present petitions will start. It is an admitted fact that the Pakistan Cricket Board (the PCB) on 1st December, 2021 for 2022 Edition of the Pakistan Super League (the PSL), scheduled to commence from 27th January, 2022, through publication in daily newspapers invited bids for the award of PSL TV Broadcast Rights for 2022-2023 (for Pakistan Region only), to which IMC and the Joint Venture of the PTVC submitted their bids. At this stage, the IMC for the first time through its letter dated 27th December, 2021 challenged the legality of the Joint Venture on the ground that it was formed surreptitiously and without any competitive bidding process. The object of the challenge was so obvious, and that was to make itself sole bidder for PSL broadcast rights. The challenge, however, turned out to be an abortive attempt and the contract was awarded to the PTVC's Joint Venture. The IMC thereupon brought two constitutional petitions before this Court, the first was W.P. No. 99 of 2022 assailing the validity of the decision rejecting its bid by the PCB and the other was W.P. No. 100 of 2022 questioning the validity of the Joint Venture formed by the PTVC. Both the petitions came up for peremptory hearing before this Court on 4th January, 2022, when the IMC after arguing the matter and giving second thought opted to withdraw W.P. No.99 of 2022 so that it could avail its remedy before the Grievance Committee, constituted by the PCB, while in the other petition i.e. W.P. No.100 of 2022 notices were issued to the other side for their report and parawise comments. It is pertinent to note that on the first date of hearing, during preliminary arguments, the objection was raised by the other side that since the IMC had not expressed interest to the PTVC, it could not be heard saying that the Joint Venture was not valid nor could it be treated as whistleblower in the public interest. It appears that this objection might have given a fillip to the IMC to seek the support of Blitz, so the second petition (i.e. W.P.
No.1524 of 2022) was got filed from it to challenge the Joint Venture of the PTVC.
4. Before I proceed further, two points need to be mentioned as some reference was made to them at the Bar. First, since both of these petitions seek orders in the nature of writ of mandamus and certiorari against the PTVC, a public limited company, it must be settled at the outset whether it should be regarded as a person performing, functions in connection with the affairs of the Federation or a Province. The diagnostic tool for such like issue is functional realism and not facial cosmetics. It is a matter of common experience that the Government ordinarily acts through the instrumentality or agency of natural persons or it employs the instrumentality or agency of juridical persons to carry out its functions. In the early days when the Government had limited functions, it could operate effectively through natural persons constituting its civil service. But as the tasks of the Government multiplied with the advent of the Welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often specialized and highly technical in character and thus, it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances the corporation came into being as the third arm of the Government and over the years it has been increasingly utilized by the Government for setting up and running public enterprises and carry out other public functions. It is apposite to state that it is immaterial for the issue, under discussion, whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not. Notwithstanding the above, few things are now clear, that is, firstly, if the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government, secondly, if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government, thirdly, where the financial assistance of the Government is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character, and fourthly, existence of deep and pervasive Government control may afford an indication that the corporation is a Government agency or instrumentality[1]. It is in the light of this discussion that we must now proceed to examine whether the PTVC is an instrumentality or agency of the Government? The answer must obviously be in the affirmative if we have regard to the Memorandum and Articles of Association of the PTVC. The Board of Directors of the PTVC is appointed by the Government of Pakistan. The PTVC is a public limited company with an authorized capital of Rs.3.000 billion and the Government holds entire paid up share capital of Rs.1529.300 million. The objective of the PTVC is to establish a network of television stations in Pakistan by erecting, constructing, maintaining and improving television stations at places approved by the Government of Pakistan, and to carry out instructions of Government of Pakistan with regard to general pattern of policies of programmes, announcements and news etc. It will thus, be seen that the Government of Pakistan has full control of the working of the PTVC and it would not be incorrect to say that in the affairs of the PTVC, the voice is of the Government of Pakistan and the hands are also of the Government of Pakistan. I must, therefore, hold that the PTVC is an instrumentality or agency of the Government and does fulfill the above-stated diagnostic test to qualify as a person performing functions of the Federation.
5. The second preliminary issue to be determined is whether the commercial transactions of the Government or its instrumentalities or agency can be brought under judicial review. There is no need for a detailed discussion on this issue, for the principles governing it are now well settled. A study of case-law suggests certain principles relating to scope of judicial review of administrative decisions and exercise of contractual process by government bodies and they are: (a) the basic requirement in fairness in action by the Government, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to judicial review only to the extent that the Government must act validly for a discernible reason and not whimsically for any ulterior purpose. If the Government acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities, (b) in the matter of. awarding a contract, greater latitude is required to be conceded to the Government unless the action of the Government is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted, (c) if the Government or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim a fundamental right to carry on business with the Government, (d) the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made, (e) the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible, and (f) quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure[2].
6. Based on the above-stated two preliminary points, the IMC has called upon this Court to review the legality of the joint venture formed by the PTVC with the plea that the PTVC without asking it or other broadcasters whether they were interested in collaborating with the PTVC, could not contract directly with ARY/GroupM. This argument suggests that having a partnership with the PTVC was a lucrative business so every broadcaster should have equal opportunities to benefit from it. It is true that the PTVC is a State-owned corporation and in order to bring transparency in its commercial affairs, it is imperative that it should provide a level playing field to all public and private entities.
Looking at the record of the present cases, it is clear that the PTVC, complying with the above requirement of law, had solicited proposals for public-private partnership through a newspaper advertisement. This was a sufficient notice to the public at large. So, in Shakespeare's[3] words, this opportunity was like a tide in the affairs of the IMC, which taken at the flood, could lead it on to fortune. Therefore, the IMC should have been vigilant for the growth of its business and taking advantage of this opportunity, should have submitted its proposal to the PTVC. It did not do it and wasted its time and thus, protesting at this belated stage is like crying over spilled milk. It is also on record that in response to newspaper advertisement, four companies ventured their proposals and the PTVC entered into business agreement with the ARY/GroupM through a competitive bidding process and thus, the complaint of the IMC is not justified and as a result, it also cannot be permitted to invoke the discretionary power of this Court for the grant of an order in the nature of a writ of certiorari or mandamus as it has failed to show that the agreement dated 16th September, 2021, forming business partnership/joint venture between the PTVC, ARY/GroupM, sought to be set aside has occasioned some injustice to it[4].
7. This brings me to the point that, in spite of the above-mentioned laxity in not proposing to the PTVC, the IMC can, in the public interest, be heard to say that the agreement, firming joint venture, is not only non-transparent due to non-compliance with the Public Procurement Rules, 2004 but through it huge financial loss has been caused to the public exchequer. This requires reviewing the scope and limitation of public interest litigation. Such type of litigation does not strictly fall under any provisions of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Even so, it has received judicial recognition enabling this Court to enlarge the scope of the meaning of "aggrieved person" to include a public spirited person who brings to the notice of this Court a matter of public importance requiring enforcement of fundamental rights. It is, therefore, important that public interest litigation undertaken by a person must in the first place clearly demonstrate its complete bona fide that such litigation is not being undertaken to serve a private interest but is aimed at serving a public interest, good or welfare. On the contrary, in the present case, the IMC has a personal interest in the present litigation as it is motivated purely by its own economic interest and this is evident from its own letter dated 27th December, 2021 asking the Managing Director, PTVC to cancel the agreement with the ARY/GroupM and enter into partnership with it on the same terms. It means that the terms on which the PTVC has agreed to form partnership/joint venture with the ARY/GroupM are flawless and they are sound financially, and the second is that the present petition is not in the public interest but for personal economic interest of the IMC. It is now pellucid that the IMC just wants the entire process reversed so that it can get a contract of PSL broadcasting rights. By all means, this is a malicious attack, and given these circumstances, the exercise of constitutional jurisdiction would amount to allowing the IMC to throw spanner in the economic affairs of the PTVC. I will thus, not examine the case from that standpoint. I have already held that the IMC has no cause of complaint and since it was not treated unfairly, I need not comment upon the argument on the application or otherwise, of the provisions of the Public Procurement Regulatory Authority Ordinance, 2002 and the rules made thereunder, to the present case[5].
8. I may now turn to Blitz's petition. First of all, three things are to be noted, firstly, that Blitz has not filed its petition in the public interest, secondly, except for one new objection, its contents are the same as that of the IMC's petition, and the third is that Blitz submitted its proposals to the PTVC in response to newspaper notice dated 10th August, 2021, but it was not approved. Now let's look at the new objection raised by Blitz. That is, since the PSL rights were neither mentioned in the notice, nor in all the decision-making process undertaken thereunder, the agreement of the PTVC forming partnership/a joint venture with the ARY/GroupM is illegal, and thus, by setting aside it, an opportunity be granted to it to make a fresh offer to the PTVC for the purchase of broadcasting rights of PSL. There is no merit in this objection. The notice dated 10th August, 2021, inviting expression of interest, clearly stated that the PTVC was looking for workable proposals for potential software and infrastructural (equipment) based Public Private Partnership business models/ideas in specialized sports genre, in which, acquisition of rights (international and domestic) was included, and PSL, according to the PCB, is an annual domestic Twenty-20 tournament. There was thus, no confusion, ambiguity or omission in the notice. It was clear in the notice that proposal was also invited for domestic sports. There is also nothing on record to show that Blitz had made any complaint as to vagueness or lack of specific details of the specialized sports genre for which the offers were invited. The record presented by the PTVC, during the course of hearing, indicates that Blitz was one of the parties that was shortlisted and with whom terms/proposals were negotiated.
The said record contains a letter/report (Ref. No.DS/E01-2021) dated 6th September, 2021, which unfurls that Blitz had made its proposals under two heads, one was about the acquisition cost of ICC rights, and the second related to the acquisition cost of other rights, that possibly included domestic sports. All the above facts lead me to believe that Blitz knew very well the details about which the proposals were invited by the PTVC, and that it was neither treated unfairly nor discriminately. It appears that filing of this petition is an attempt by Blitz with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade this Court to exercise power of judicial review. This attempt should be resisted, for, power of judicial review cannot be permitted to be invoked to protect private interest at the cost of public interest, particularly when it is clear that the decision of the PTVC relating to execution of agreement dated 16th September, 2021, forming business partnership/joint venture with the ARY/GroupM, is bona fide and is in public interest.
9. There is another good ground upon which the petition filed by Blitz must fail. There is no denying that the notice inviting expression of interest stipulated that the proposing party would have no right to challenge the PTVC's decision about accepting or rejecting any proposal. Blitz knowing this condition had submitted its proposal and thus, upon being declared unsuccessful, it could not be held to be clothed with any right conferring locus standi to present unattested or unverified photostat private document, showing privileged communication purportedly with a representative of the PTVC through WhatsApp, to challenge the terms of the notice inviting expression of interest and the entire decision-making process, on the ground, that it was an outcome of the non- competitive process and discriminatory treatment6. Such afterthought action can never be entertained by the Courts.
10. Considering the judicial pronouncements and the grounds raised on behalf of the petitioners and the respondents, I am of an undoubted opinion that both the petitioners have not made out any valid ground for the purpose of interfering with the process of award of business partnership agreement. Thus, both the petitions are devoid of merits and accordingly, the same stand dismissed.
1. The Constitutional Law of the "Security State" by Arthur S. Miller (10) Stanford Law Review 620 at 664, Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others (PLD 1975 SC 244), R.D. Shetty v. The International Airport Authority of India and others (1979) I S.C.R. 1042 Echo West International (Pvt.) Ltd. Lahore v. Government of Punjab through Secretary and 4 others (PLD 2009 SC 406)
[2]Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation (1947) 2 All ER 680, Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141, Regina v. Monopolies and Mergers Commission, Ex parte ARGYLL GROUP PLC (1986) 1 W.L.R 763, Regina v. Tower Hamlets London Borough Council, Ex parte Chetnik Developments Ltd. (1988) AC 858, Regina v. Secretary of State for the Home Department, Ex parte Brind and others (1991) AC 696, Tata Cellular v. Union of India (UOI) (AIR 1996 SC 11), Messrs Airport Support Services v. The Airport Manager, Quaid-E-Azam International Airport, Karachi and others (1998 SCMR 2268), Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others (PLD 2001 SC 116), Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455), Habibullah Energy Limited and another v. WAPDA through Chairman and others (PLD 2014 SC 47), and Premier Battery Industries Private Limited v. Karachi Water and Sewerage Board and others (2018 SCMR 365)
3. Julius Caesar Act-IV, Scene-III.
[4]The Queen v. Lord Newborough (1869) LR 4 Q B 585, and Nawab Syed Raunaq Ali and others v.
Chief Settlement Commissioner and others (PLD 1973 SC 236).
[5]Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 SC 482), Moulvi Iqbal Haider v. Capital Development Authority and others (PLD 2006 Supreme Court 394), Echo West International (Pvt.) Ltd. Lahore v. Government of Punjab through Secretary and 4 others (PLD 2009 SC 406)
Petrosin Corporation (Pvt.) Ltd., Singapore and 2 others v. Oil and Gas Development Company Ltd. through Managing Director, Islamabad (2010 SCMR 306), Muhammad Shafique Khan Sawati v. Federation of Pakistan through Secretary Ministry of Water and Power, Islamabad and others (2015 SCMR 851) and Premier Battery Industries Private Limited v. Karachi Water and Sewerage Board and others (2018 SCMR 365)