PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) through Chairman, Islamabad vs SOUTHERN NETWORKS LIMITE

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PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) through Chairman, Islamabad VS SOUTHERN NETWORKS LIMITED, KARACHI Ss. 25 & 30(1)(d)---Pakistan Electronic Media Regulatory Authority Rules, 2009, Rr. 7(e), 9(5), 13(3) & 16(2)---Multi-Channel Multi-Point Distribution Service (MMDS) license, revocation of---Change in management of licensee without prior permission from PEMRA---Unlawful conduct of PEMRA and licensee---Remand of case to PEMRA---Before the 10 year term of respondent's license expired, the CEO of the respondent-company handed over its management to a new set of persons---New directors/major shareholders informed PEMRA about the change in management of the company---Thereafter an application for renewal of license was made by the new CEO which was granted by PEMRA---Respondent company paid Rs.45 million by way of revalidation fee that was due from it---Subsequently PEMRA issued a show cause notice to the company threatening suspension/revocation of the license and imposition of fine under the provisions of section 30(1)(d) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('PEMRA Ordinance, 2002') read with Rule 16(2) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 ('PEMRA Rules, 2009') for unlawful change in its management without prior permission from PEMRA---PEMRA revoked the license of the respondent company---Such action was appealed by the company before the High Court---While the appeal was pending in the High Court, the respondent company again changed its management twice---Be that as it may, the High Court remanded the matter back to PEMRA---On remand PEMRA once again revoked all licenses of the respondent company---Legality---PEMRA gave a post facto validation of the license to the respondent company, until the date its license was revoked---Such stance may possibly have been meant to mitigate the past conduct of PEMRA when having granted renewal of the license on 15-10-2012 to the new management of the respondent, PEMRA had thereafter taken a contrary stand by issuing the respondent a show cause notice on 19-3-2014 and then revoking its license on 5-5-2014---In the impugned judgment High Court failed to consider the statutory conditions laid down in section 30(1)(d) of the PEMRA Ordinance, 2002 read with Rule 16(2) of PEMRA Rules, 2009---Furthermore, the impugned judgment did not take into account the specific conditions applicable to the scrutiny of an application for transfer of management of a licensee company laid down in section 25 of the PEMRA Ordinance 2002 read with Rules 13(3), 9(5) and 7(e) of the PEMRA Rules, 2009---High Court had over emphasized PEMRA's requirement demanding the outgoing directors of the respondent company to be present whilst considering the application by the respondent company for change in its management---Accordingly, the conditions of remand directed the impugned judgment disregarded the mandatory requirement of prior permission imposed by the statute in the provisions of the PEMRA Ordinance 2002---Said statutory provisions had mandatory effect and could not be overlooked merely because an unlawful or unreasonable condition of personal appearance of the outgoing directors before PEMRA had been imposed by the latter authority---Such condition of personal appearance may be relevant for processing the application for change of management of a licensee under particular circumstances, therefore, the same could not be ruled to be altogether irrelevant for consideration by PEMRA---In the present case PEMRA had itself misled the respondent company by a course of action that justified the consideration of the latter's change of management application on its merits---PEMRA could only be justified to insist upon the revocation of license as the only consequence attracted by the delinquent conduct of a licensee when it had acted lawfully in the enforcement of the statutory provisions---Supreme Court remanded the matter to PEMRA to consider the change of management application filed by the respondent strictly in accordance with law--- Petition for leave to appeal was disposed of accordingly.

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) through Chairman, Islamabad vs SOUTHERN NETWORKS LIMITED, KARACHI Ss — 2023 SCMR 1348 SUPREME-COURT

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