MAULVI ANWARUL HAQ, J.--- Pakistan Telecommunication Company Ltd. (PTCL) having exclusive right under Pakistan Telecommunication (Reorganization) Act, 1996 (hereinafter to be referred as the said Act) invited bids for awarding contract for provision of Digital Subscriber Line (DSL) services. Several parties participated and the appellants emerged as successful in the said process. Further negotiations were conducted between the said parties and ultimately contracts were awarded on 28.12.2001 to the appellants subject to terms and conditions recorded in the said agreement duly executed. According to Clause 34.2 of the said agreement the said PTCL was not to be prevented from engaging any other contractor to provide the DSL services in Pakistan. However, this was to be subject to determination by PTCL after consideration of the market dynamics. The appellants apprehending breach of the said covenant filed a civil suit. In response to the said suit it was pleaded by the PTCL that the contracts for the provision of the said services are going to be awarded to other persons on the basis of an order passed by the respondent on 19.4.2003.. The appellants filed appeal in terms of Section 7(2) of the said Act which was heard by the respondent- Authority and was decided vide order dated 11.10.2003. Present appeal has been filed in terms of Section 7(1) of the said. Act against the said order dated 11.10.2003.
2. Learned counsel for the appellants has contended that whereas the said order dated 19.4.2003 purported to state that it was passed by the respondent-Authority, the same is not correct as there was no Member Technical and no Finance Member within the meaning of Section 3(2) of the said Act. According to the learned counsel said members were appointed on 21.5.2003. The authority of the said two members to hold such an office is also questioned with reference to the provisions of Section 3(4) of the said Act. However, states that this, matter is being considered by this Court on application filed by some party seeking a writ of quo warranto. Learned counsel further contends that by all means an adverse order was passed against the appellant without hearing them.
According to the learned counsel the awarding of contract to parties other than the appellants was subject to determination after consideration of the market dynamics by PTCL. Learned counsel states that no such market survey or other proceedings were undertaken prior to the said determination. He refers to some facts which are that PTCL itself had objected to the said order dated 19.4.2003 vide letter dated 18.5.2003. Thereafter 'suit was filed and a stay order was issued by Civil Court on 16.7.2003. The respondent-Authority issued fresh directive on 8.8.2003 and consequently PTCL issued fresh Requisite on for Proposal (RFP) on 29.8.2003 on Internet and on 30.8.2003 in Press. Contempt application was filed and it was with the reply filed by PTCL on 14.10.2003 that the market survey report was appended for the first time. Meanwhile appeal had already been heard by the respondent-Authority on 29.9.2003. However, the said market survey finds mention in the order dated 11.10.2003, passed pursuant to the said hearing on 29.9.2003.
Regarding representation dated 26.3.2003, referred to in the impugned order, learned counsel states that it was made by a person who had failed in the bidding process conducted for the award of said contracts. Learned counsel then contends that the impugned order was apparently passed by an officer of PTA but According to him neither was he delegated any power to pass an order of the said nature nor could such powers be delegated by the Authority to the said officer, refers to Section 9 of the said Act. Regarding accusation that the appellants have been over- charging, the reply is that the Authority itself fixes tariff.
3. Learned counsel appearing for the respondent contends that the impugned order has been passed after hearing the appellants. According to him, the original order dated 19.4.2003 was passed by the Authority itself. Refers to Section 3(10) of the said Act to urge that the impugned order was not liable to be interfered with for the reasons of any vacancy in the Authority or any defect in its constitution. Learned counsel, however, is unable to demonstrate that the said original order dated 19.4.2003 was in fact passed by the Authority constituted properly or otherwise.
4. I have given some thought to the respective contentions of the learned counsel for the parties and have examined the impugned orders dated 19.4.2003 and 11.10.2003 in the light thereof.
5. Before I proceed further I deem it proper to reproduce here Clause 34.2 of the said contract:- "34.2. Non-exclusivity.-- The contractor will provide DSP services through industry-standard market-based DSL technology on non-exclusive basis, and PTCL will not be prevented by virtue of this agreement from engaging any other contractors to provide DSL services, in Pakistan. Further outsourcing of DSL services provisioning shall be determined by PTCL after consideration of the market dynamics".
It will be seen that non-exclusivity envisaged in the said Clause was made subject, of course, by agreement of the said parties, to a determination to be made by PTCL after consideration of the market dynamics, Grievance being made out by the appellants is that no such determination was made by the PTCL and certainly not to their notice and knowledge. Now the said order dated 19.4.2003 narrates that the PTCL has already launched the said DSL services in collaboration with the private sector. There is no denial that the reference is to the present appellants. The order then proceeds as follows:- "The Authority after considering all the pros and cons has deolded to allow all the licensed ISPs to offer broadband DSL services in order to promote high speed Internet services to the consumers.
The ISPs shall have to sign an Inter-connect agreement with PTCL for the provision of DSL services.
The existing M & 0 contracts of PTCL shall continue as such.
However, PTCL shall submit their tariff proposal to PTA for prior approval."
Now it will be seen that there is no reference at all in this order either to the contents of the said Clause 34.2 or to any process applied for determining the market trends or dynamic. Now a copy of the market survey allegedly got conducted by the PTCL is Annexure K. This document was filed in the said Civil Court proceedings. This document does not disclose as to who has conducted the said survey and when. Besides this the said document itself concludes that in order to get more dependable findings a systematic market research study to be conducted. Now the impugned order although reproducing some portion of the said alleged survey itself is silent as to who conducted the said market dynamics study. So far as the said presentation is concerned, letter dated 22.3.2003 of the respondent-Authority narrates that presentation has been arranged by a representative of M/s. Cyber Internet Services in Conference Room of PTA on 22.3.2003. Copy of this letter has, of course, been issued to the appellant No. 1. It has not been denied that the said Organization was one of the failed bidders as stated by the learned counsel for the appellant.
6. Now the impugned order gives impression that the respondent-Authority treated the order dated 19.4.2003 to be an order passed by an officer of the Authority. In the entire text of the order the matter has been dealt with accordingly. Now the functions of the Authority have been narrated in Section 4 of the said Act while the powers to be exercised are narrated in Section 5 of the said Act. Section 9 permits the respondent-Authority by general or special order to delegate any of its powers under Clause g, i, k and L of Section 5 of the said Act. Upon plain reading of Sections 4, 5 and said Section 9 of the said Act, the powers vesting in the Authority in the matter of contracts and further in the matter of dispute between the Licencee and the contractors of the category of the appellants are outside the purview of Section 9 of the said Act. I have already stated above that the learned counsel for the respondent has not been able to demonstrate from the record present with him that the order dated 19.4.2003 in fact was passed by the Authority notwithstanding its Constitution.
7. Section 6 of the said Act defines responsibilities of the respondent-Authority. I am constrained to observe that both the impugned orders do not fulfil criteria laid down in Section 6 of the said Act.
8. In view of the above discussion, I find that in the very first instance it was for the respondent- Authority itself to have taken said decision in strict accordance with the provisions of Section 6 of the said Act, of-course, after giving a notice to the appellants who are certainly persons affected by the said decision or the determination to be made after determination of market dynamics.
Said alleged market survey is not free from doubt apart from the fact that it is not conclusive in its own terms.
9. This RFA accordingly is allowed and the impugned orders are set aside. The matter is remanded back to the respondent-Authority for determination in the said DSL case after notice to the appellants and all concerned, hearing them and, of-course, after getting conducted a fresh market dynamics study/survey. The matter to be so concluded within two months of the receipt of this order. Copy be remitted to the said respondent-Authority by the office immediately. .