[High Court (AJ&K)]
Before Sadaqat Hussain Raja, CJ and Syed Shahid Bahar, J
Messrs TELENOR PAKISTAN (PVT.) LIMITED through Manager Legal Affairs----Appellant
Versus
PAKISTAN TELECOMMUNICATION AUTHORITY through Chairman--- Respondent
Civil Appeal No.231 of 2021, decided on 16th June, 2023.
(a) Azad Jammu and Kashmir Council Adaptation of Pakistan Telecommunication (Re-Organization) Act (I of 2005)---
----S.23---Pakistan Telecommunication (Re-Organization) Act, 1996 , Ss.4 (1) (c), 6(f), 21 (4) (a) & 7---Telecom Consumers Protection Regulations, 2009, Regln.5(1), 5 (2), 7(2) & 19---Illegal disruption/interruption in providing telecommunication services---Protection of the interests of the consumers by the Pakistan Telecommunication Authority---Scope---Force Majeure---Scope---Abrupt service breakdown was allegedly caused by the mobile/cellular /telecommunication providing company ('licensee')---Pakistan Telecommunication Authority('PTA') imposed penalty upon the mobile company/Licensee for the illegal disruption /interruption in providing services causing loss to the consumers---Appellant/Licensee contended that abrupt breakdown was actually outcome of the unwarranted actions(interfering with telecommunication equipments etc.) on the part of the Tax Authorities, whereas appellant/licensee had adopted legal recourse to challenge tax demands raised by the very Tax Authorities under purported discharge of their official duties, therefore, breakdown was beyond the appellant's reasonable control---Validity---Record revealed that the appellant/licensee had already challenged the tax assessment/ demand leveled by the Tax Authorities before the appellate fora which were pending adjudication, however, the Tax Authorities , in furtherance of the tax demands, attached the licensees BTs Towers and Switched off the BTs towers in the territory---Nothing adverse pertaining to the previous track record of the appellant/licensee was on record which could establish that appellant / licensee had deliberately failed to provide communication services to the consumers---Abrupt breakdown was outcome of attachment of BTs Towers and switching off on account of relevant quarters, thus, appellant/licensee could not be blamed for the same, particularly prior to adjudications of his claim from appellate forum; even by the said angle impugned proceedings were premature---Order of switching off public switch network deployed by the licensee was harsh and not warranted by law as the Consumers suffered a lot for no fault at their end---Provisions of Telecom Consumers Protection Regulations, 2009, and Pakistan Telecommunication (Re-Organization) Act, 1996, were not attracted pertaining to the present controversy and the Authority (PTA) had misconstrued the aforesaid law---Circumstances pertaining to break down were beyond control of the appellant, thus, relevant clause of the licensee qua notice to the consumers was also not attracted---Where evasion of duty was not wilful and deliberate then imposition of penalty was illegal---Where the appellant did not act with mala-fide with the intention to evade the tax the imposition of penalty of additional tax and surcharge was not justified---Findings of the authority were findings of fact which were not based on material available on record, thus findings were perverse---Every quasi-judicial or akin to quasi-judicial findings has to be based on reasons which contain the justification for the findings in the order itself---No penalty can be imposed caused due to force majeure---Authority had failed to attend the very spirit and plain language of the law governing the matter, particularly Regln. 19 of the Telecom Consumers Protection Regulations, 2009---Non observance of force majeure clause was suffice to annul the impugned decision---High Court set-aside the penalty imposed by the Authority (Pakistan Telecommunication Authority)---Appeal filed by the mobile company (licensee) was allowed, in circumstances.
PLD 1991 SC 963; PTCL 1995 CL. 415; PLD 1970 SC 158-173; 1984 SCMR 1014; PLD 1995 SC 272 and 2012 CLC 1145 ref.
(b) General Clauses Act (X of 1897)---
----S. 24-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art. 19---Azad Jammu and Kashmir Council Adaptation of Pakistan Telecommunication (Re-Organization) Act (I of 2005), S.23---Pakistan Telecommunication (Re-Organization) Act, 1996, Ss.4 (1) (c), 6(f), 21 (4) (a) & 7---Telecom Consumers Protection Regulations, 2009, Regln. 5(1), 5(2), 7(2) & 19---Order to be passed with reasoning---Fair trial---Scope---Illegal disruption/interruption in providing telecommunication services---Scope---Protection of the interests of the consumers by the Pakistan telecommunication Authority---Scope---Force majeure---Scope---Abrupt service breakdown was allegedly caused by the mobile /cellular /telecommunication providing company ('licensee')---Pakistan Telecommunication Authority ('PTA') imposed penalty upon the mobile company/licensee for the illegal disruption /interruption in providing services causing loss to the consumers---Appellant/licensee contended that abrupt breakdown was actually outcome of unwarranted actions (interfering with telecommunication equipments etc.) on the part of the Tax Authorities , whereas appellant/licensee had adopted legal recourse to challenge tax demands raised by the very Tax Authorities under purported discharge of their official duties, therefore, breakdown was beyond the appellant's reasonable control---Validity---Each and every order was required to be commanded with rational and reasoning as envisaged under S.24-A of the General Clauses Act, 1897, particularly where it carried penal consequences---Such like order must adonize itself with fairness and solid grounds, in order to qualify the test of fairness embedded in the fundamental guaranteed right i.e. right to fair trial---Irrespective of factum of tax liabilities of the appellant and regardless of the consequences of a breakdown, it was a stark fact oozing from record that appellant could not be blamed for the break down---In view of S.24-A of the General Clauses Act, 1897 read with Fundamental Right of fair trial, it was incumbent upon the Authority to adjudicate the matter fairly and in judicious manner---High Court set-aside penalty imposed by the Authority (Pakistan Telecommunication Authority)---Appeal filed by the mobile company (licensee) was allowed, in circumstances.
2003 YLR 2736; 2004 YLR 1689 and 2008 MLD 1377 ref.
(c) Interpretation of statutes---
----Maxim: Sensus verborum ex causa decendi accipiendus est, et sermones semper accipiendi sunt secundum subjectam materiam---Said maxim denotes that sense of words is to be taken from the occasion of speaking them, and discourses are always to be interpreted according to the subject matter---In interpreting, the context must always be looked to.
Barrister Humayun Nawaz Khan for Appellant.
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