' Comments have been filed. The case of the petitioner is that he is the Chief Executive/Chairman of Shamma Floor and General Mills (Pvt.) Limited which is a subscriber of the respondent regarding Telephone No,863340 at Burhan, District Attock, and has been regularly paying all the bills of the respondent regarding the said telephone number. The last bill for September, 1996, of amount of Rs,24,638 was paid on 30-10-1996. All of a sudden, the petitioner has received the bill for the month of November, 1996, of an amount of Rs,2,03,447. The petitioner enquired from the respondent about the matter who vide Letter No, TR/SAO-Cant/OCS, dated 31-12-1996 replied that line rent chargeable from the petitioner was Rs,6,000 instead of Rs,1,260 and the differential of rent per month was Rs,4,740. Thus, for 3 months (July 1996 to September, 1996) it became Rs,1,80,120 which has been included as other charges in the bill of October, 1996. The respondent also threatened the petitioner of disconnection of his telephone if the bill was not paid immediately.
2. It is contended by the learned counsel for the petitioner that the claim made in the impugned letter and bill is a tall-claim without having been determined in accordance with law and does not qualify to be called "dues" of the respondent and that it has been done without affording an opportunity to the petitioner before making the said claim and issuing the impugned bill/letter which is arbitrary, fanciful and even against law. It is also urged that the claim is time-barred because it pertains to July, 1993 to September, 1996. It is also urged that the line rent could not be charged retrospectively. The stand taken by the respondent-Corporation in their comments is that the line rent for long distance telephone was enhanced in accordance with section 16 of the Pakistan Telecommunication Corporation Act, 1991, within the legal competence of the Corporation.
Section 16 of the Pakistan Telecommunication Act, 1991, reads as under:-- "S. 16.--Tariffs for provision of Telecommunication services.--(1) The tariffs at which the Corporation may provide Telecommunication services to users in Pakistan shall be determined by the Board with the prior approval of the Federal Government: ' Provided that the Corporation may reduce any of the said tariffs with the prior approval of the Board: ' Provided further that, the tariffs being charged by the Pakistan Telegraph and Telephone Department immediately before the commencement of this Ordinance shall be deemed to have been approved by the Federal Government.
(2) In fixing the tariffs as aforesaid, the Board shall take into account the cost of providing services and the need to mobilize funds for the development of telecommunications and to earn a reasonable return on the investment.
(3) The Board may, from time to time, settle with foreign telecommunication administrations rates at which accounts are to be settled with the said administrations in respect of telecommunication traffic between Pakistan and other countries: ' Provided that, where revision of such rates results in an increase in collection charges from users in Pakistan, the approval of the Federal Government to such revision shall be obtained.
(4) In the case of any conflict between tariffs determined under subsection (1), from time to time, and the rules framed under the Telegraph Act, 1885 '(X111 of 1885), the said rules shall, on and from the date of determination of the said tariffs, stand amended to the extent necessary to remove such conflict."
Subsection (1) of the above section has thus given the power to the Board to determine the tariffs at which the Corporation may provide telecommunication services to users in Pakistan but such determination could only be made with the prior approval of the Federal Government. The reproduction of Annexure (B) filed with the comments of the respondent, seems to be necessary to see as to how this mandatory provision has been misinterpreted by the Ministry of Communication:-- "23. Reference query at para. 14 and subsequent notes thereon.--Section 16(1) of the P.T.C. Act, 1991 provides for approval of the P.T.C. Tariffs by the Federal Government. Since the level or the forum implied in the term 'Federal Government' has not been specifically provided in the section, it has to be interpreted under the normal parlance. This implies that it is for the Ministry of Communications to use its best judgment as to whether it may itself approve a proposal for increase of the tariff submitted by the P.T.C. Or refer it to a higher forum like the E.C.C. Or the Cabinet for approval.
Naturally, the choice of a forum would depend on the importance, and likely impact, of a proposal.
Considering that increase in the tariff of the call rates is a matter of obvious importance, it is the practice to refer it to the Cabinet for approval. The subject proposal for increase in the tariff of leased circuits and non-exchange lines does' not fall in the same category. This is relatively a minor matter, and has been primarily initiated by the P.T.C. To plug a source of leakage of revenue.
P.T.C. Has already started collecting the charges at the new rates. Excepting a few affectees who are obviously the interested parties and would have been expected to oppose the increase, hardly any adverse public reaction has been noticed. Considering all these aspects, it is recommended that the issue may not to be referred to the E.C.C. Of the Cabinet. The Minister may itself accord the approval.
(Sd.)
(MUHAMMAD SHER KHAN)
Additional Secretary.
22-7-1993 ' Secretary General (C)
24. I think a ref'ce to the E.C.C. Is desirable.
(Sd.)
(S.G. (C)
' Minister
25. In my view as there is no adverse public reaction, go ahead and collect.
(Sd.)
(Minister)
26. Minister for Communications in para.25/N has issued the following orders:-- ' In my view as there is no adverse public reaction, go ahead and collect.
27. Guidance is solicited as to whether or not the aforesaid orders of the Minister for Communications may be conveyed to the P.T.C. For appropriate action at their end.
(Sd.)
(M.A.ASGHAR)
Section Officer (PTC)
' D.S.(II)
28. Ref. Para. 26/N. As desired by Secretary (C) in para.24/ante. The summary was supposed to be put up for E.C.C. Regarding increase in leased circuits tariff but the Minister for communications was pleased to approve that 'if there is no adverse public reaction, go ahead and correct'. The file is re-submitted for guidance as to whether the orders of the Minister for Communications may be conveyed to the P.T.C. For appropriate action.
(Sd.)
(WAHEED A. SHAIKH)
' Deputy Secretary (II) 16-8-1993 ' J.S. (I)
29. We may convey the orders of Minister (C) to the P.T.C. (Sd.) A . S . (C)
30. What was the ambiguity? The orders should not have been delayed for over 3 weeks.
31. As proposed in para. 29/ante.
(Sd.)"
3. When the law provides a thing to be done in a particular manner, the doing of it in that manner is mandatory. In the present case, prior approval of the Federal Government was mandatory under section 16(1) of the Pakistan Telecommunication Corporation Act, 1991. It is not the adverse public reaction on the basis of which the mandatory requirement of law to get prior approval of the Federal Government could be by-passed. A set procedure has been provided in RO-13, 1973, in part 'D' and the present case is covered by Rule 16(1)(d) of the rule ibid. The Secretary to Government in his Note in para.24 had rightly advised that the matter should be referred to the E.C.C. (but) the Minister on his own, ignoring the advice of the Secretary-General's (ordered): "Go ahead as there will be no adverse public reaction". Such an action of the Minister amounts to by passing the rules and regulations which not only creates indiscipline but also gives unfettered powers to the Minister which is not the intention of law. If all organs of the State perform their functions and duties within their prescribed powers, there will be no conflict or any violation or usurpation of powers which only comes when one of the organs encroaches upon the powers of the other organ. Thus, the determination of the tariffs by the Board without the prior approval of the Federal Government is .Against law, without lawful authority and of no legal effect until and unless the prior approval of the Federal Government is obtained. This being the situation, the impugned letter dated 31-12-1996 becomes without any legal basis, without lawful authority and of no legal effect.
4. The writ petition is allowed and disposed of accordingly.