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TRADE SERVE INTERNATIONAL (PRIVATE) LIMITED versus PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY

- S, 14 - Constitution of Pakistan, Arts 73 and 19 - Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations) Regulations, Regulations 7 and 9 - Pakistan Electronic Media Regulatory Authority Rules, 2009, R9 - The mini-bill procedure procedure Nature - Elect Pemra Fund Pakistan Pakistan License grant from Pakistan Electronic Media Regulatory Authority, (PEMRA) ? Ability to operate radio broadcasts - License fee fee License fee submitted to PEMRA Fund under the terms of renewal of such license fee Nature of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 Scope of application In reference to the termination of section 14 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, the implementation and renewal of the license fee imp, petitioners for the Radio Broadcasting License stated that the renewal fee of 11 pm. a was a tax fee and not a fee, because there was no pro for the said fee, and that was not a money bill in the meaning of Article (a ()) (a) of the Constitution - Money Bill - Constitution. In Article er73 ()) (A), it was clear that the \\\ license fee \\\ or \\\ fee \ it was not a tax \\ and that the license fee was different from any fee or charge for different services. And it is not necessary Each license must be quid pro quo or the license fee or renewal fee must be passed through a mini bill through Article (73 (a) (a) \\\ licensing fee and \\\ provided) The difference between the fees for the services differs, which means that the license fee does not require QuotePro. But there must be a correlation between the fees charged by the relevant law and the cost of administration - the license fee remains

PLD 2017 Lahore 563

Before Ayesha A. Malik, J

TRADE SERVE INTERNATIONAL (PRIVATE) LIMITED and others—Petitioners

versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY and others—Respondents

Writ Petitions Nos.2446, 4366, 4367, 4368, 4369, 4370. 4371, 12908, 12909 of 2013 and 29949 of 2014, decided on 12th May, 2017.

(a) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)-’

—-S, 14—-Constitutionof Pakistan, Arts. 73 & 19—Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations) Regulations, 2012. Reglris. 7 & 9—Pakistan Electronic Media Regulatory Authority Rules, 2009, R. 9—Money Bill—Nature of procedure—"PEMRA Fund"—Grant of licence by Pakistan Electronic Media Regulatory Authority, (PEMRA)—Licence to operate radio broadcasting—Licence fee—Renewal of such licence fee—Nature of licence fee deposited into the PEMRA Fund in terms of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002— Scope—Petitioners, impugned vires of S. 14 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, in reference to imposition of "licence fee" and renewal for the same, for radio broadcasting licences—Contention of petitioners inter alia was that pm 11 renewal fee " was a "tax" and not a fee, as there was no quid pro quo for the said fee, and that the same was not passed as a Money Bill within meaning of Art.73(3)(a) of the Constitution—Validity —Per Art.73(3)(a) of the Constitution, it was clear that a "licence fee" or "fee" was not a "tax" and that a licence fee was distinct from a fee or a charge for services rendered and it was not necessary that every licence have a quid pro quo or that licence fee or renewal fee be passed through a Money Bill—Article 73(3)(a) of the Constitution distinguished between "licence fee" and a "fee for services rendered" which meant that a licence fee did not require any quid pro quo but there must exist a correlation between fee charged and cost of administration under the relevant law—Licence fee must commensurate with the cost of regulating although exact arithmetical equivalence was not expected and such licence conferred a right on the licence-holder to do something which it otherwise could not do—PEMRA, in the present case, was required to regulate the licence-holder to ensure compliance of the law and terms of the licence—High Court observed that per the terms of the Constitution, a licence fee could be regulatory in nature where the regulator imposed a fee for regulating activities of the licence-holder and hence licence fee and its renewal fee did not need to be passed through a Money Bill nor did it require any quid pro quo. [pp. 571, 572] A & B

Secunderabad Hyderabad Hotel v. Hyderabad Municipal AIR

1999 SC 635; A.P. Paper Mills Ltd. v. Government of A.P. and another

2000 8 SCC 167; Sreenivasa General Traders v. State of A.P. (1983) 4 SCC 353; (1983) 3 SCR 843 and Corpn of Calcutta v. Liberty Cinema AIR 1965 SC 1107: (1965) 2 SCR 477 rel.

(b) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)-

—Ss. 39, 4(3), 20 & Preamble—Pakistan Electronic Media Regulatory Authority Rules, 2009 Rr.S, 8 & 12—Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations)

Regulations, 2012, Regins. 4, 6, 7 & 9—Broadcast licence(s) issued by Pakistan Electronic Media Regulatory Authority (PEMRA)—Radio broadcasting licence(s)—Grant of licence—Renewal of licence on expiry of the licence term—Procedure for renewal—Determination of quantum of renewal fee(s)—Rebidding tantamount to grant of fresh licence—Nature and scope—In terms of Pakistan Electronic Media Regulatory Authority Rules, 2009 and the Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations)

Regulations, 2012, a clear process had been set out for renewal of radio broadcasting licence and said prescribed process did not contemplate rebidding for the purpose of determining renewal fee or

for renewal of licence, and in such circumstances, rebidding for renewal purposes, tantamount to issuance of fresh licence which was clearly contrary to statutory procedure—Rule 12 of the Pakistan Electronic Media Regulatory Authority Rules, 2009 and Regin. 9 of the Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations) Regulations, 2012 when read together created a statutory right for licence-holder to have licence renewed on terms and conditions provided—PEMRA was obligated to follow prescribed Rules and Regulations and could not go beyond its delegated powers and set out a new process for renewal of licence for radio broadcasting— Manner in which renewal fee wars to be determined was clearly stipulated in the Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations) Regulations, 2012 and Regin.9 of the same, provided that renewal fee shall be the applicable licence fee plus the rate of inflation calculated by the State Bank of Pakistan—lit such cases where the licence fee was regulatory, where no service or privilege was granted by the government authority and where the only purpose of the licence was regulatory for enforcement of statutory requirements, then such a fee could not be excessive, [pp. 580, 582] C&D

Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 ref.

For Petitioners

Raza Kazim, Muhammad Nawaz Bajwa and Usman Raza Jamil and Ms. Fatima Malik (in W.P.No.2446 of 2013).

Jam Asif Mehmood, M. Saim Hashmi, Behzad Haider, Wasif Riaz, Salman Faisal and Ms. Farah Salman (In W.Ps. Nos. 4366, 4367, 4368, 4369, 4370 and 4371 of 2013).

Ali Sibtain Fazli and Hasham Ahmad (in W.Ps.Nos. 12908 and 12909 of 2013).

Raheel Kamran Sheikh, Abuzar Salman Khan and Shahzad Burki (in W.P.No.29949 of 2014).

For Respondents

Muhammad Zikria Sheikh, DAG.

Salman Akram Raja, Muhammad Azam Zia, Tariq Bashir, Bilal Bashir, Yasir Islam Chaudhary and Ms. Unsa Manzoor for Respondent PEMRA along with Tahir Farooq Tarar, Head Legal PEMRA, Punjab.

_Date of hearing: 9th February, 2017._

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