P L D 2013 Lahore 667 (PLP)

UMAR ATA BANDIAL, J.--This judgment shall also dispose of W.Ps. Nos.6280, 14470, 8168, 7246 Co., 1480/W and 9564 of 2010 as identical question of law is involved in all these petitions.

2. After hearing the learned counsel for the parties, it is apparent that dispute turns on the implementation of section 27-A of the Pakistan Telecommunication (Re-organization) Act, 1996 ("Act") which visualizes that a fee may lawfully be charged by Public Authorities for the use of Right of Way over their land by a licence under the Act for establishing and maintaining its telecom system. Admittedly, the petitioners are licensees under the Act and the respondents, Cantonment and DHA Authorities are Public Authorities as defined in the Act. Section 27-A of the Act and the definitions of "Public Authority" and "Right of Way" in section 2(mb) and section 2(qb) respectively of the Act are reproduced below: "27A. Right of way. (1) For the purpose of the installation or maintenance of its telecommunication equipment or for the purpose of establishing or maintaining its telecommunication system, every licensee shall, subject to the conditions provided in this section and the policy directive issued by the Federal Government under section 8, have the right to share any public Right of Way or Private Right of Way. (2) In order to enjoy the rights granted by this section, the licensee shall request the owner of such Right of Way to approve the mode of execution of the works it proposes to undertake. If the owner of such Right of Way does not respond to such request within a period of thirty days, such request shall be deemed to have been granted. While granting such request the owner of the Right of Way may impose such conditions as to the payment of fees and the mode or timing of the execution of such work as may be reasonable in the circumstances: Provided that any right granted by this section shall be exercised equitably ensuring proper compensation of the owner of Right of Way and the access of provide to the licensee will not adversely affect the owner of the Right of Way. (3) The licensee shall exercise the powers conferred by this section in such a manner as to cause minimal interference of the enjoyment of the Right of Way by the owner or other users thereof and if no fee are to be paid by the licensee to the owner of the Right of Way, the licensee shall make reasonable reparation to the owner of such Right of Way. (4) The fee payable by a licensee to a Public Authority, for the use of a Public Right of Way, shall be such reasonable amount as is assessed by the Public Authority after taking all relevant factors into consideration, including the laws applicable to the Public Authority and the relevant laws applicable in the district in which such Right of Way is situated. 2(mb) "Public Authority" in relation to right of way, means the local authority, corporation, Provincial or Federal Government or any other public body which owns that right of way or which is responsible for its maintenance, repair or management; 2(qb) "Right of Way" means a right belonging to any person or public authority to pass over and or property of other person to provide telecom licence services."

3. The respondent Cantonment and DHA Authorities ("respondents") claim that the impugned charge imposed and collected for the Right of Way in their land used and occupied by the BTS towers of the petitioners is levied in exercise of their right conferred by section 2-A(4) of the Act. The legal validity of periodic enhancement of such charge by the said respondents, collected under different names by them, forms the subject matter of dispute in the instant writ petition.

4. The petitioners' wider challenge to the vires of the imposed fee charged and collected by the respondents, though pressed initially, under the provisions of the Cantonments Act 1924 and the empowering legislation for the DHA Authorities, does not have force. This is because the respondents are admitted by the petitioners to be Public Authorities under the Act; and section 27-A of the Act expressly confers on Public Authorities the power to collect fee for the use of Right of Way in their land. In the above context, the Inter-Provincial Coordination Committee ("IPCC") of the Federal Government, by letter dated 21-4-2009 has conveyed its decision of 2-2-2009 to fix an amount of Rs.30,000/- as the renewal fee chargeable by local authorities for each site of a BTS tower installed within their territorial limits by telecom service providers inter alia, including the petitioners.

5. It is also a matter of record that the petitioners have since the inception of their businesses paid without objection, a charge collected under different names, to the respondents until the year 2010. The terms of the petitioners' licences also contemplate the charging of fee for the provision of Right of Way. There is thus sufficient legal and factual material on record to substantiate authority of the respondents, who own, manage or repair the site of BTS towers installed by the petitioners, to charge fee from the petitioners. Therefore, the dispute raised by the petitioners about the vires of such fee is without merit.

6. However, the petitioners' claim that has some legal weight concerns the rate of fee charged by the respondents. According to the technical terms employed by the Act, the grant of access to BTS sites and permission to install BTS towers in the territory of the respondents is treated as the conferment of a "Public Right of Way". Such a right is defined in section 2(mc) of the Act which is reproduced below: "2(mc) "Public Right of Way" means the right of way which is owned managed, maintained or repaired by a public authority;

7. As mentioned above, since the year 2010 the respondents have proceeded from time to time to substantially increase the fee chargeable for providing the location/site for the BTS towers installed by the petitioners. The respondents justify the levy and enhancement of their fee on the basis of an order dated 24-6-2005 passed by the Director General, Military Lands and Cantonment that statedly exercises the right conferred by section 27(4) of the Act to charge fee. Similarly, the respondent DHAs rely on the decisions of their respective Boards of Management to charge and enhance the impugned levy. The petitioners dispute the authority of the said functionaries to determine the policy regarding the levy and collection of fee on the Public Right of Way used by the petitioners in the land belonging to the respondents. They contend that the rate of fee chargeable is to be solely determined by the competent authority constituted by the Act which is a special law and not unilaterally by executive authorities working under different laws.

8. For securing rights to do their business in Pakistan the petitioners have paid a heavy fee of US$ 2.0 billion to the Pakistan Telecommunication Authority ("PTA") the public regulator constituted under the Act. The PTA is the statutory licencing authority of the Federal government for regulating the establishment, operation and maintenance of telecommunication system and provision of telecom service in Pakistan. The licence rights conferred by PTA on the petitioners visualize and include the charging of fee on installation of the telecom network of the petitioners. As the business of the petitioners is controlled by the terms and conditions of their licence therefore the petitioners' obligation to pay fee cannot be disputed.

9. However, neither the Act nor Regulations framed thereunder nor the PTA have specified the quantum of fee chargeable by a Public Authority for the provision and use of a Public Right of Way to a licencee. Also it is crucial to note in the foregoing respect that neither the Director General Military Land and Cantonment nor the Boards of Management of DHAs have any authority under the Act to determine the policy regarding charging of or rate of fee, as in the present case, for use of a Public Right of Way by the petitioners. More specifically the legal power and capacity of the said functionaries is derived from the parent legislation, namely, the Cantonments Act, 1924 or the DHA Presidential Orders respectively. These laws lack any technical and financial mechanism for regulating the provision of telecom services nor these spell out the terms and conditions for charging fee from telecom service providers in their respective areas.

10. The PTA is the competent regulator having statutory jurisdiction and authority in the matter of charging fee for the use of a Public Right of way by telecom licencees. However, as noted above the PTA has neglected to act at all in the matter; resulting in the dispute between the parties that is raised before the Court. For example, the PTA has taken no steps to get the IPCC decision dated 2-2-2009, mentioned above, notified either as an order by itself or by the Government of Pakistan. Although the Provincial Governments and local authorities are abiding the said decision of the IPCC, the respondent Cantonment Boards and the DHA authorities have validly objected that the IPCC decision cannot have legal force to bind Public Authorities as defined in the Act unless that decision is endorsed and notified by the competent authority under the Act or else by the Federal Government.

11. At this stage it becomes clear that the dispute between the parties is the consequence of inaction by the regulator PTA to step in and resolve such dispute. Much water has flown under the bridge after differences cropped up between the parties in 2010. This has eroded the credibility of PTA to deal with and determine the matter. Nevertheless, it is the Federal government that exercises authority over the Cantonment Boards, the DHAs in the country and the PTA. In the circumstances of the case, the appropriate authority to deal with the dispute between the parties is therefore the Federal Government.

12. In the said view of the matter, the appropriate course of action is to constitute a committee for joining the PTA to resolve the dispute between the parties. Such an initiative is supported by the parties; indeed owing to PTA's inaction and inability in the matter, the Federal Government must play a role to enforce the applicable law, namely, the Act, and to safeguard and protect the respective rights of the parties.

13. Based on input by the parties regarding composition of the committee it is ordered that the Secretary Cabinet Division shall chair the committee comprising Secretary Ministry of Defence and Secretary Ministry of Information and Technology as its members and with Chairman PTA as its Secretary. The Committee shall hear the petitioners and the respondents in order to determine the existence, and if so, the extent of a legal right of the respondents to charge fee in excess of rates and amounts fixed by the IPCC decision. The committee shall also determine whether the respondents in comparison to other Public Authorities render any service or confer any privileges to the class of persons to which the petitioners belong, that justifies differential treatment of such persons by the respondents.

14. The decision by the Committee shall be rendered after hearing the affected parties and for reasons recorded in writing. Such decision shall be notified and enforced by the PTA in accordance with law. Until the decision of the committee is duly communicated in writing, the existing rate of fee being charged by the respondents from the petitioners shall remain in effect. The decision by the Committee shall be announced within three months from the date of receipt of a certified copy of this order. KMZ/P-14/L Order accordingly.