P L D 1986 Karachi 432 (PLP)

NAIMUDDIN, C. J. ‑ By this petition under Article 9 (a)(1) of the Provisional Constitution Order, 1981, the petitioners have prayed for a declaration that the respondent's demand for licence fen` for 80 slave television sets stored in the petitioners' Godown from 1‑7‑1982, till 31st December, 1984, amounting to Rs. 24,,000 contained in the letters dated 14‑11‑1984 and 30‑6‑1985, is illegal and unlawful and is not covered by the Television Receiving Apparatus (Possession and Licensing) Rules, 1970, as amended by the notification of the Ministry of Communications, Govern ment of Pakistan, dated 3rd December, 1981, and for a direction to respon dent to refrain from demanding the licence fee of Rs, 100 each for 90 slave television, sets stored in the petitioners' godown from 1‑7‑1982, onwards and in future so long as the same are stored in the godown and from taking any other action against the petitioner for complying with their demand. .

2. The case of the petitioners is that they are carrying on business in the name of Hotel Plaza International. They imported one master televi sion set and 100 slave television sets for installation in their Hotel which was planned to consist of 100 rooms. According to the petitioners, the Hotel was initially commissioned with only nine rooms in January, 1981, but in those rooms indoor television circuit for showing their own in house television programmes was not installed and, therefore, the sets could not be used. The building of the Hotel however, gradually constructed by mid 1983 consisting of 100 rooms and due to slump in tourist traffic the instal lation of television circuit was effected only in 20 rooms and 20 slave sets were installed therein with one master television set in July, 1983, and the respondents were informed accordingly by the letter dated 3rd December, 1983, in reply to their letter dated 31st August, 1983. However, on receipt of the petitioners' letter dated 3‑12‑1983, the respondents served with a demand notice dated 27th February, 1984, through their Legal Advisor, Mr. Mumtaz Ali Mirza, demanding a sum of Rs. 1,48,000 on account of T. V. Licence fee for 100 slave television sets from 1‑7‑1982 to 30‑6‑1984, for 24 months at Rs 400 per month for each set and surcharge for the same period at Rs. 400 per month. Dissatisfied 'with the demand the petitioners wrote a letter dated 12th March, 1984, to the respondents wherein they pleaded that their letter dated 3‑12‑1983, had been misread and what they said was that they had installed slave T. V. sets in 20 rooms out of 100 rooms and as such the respondents' Inspector was shown one Master television receiving apparatus kept in the machine room and 20 slave television receiving apparatus in 20 rooms. According to the peti tioners they were liable to pay‑ only 2,400 from Ist July, 1983 to 30th June, 1984 at Rs. 400 per year for the Master television receiving apparatus and Rs. 2,000 for 20 slave television receiving apparatus at Rs. 100 each per year. The petitioners sent Rs. 3,120 to the respondents and thereafter, the respon dents made another demand of Rs. 23,920 after deducting the amount of Rs. 3,120 from the whole amount of Rs. 27,040 which was claimed by the respondents on account of licence fee for one Master television set from 1‑7‑1982 to 30th June, 1984 at Rs. 400 per year and from 1‑7‑1984 to 31st December 1984 at Rs. 120 per' annum. In the same manner they demanded fee for 100 slave television sets at Rs,100 per annum from 1‑7‑1982 to 30th June, 1984 and from 1‑7‑1984 to 31st December. 1984 at Rs. 30 per set per quarter, both amounting to Rs. 26,000.

3. It appears that there was also dispute as to the period for which 20 sets were used as according to the petitioners the building of the Hotel . was not ready in July, 1932 and 20 slave television sets were installed in July, 1983.

4. We have heard Mr. Abbas Zia learned counsel for the petitioners and Mr. Mumtaz Ali Mirza learned counsel for the respondents. S. To us it appears that the real question requiring determination in this petition is whether the petitioners are liable to pay the licence 1566' only when the slave television sets are used as claimed by them or they ate liable to pay the fee even on the possession thereof.

6. In order to determine the question, we may refer to certain rules of the Television Receiving Apparatus (Possession and Licensing) Rules, 1970.

7. Rule 3, sub‑rule (2) requires a holder of television receiving apparatus to make an application for licence immediately after he comes into posses sion of a television receiving apparatus and the validity of licence issued to him is to commence from the date he carne into such possession and is to expire at the end 6f the year or the quarter as specified by the holder in the application. He is required for renewing the licence from time to time. Sub‑rule (3) provides that every application under sub‑rule (1) has to accom pany by a fee of the following amount :‑ "(a) If the holder is a person who is not a dealer and does not main tain the television receiving apparatus for commercial purposes, two hundred rupees per year if paid on annual basis, and sixty rupees per quarter if paid on quarterly basis ; (b) If the holder is a dealer or a, person who maintains the television receiving apparatus for commercial purposes, four hundred rupees per year if paid on annual basis, and one hundred and twenty rupees per quarter if paid on quarterly basis." However, the Rules were amended on 2nd December, 1981 and clause (pr was added to rule 3, sub‑rate (3) which provides that if the holder is a hotelkeeper who has installed indoor television circuit for showing Ws own in house television programmes; the same amounts as are payable for a television receiving apparatus maintained for commercial purposes to respect of each master television receiving apparatus and fifty per cent of the amount payable for a television receiving apparatus not maintained for commercial purposes in respect of each slave television receiving apparatus. The sub rule (c) reads as follows :‑ "(c) If the holder is a hotel‑keeper who has installed indoor television circuit for showing his own in‑house television programmes, the same amounts as are payable for. a television receiving apparatus main tained for commercial purposes in respect of each master television receiving apparatus, and fifty per cent. of the amount payable for a television receiving apparatus not maintained for commercial purposes in respect of each slave television receiving apparatus."

8. Accordingly, from the reading of all the three clauses (a), (b) and (c) together, it appears that the petitioners were liable to pay, at the relevant time, Rs. 400 for the master television receiving apparatus and Rs. 200 for each slave television receiving apparatus.

9. However, the argument of Mr. Abbas Zia was that the liability to pay for each slave television receiving apparatus would arise only when the television apparatus receives programmes from the master television set and not when it lies idle in store. He relied on the words 'television receiving apparatus' used in the clauses (a), (b) and (c) of sub‑rule (3) of rule

3. In our view, the submission is not well‑founded for the phrase `Television Receiving Apparatus' is defined in rule 2, clause (i) as follows : " Television Receiving Apparatus' means any apparatus which is capable of being used for receiving the telecaste of the Corporation either by itself or with the addition of electric power, aerials. valves or similar other devices, and includes any apparatus which is temporarily incapable of being so used by reason of a defect in its component parts or in the electric wiring."

10. According to this 'definition the television receiving apparatus means any apparatus which is capable of being used for receiving telecommunications either by itself or with the addition of electric power, aerials, valves or similar other devices and it includes even any apparatus which is temporarily incapable of being so used for reasons of any defect in its com ponent parts or in electric wiring.

11. It is quite clear from reading the definitions of `Holder' and `Television Receiving Apparatus' and clauses (a), (b) and (c) or sub‑rule (3) or rule 3 that the fee is to be paid not on the use of television receiving apparatus but on its possession for if the intention was to levy licence feet only when it was used then the liability when it was incapable of being used by reason of a defect in its component parts would not have at all been imposed because that would be a case where holder of a television receiving apparatus could not use it even though for the time being only. There seems to ,be valid reason for including in the definition television receiving apparatus which is temporarily incapable of being used because of defects in its components for it will not be possible for the respondents easily or without maintaining huge staff and incurring huge expenditure to verify the claims that could be made by various television set holders on account thereof. We are fortified in our view by the definition of Holder` given in clause (c) of rule 2 of the Rules which defines 'Holder' to mean, any person for the time being in possession of a television receiving apparatus. If we peruse rule 3, sub‑rules (2) and (3) of the Rules, we fired that it is the `holder' of a television receiving apparatus who is required to, obtain licence for a television receiving apparatus as defined in clause (i).

12. Mr. Mumtaz Ali Mirza learned counsel for the respondents referred to various provisions of Wireless Telegraphy Act, 1933 whereunder the above referred Rules have been framed, particularly, section 3 thereof which prohibits the possession of wireless telegraphy apparatus without licence. In support of his arguments that it is the possession of the television receiving apparatus which creates the liability and not the use thereof he also referred. to Accused v. Emperor (A I R 1940 Nag. 26 3) the relevant passage whereof reads as follows: "The set of the applicant was capable of receiving wireless signals with the addition of one valve, power supply in the shape of a battery, and plug connection (which would come under the heading of equivalent devices). The set then does fall under the definition of complete wireless set, because although not in itself complete it becomes complete when those articles are added which are mentioned in the definition. In other words, the definition amounts to this that a `complete wireless set' shall be deemed to include an incomplete set when the parts necessary to complete it are of the description specified, aerials, valves, etc."

13. It is not necessary to discuss the other provisions of the Wireless Telegraphy Act, 1933 in detail for we are clear in our mind that even if a television receiving apparatus is incapable of being used it must suffer payment of the licence fee. The above cited case by parity of reasoning C supports the contention of Mr. Mumtaz Ali Mirza as in the definition of "Television Receiving Apparatus' is included television set temporarily incapable of being used by reason of the defect in its component parts or in the electric wiring etc. as an incomplete wireless set is included in the definition of complete wireless set under the Wireless Telegraphy Act, 1933.

14. Accordingly, we find that the liability for payment of licence fee on the slave television set is on account of their possession acid not on their use or when they are connected with the circuit for even without being connected with the circuit they are capable of being used. However, we leave the question as to what amount is payable and for what period on the 80 television sets for firstly, it is not necessary to determine the same, secondly no arguments were, advanced in that regard. WP may, however, mention that on 20th when we heard this case we appointed a Commissioner to find out how many television sets were in rise and how many slave television sets were Lying in godown. the Commissioner has submitted his report which has been placed on record. It is not necessary to refer it in detail for we are not required to determine the total amount payable on the slave television sets in possession petitioners. ' We, therefore, dismiss this petition with costs. M. B. A. Petition dismissed.